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A city with no sovereign: The Jerusalem passport case

The U.S. Supreme Court rules that the State Department can continue refusing to print ‘Israel’ as the place of birth for American citizens born in Jerusalem. ‘Neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem,’ Justice Kennedy writes in the majority opinion.

By Lolita Brayman

Stock photo of the United States Supreme Court in Washington DC (Orhan Cam/Shutterstock.com)

Stock photo of the United States Supreme Court in Washington DC (Orhan Cam/Shutterstock.com)

The U.S. might be Israel’s strongest ally but that doesn’t mean Washington is willing to toe the Israeli line on the status of Jerusalem. For decades, the United States’ policy has been in line with the rest of the international community, not recognizing Jerusalem as Israel’s capital. The rationale is that since the city’s only internationally accepted legal standing is that of an international city, a product of the 1947 Partition Plan, its contemporary status must be determined via negotiations — and not unilateral declaration.

The U.S. Supreme Court made a historic decision on Monday that rightly placed the politics of foreign affairs, and the Israeli-Palestinian conflict, outside its sphere of objectivity. In a 6-to-3 vote, the majority of justices struck down a 2002 congressional regulation that allowed those born in the city of Jerusalem to record the place of birth as Israel in their passports.

The case was about Section 214(d) of the Foreign Relations Authorization Act, passed by Congress in 2002, which in contradiction of State Department’s guidelines allowed for listing only a city on a passport if a nation’s borders are in dispute. Moreover, under the U.S. Constitution, Congress is not permitted to interfere with the president’s authority to determine terms on which recognition is given to foreign states.

The validity of the congressional policy was brought to the Supreme Court by the parents of Menachem Binyamin Zivotofsky, who wanted their American son’s passport to list “Israel” as the place of birth and not simply “Jerusalem,” where he was indeed born in October 2002. When the case was first heard in 2012 by the Supreme Court, the majority opinion stated that the constitutionality of the statute could be resolved by the U.S. Court of Appeals because it was a separation of powers issue, even though such a decision might touch on political areas.

Fast forward to this Monday. The status of Jerusalem remains undetermined and the Supreme Court still refused — this time more definitively — to get tangled up in the weeds of diplomacy and foreign affairs. The State Department can continue to refuse to print “Israel” as the place of birth for U.S. citizens born in Jerusalem.

So what’s really the difference between writing “Jerusalem, Israel” and just “Jerusalem” on an American passport? Are the two not synonymous as far as the 1967 occupation of East Jerusalem is concerned?

Not to most Palestinians. Not to those who squarely deny Israel’s right to exist in any form. But most importantly in this case — not to the American government. Even if “West Jerusalem, Israel” was listed as the birthplace on Zivotofsky’s passport, the executive and legislative branches of the U.S. government would likely disagree on the implications of such a classification.

The Jerusalem skyline. (Photo by Shutterstock.com)

The Jerusalem skyline. (Photo by Shutterstock.com)

U.S. Supreme Court Justice Elena Kagan said it best: “history suggests that everything is a big deal with respect to the status of Jerusalem.”

The U.S. Supreme Court did not decide on the status of Jerusalem but it still got sucked into a political power struggle by simply uttering the name of the city. In Justice Kennedy’s opinion, which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined, he blatantly said: “neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem.” A neutral comment, but nonetheless loaded. When it comes to Israel and Palestine, going to court is never just about judicial redress — even in the highest of American courtrooms.

Justice Kennedy’s above admission on Jerusalem’s sovereignty was never a secret and always implicitly implied in U.S. and Israeli relations. In fact, all foreign embassies in Israel, including the American one, are located in Tel Aviv and not Jerusalem because no country in the world recognizes it to be Israel’s capital. The few embassies that remained in Jerusalem moved to Tel Aviv in the early 1980s in protest of the passage of a Basic Law in Israel declaring the Holy City the capital.

But despite there being absolutely no ambiguity on the issue, the Supreme Court’s decision will nevertheless be perceived as a blow to the Israeli lobby and Prime Minister Netanyahu will likely spin it as yet another instance of the world being against Israel. Moreover, pro-Israel lobby groups will almost certainly make this a significant issue in upcoming campaigns. Meanwhile, the American-Arab Anti-Discrimination Committee (ADC) has already issued a celebratory statement.

In his dissenting opinion, Chief Justice John Roberts minimized the majority’s concern to a mistaken understanding of the effect of the law, specifically that some observers overseas would interpret it as altering U.S. policy regarding Jerusalem: “expanding the President’s purportedly exclusive recognition power to include authority to avoid potential misunderstandings of legislative enactments proves far too much.”

Potential misunderstandings exist no matter the outcome, as is the nature of the conflict. But the dissenting justices fail to recognize that the main purpose of the 2002 congressional statute was to undermine the executive branch’s policy regarding Jerusalem. Moreover, it would be a violation of international law to recognize a unified Jerusalem as belonging wholly to Israel. In response to the Knesset’s adoption of the “Jerusalem Law” in 1980, which declared a complete and united Jerusalem as the capital of Israel, the UN Security Council subsequently and unanimously adopted Resolution 478 declaring the law void.

The U.S., of course, abstained from that Security Council vote, but over the years has dealt extremely vague interpretations of the status of Israel’s annexation of East Jerusalem and Jerusalem’s municipal boundaries. Since 1967, the U.S. viewed East Jerusalem as being under Israeli occupation but the Clinton administration changed that, stating its sovereignty was undefined. Since then Congress has repeatedly tried to unite Jerusalem legislatively, with the Jerusalem Embassy Act of 1995, and later again, albeit more subtlety, with the Jerusalem Passport Law in 2002. But presidents Clinton, Bush, and Obama refused to enact these laws, viewing them as constitutional violations of their executive authority — and ostensibly recognizing their potential to prejudge the outcome of the peace process.

Now that the Supreme Court has finally weighed in on the matter, Washington’s ambiguous stance on Jerusalem’s status will likely remain ambiguous. And while the U.S. legislative and executive branches continue to step on each other’s toes, the status quo in the region will also remain intact.

Lolita Brayman is a lawyer and former editor at Haaretz.com with an M.A. in conflict resolution and mediation from Tel Aviv University. Follow her on Twitter at @lolzlita.

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    COMMENTS

    1. Ginger Eis

      Basic Laws of Israel: Jerusalem, Capital of Israel

      1. Jerusalem, complete and united, is the capital of Israel.

      2. Jerusalem is the seat of the President of the State, the Knesset, the Government and the Supreme Court.

      Jerusalem has ‘de jure’ as well as ‘de facto’ A Sovereign! Anyone is welcomed to hallucinate, rant and claim otherwise. That’s called free speech. But, at the end of the day, NO human of flesh and blood can change that basic fact that the Jewish State Is THE LORD and the SOVEREIGN In Jerusalem.

      End Of Story!

      Reply to Comment
      • BigCat

        That’s right!

        Moreover, there is an undeniable absolute Jewish majority in the so-called “East” Jerusalem alone. I wonder how those who deny the Jewish Sovereignty in J’lem are gonna square that circle.

        Reply to Comment
        • Bruce Gould

          The numbers of Jews and Palestinians in Greater Israel are roughly equal (6-7 million), but only one ethnic group controls everything. How that circle will be squared is the really interesting conversation.

          Reply to Comment
      • Yeah, Right

        Ginger, a squat is a squat is a squat, and sitting on top of a squat yelling “It’s Mine! Mine! Allllllll Mine!” is no more impressive simply because it is Israel that does it.

        After all, all that Israel is doing amounts to nothing more than a very good Daffy Duck impersonation.

        Ali Baba Bunny (1957, Warner Bros) springs to mind.

        You might want to look that one up, and see how well things turned out for Daffy.

        Reply to Comment
    2. Lo

      I’m glad to see the SCOTUS uphold the idea that Israel-firsters in the Congress and their lobbyists cannot override a sitting president when he stands by decades of U.S. foreign policy.

      No country recognizes Israel as the sovereign of Jerusalem, which is still defined as an international city in international law. This truly is the most equitable dispensation of the territory. Despite the protestations of adherents of each of the monotheistic faiths, the secular solution is the only one that can reasonably accommodate the desiderata of all stakeholders.

      Reply to Comment
      • Ginger Eis

        “the Israel-firsters in the Congress”….

        You are really very good in blowing the anti-Semitic dog-whistle, aren’t you? Most healthy minds do not engage in blowing anti-Semitic dog whistles as you do, because it is and intellectually very demanding stuff to do. Thus, congratulations for your excellent intellectual input with that “the Israel-firsters in the Congress” cliché.

        Regardless,

        1. Today, Jerusalem is formidably and staunchly the Capital Of The Jewish State with over 80% Jewish majority! The facts on the ground has already decided the fate of Jerusalem. That’s what matters. And one day ONE US President will have the Courage to hit the nail on the head and let the chips fall where they may!

        2. All religions represented in Jerusalem are guaranteed in law and in practice FREEDOM OF WORSHIP by the Jewish State. All religious groups have unfettered access to their Holy Places – with the exception of Jews in some cases, because Israel falls all over herself to please the Muslims.

        3. If the Muslims had Sovereignty and Majority in Jerusalem, there would be no calls to “internationalize” Jerusalem as you and your ilk do now. But whatever Jews have, whatever Jews cannot live without, must be “divided” or “internationalized”, etc. That – IMO, is envy, hypocrisy and a form of (suppressed) anti-Semitism!

        Reply to Comment
      • BigCat

        I see that you are always viewing everything with your anti-Semitic goggles. “Israel-firsters in the congress and their lobbyists”, huh? Somehow my fellow Americans can’t support Israel without being accused of dual loyalty and/or treason by anti-Israel/anti-Jewish hate-mongers, but everyone incl. Congress men and women has got a free ticket to support any other country or people incl. the Arabs/Palestinians as much as he/she wants and as long as that country is NOT Israel and as long as the people supported are not Jews? Are you really just plain stupid or just hateful or both? Oh dear….

        Reply to Comment
    3. Yeah, Right

      Interesting that no-one is mentioning the wider implications of this statement:
      “The rationale is that since the city’s only internationally accepted legal standing is that of an international city, a product of the 1947 Partition Plan,”…

      If that is true of Jerusalem then it must also be true of the other two pegs of that tripod i.e the borders of the “Jewish state” and the borders of the “Arab state” as defined by that same 1947 Partition Plan.

      Or, put another way: if the Partition Plan had legal standing with regard to the status of Jerusalem then it is axiomatic that… the Partition Plan has legal standing, which has much, much wider implications than just the Status of Jerusalem.

      Which would mean that the Partition Plan is not quite the Dead Letter that the Zionists have always claimed it to be….

      Reply to Comment
    4. Gustav

      No problems.

      We will live with the decision of THIS American president till a more reasonable American president comes along who will recognize that UN resolution 181 was a non binding resolution which Jordan ignored for 19 years and which we too have the right to ignore.

      After all, the Arabs set the precedent and no one acted against THEM. So presumably, a more reasonable American president than the current president, will realize the true history of this city to which we always had a connection. Admittedly, our job is to make sure that we will treat the non Jewish population fairly. Unlike the Jordanians who allowed our sacred sites to be desecrated and did not allow us to set foot in the city. We have to be better than that.

      Reply to Comment
      • Yeah, Right

        Gustav: “After all, the Arabs set the precedent and no one acted against THEM.”

        Nobody is acting against Israel either, or haven’t you noticed?

        The President of the United States is not forming a coalition of the willing to send armoured divisions roaring into Jerusalem to evict the IDF, or haven’t you noticed?

        Israel is insisting that everyone recognize an illegal act, and nobody is willing to do so, just as nobody was willing to recognize Jordan’s claim to have annexed the West Bank.

        But they aren’t “acting” against Israel, any more than they “acted” against Jordan.

        They are simply… refusing to get into the playpen and join Israel little game of Let’s Pretend.

        And rightly so, because in this situation they are The Grownups.
        But Israel? Heh, Israel, not so much. More The Spoilt Brat.

        Reply to Comment
        • Gustav

          GUSTAV: “After all, the Arabs set the precedent and no one acted against THEM.”

          [Yeah Right]:”Nobody is acting against Israel either, or haven’t you noticed?”

          The President of the United States is not forming a coalition of the willing to send armoured divisions roaring into Jerusalem to evict the IDF, or haven’t you noticed?”

          Right and your point is? My point again was that they shouldn’t act against us either. Are you agreeing with me? Now you are getting me worried. This is a world’s first.

          [Yeah Right]:”Israel is insisting that everyone recognize an illegal act, and nobody is willing to do so, just as nobody was willing to recognize Jordan’s claim to have annexed the West Bank.”

          Israel is insisting on nothing. We are requesting that the world should recognize our capital. Don’t wanna? It won’t change anything.

          [Yeah Right]:”But they aren’t “acting” against Israel, any more than they “acted” against Jordan.

          They are simply… refusing to get into the playpen and join Israel little game of Let’s Pretend.”

          Yes, we both said that already. I bet you like the sound of your own voice, don’t you, [Yeah Right]?

          [Yeah Right]:”And rightly so, because in this situation they are The Grownups.
          But Israel? Heh, Israel, not so much. More The Spoilt Brat.”

          Grown ups? Or those who pretend to be grown ups? Scratch a little and you find that the majority of humans are hypocrites. And pompous people like you, [Yeah Right] are amongst the leading hypocrites.

          Reply to Comment
          • Gustav

            … unfortunately I overlooked this bit of nonsense by our [Yeah Right]…

            [Yeah Right:”that everyone recognize an illegal act”

            Which bit of “illegal act” dearie? If you mean the declaration of Jerusalem as our capital then you are halucinating again. Because as I said before, UN GA resolution 181 was non binding. As such, Jerusalem has never been an international city by law.

            Reply to Comment
      • Giora Me'ir

        181 is not binding? Then I guess other countries, territories and individuals have a legal basis for not recognizing Israel’s right to exist.

        Reply to Comment
        • Ginger Eis

          Giora,

          UNGA Resolution: A/RES/181(II, 29 November 1947, did not create The State Of Israel, is not binding on any State and any State could have recognized Israel with or without it. THE DECLARARION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL of May 14, 1948, otherwise known as The Declaration Of Independence brought the Jewish State into existence. On May 14, 1948, the British Mandate expired. On that Blessed Day, the Jewish People’s Council gathered at the Tel Aviv Museum and Spoke The Following Solemn Words Establishing The State Of Israel:

          https://www.youtube.com/watch?v=Vy_LlKE9OMQ

          Am Yisrael Chai!

          Reply to Comment
        • Gustav

          @Giora

          Here, educate yourself…

          http://en.m.wikipedia.org/wiki/Non-binding_resolution

          “All United Nations General Assembly resolutions that are not about matters internal to the UN (such as the structure of the UN or the creation of UN agencies) are inherently and explicitly (in the UN Charter) non-binding.
          The United Nations Security Council has the power to pass both binding and non-binding resolutions; whether a resolution is binding depends on what section of the Charter it is enacted under.”

          …and it is a well known fact that UN Resolution 181 was a General Assembly Resolution.

          Now, if you think that other countries have a legal basis for not recognizing Israel?

          What a question. It just does not matter. And indeed many Muslim and Arab countries still don’t recognize our existence. That is sad. But we still exist. And many other countries did and do recognize that we exist. Those who don’t want to recognize our existence are just flat earthers, Giora dear.

          Reply to Comment
    5. Ben Zakkai

      I would have loved to have been a fly on the wall in the room where the justices discussed this case among themselves before writing their opinions. Justice Kennedy, a Republican appointee but often the moderate swing vote on the Court, wrote the majority opinion. Justices Ginsburg, Breyer and Kagan, the Jewish members of the Court, all three appointed by Democratic presidents, supported the result; Ginsburg and Kagan (along with Justice Sotomayor, also a Democratic appointee) joined in the majority opinion without writing separately, while Breyer wrote a brief concurrence stating that in his view the case posed a political question that ought not to be decided by the court at all, but since it was being so decided, he supported the result. Among the remaining Republican-appointed members, Chief Justice Roberts and Justices Scalia and Alito opposed the majority’s result, while Justice Thomas split the baby by supporting the majority’s result regarding passports but opposing it as applied to consular reports of birth abroad. I wonder what kinds of considerations and pressures affected the Jewish justices in arriving at their decisions, and to what extent this decision is part of a Republican-Democrat split on policy towards Israel.

      Reply to Comment