Of Jerusalem and U.S. Passports: Q&A

The Zivotofsky family will argue to the U.S. Supreme Court Monday that the State Dept. should register Israel as the place of birth of its son. What's the deal?

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Haaretz
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Ari Zivotofsky, right, standing with his nine-year-old son, Menachem, outside the Supreme Court in Washington, Nov. 7, 2011.Credit: AP
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Haaretz

What is the case about?
Zivotofsky v. Kerry is a case brought to the U.S. Supreme Court brought by American-Jewish couple Ari and Nomi Zivotofsky, who want to register the birthplace of their son Menachem, who was born in Jerusalem in 2002, as Israel in his passport.

Why won't the United States register "Israel" in Menachem's passport?
The United States considers Jerusalem disputed territory according to international law, and as such has never agreed to register any country for a citizen born in Jerusalem since the end of the British Mandate in 1948.

What is the official status of Jerusalem, according to international law?
Jerusalem's final status was never properly settled. The United Nations passed Resolution 181 in Jerusalem, which called on Jerusalem to be put under control of a "Special International Regime," and that its final status would be determined after a 10-year transitional period. However, the plan was never implemented because of the 1948 Arab-Israeli war that left the city divided between Israeli and Jordanian control. Both countries ignored UN General Assembly Resolution 303, which reaffirmed the call for an international regime in Jerusalem.

What happened to Jerusalem after 1948?
The Knesset declared Jerusalem the capital of the State of Israel by a 60-2 vote on January 23, 1950.  Jordan formally annexed East Jerusalem, along with the West Bank, on April 24, 1950, contravening an Arab League resolution earlier that month prohibiting the annexation of any part of Palestine. A month later, Jordan declared a compromise formula by which the annexation "was without prejudice to the final settlement of the Palestine issue."

The United States never recognized the formal incorporation of Jerusalem into either Israel or Jordan.

Did the unification of Jerusalem in 1967 change anything?
Israel captured East Jerusalem in the Six Day War of 1967 and extended Israeli "law, jurisdiction and administration" over the area on June 28, 1967. The United Nations has passed several resolutions since the Six Day War rejecting Israel's claims to sovereignty over East Jerusalem.

The Knesset passed a Basic Law in 1980 declaring that "Jerusalem, complete and united, is the capital of Israel." The declaration prompted several Western countries that had until that time kept embassies in Jerusalem to move them to Tel Aviv. El Salvador and Costa Rica became the last countries to relocate their embassies out of Jerusalem, when they left in 2006.

During this entire period, the position of the State Department regarding Jerusalem's status never changed. However, the U.S. Congress passed a regulation in 2002 that would form the basis of the Zivotofsky family's case.

What is the Zivotofsky family's case?
A few months before the birth of Menachem in 2002, Congress passed a regulation as part of the Foreign Relations Authorization Act, which stated that "[f]or the 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." However, the State Department refused the Zivotofsky's request to register Israel as Menachem's place of birth. The family thus went to the courts to force registry of his birthplace as Israel based on the 2002 regulation.

What is the government's case?
When President George W. Bush signed the Foreign Relations Authorization Act, he issued an executive "signing statement" explaining why he would not comply with the new regulation, which was found in Section 214 of the law. "Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch," he wrote. "Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed."

What has been the fate of the family's case to date?
While the U.S. District Court of the District of Columbia dismissed the case on the grounds that it could not rule on a political question, the U.S. Court of Appeals in D.C. overruled the district court, holding that the question was one of Congressional policy. While the district court again refused to rule because it did not want to take a position on the political status of Jerusalem, the U.S. Supreme Court in 2012 ruled that the courts could indeed hear the case.

What happens next?
Oral arguments are set to commence on Monday.

How big is Jerusalem anyway?
The size of Jerusalem has grown dramatically over the past 150 years. The Old City, which encompassed all of Jerusalem until the 1860s, was one square kilometer. After 1948, West Jerusalem was approximately 38 sq. km., while East Jerusalem was 6 sq. km. Israel expanded Jerusalem to 70 sq. km. when it officially unified the city in 1967. Jerusalem's municipal boundaries now encompass 125 sq. km.

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