Passport to Jerusalem: The Zivotofsky case

The recent foiled-once-again Israeli-Palestinian talks have showed that sometimes politics hold up the production of a legal result, in the form of a binding agreement. The recent U.S. Supreme Court decision to hear the Zivotofsky case has demonstrated the opposite, namely that sometimes politics must not constitute an obstacle to a legal pronouncement, this time in the form of a judicial decision.

The Court’s approach should be deemed as expectable. In a case dragging from 2002, the Supreme Court has already once held that the issue in its core — whether passport registration of Israel as place of birth for a Jerusalem-born U.S. citizen lies in the realms of exclusive presidential authority — should be deemed as justifiable. On a different tone, echoed also by the Court of Appeals judgment, the Administration has argued that since Jerusalem has not been recognized as Israel’s capital and the President holds the exclusive power to recognize foreign governments, any judicial pronouncement on Israel’s association with the city, the moment its final status should be resolved through negotiations between Israel and the Palestinians, is precarious.

Yet, as Justice Alito correctly notes in the first Supreme Court decision on the case, the latter should be seen detached from any political, foreign policy implications. For U.S. courts the question of Israeli or Palestinian sovereignty over Jerusalem should be irrelevant. As long as there is also a possibility for an Arab Jerusalem to exist alongside Jewish Jerusalem, U.S. Courts can be ascertained that acknowledging Jerusalem as part of Israel does not preclude the scenario of Jerusalem being the capital also of a Palestinian state. Such an Arab Jerusalem has been recognized by the international community in various instances. Already in the U.N. General Assembly, the Palestinians have been accepted as a state with East Jerusalem as its capital. Consequently, if East Jerusalem belongs to the Palestinian state, West Jerusalem belongs to Israel. Even the two parties, Israel and the Palestinians seem to acknowledge this. Negotiations are not held on whether West Jerusalem should be Israel’s capital or the city’s eastern part the capital of the future Palestinian state, but rather on which parts of the city should comprise East Jerusalem.

Not by accident, the U.S. has de facto recognized Israeli sovereignty over West Jerusalem. U.S. officials meet there with their Israeli counterparts. The U.S. ambassador presents his credentials there to the Israeli president.

Menachem Zivotofsky was born in West Jerusalem. While the U.S. correctly acknowledges that states occupying another country cannot be inscribed in the U.S. passports place of birth section, in the case of Jerusalem, Israel, as long as it is deemed the lawful sovereign at least in part of the city, can associate its polity with it. Both the law passed by Congress as well as the aspirations of Israel and the Palestinians regarding the city’s final status refer to “Jerusalem” in general with no geographical prefixes. While “West Jerusalem” is only Israel and “East Jerusalem” only Palestine, “Jerusalem” can equally pertain to both.

Although till 1967, like the West Bank, East Jerusalem was under Jordanian rule, the U.S. policy in passport place of birth inscription ordains that Jerusalem should be marked separately as a place of birth from the rest of the West Bank. As such, this signifies that Jerusalem even in its current status is bound to a different treatment from the rest of the occupied territory and should be awarded a different status altogether.

This “different status” rationale is reminiscent of the 1947 Partition Plan’s provisions for Jerusalem to be placed under a special status, as an international city. If the U.S. passport position, even tacitly embalms such a stance, this should be alarming. While officially still the position of the European Union as well as that of the Vatican, the city’s internationalization platform should be deemed as obsolete following international recognition of East Jerusalem as the capital of the future Palestinian state. What is left is ultimately the recognition that Jerusalem can be the capital also of the Jewish state. And this is what the Zivotofsky case is all about.