Once again the United States Supreme Court is preparing to review a case which could reshape one of the most sensitive of American policy issues: the status of Jerusalem. Zivotofsky v Kerry is a lawsuit brought on behalf of an 11-year-old Jewish child born in Jerusalem. Current American law and practice, particularly State Department instructions to consular officials, holds that because of American neutrality on the question of Jerusalem, those born in Jerusalem should simply be identified as having been born in that city. The Zivotofsky family seeks to have their son identified as having been born in "Jerusalem, Israel."
A lower court has already struck down other parts of a 2002 law allowing for US passports to include the identification of birthplace as "Jerusalem, Israel." All previous efforts to get courts to force the State Department to take this step have been refused by all administrations and backed up by the judiciary. But the legislative branch continues to attempt, for political reasons, to circumvent this position. It's imperative that the Court continue to support the administration's position, which upholds more than 60 years of US policy, international law, and the basic US constitutional principle of separation of powers.
Since 1948, no country has recognized Israel's control of Jerusalem, which is why all foreign embassies in Israel are based in Tel Aviv or other cities. A few, such as El Salvador and Costa Rica, briefly moved their embassies to Jerusalem, but have since withdrawn. The reason is that Jerusalem's status under international law is unresolved. The last time the international community addressed the question in a positive manner was in the 1947 partition plan which declared the city a "corpus separatum" – in effect, an independent city-state to be administered by the United Nations.
The 1948 war put paid to that idea, but the status of Jerusalem was not determined by either armistice lines, the entrance of Israel as a member state of the United Nations, or the recognition of Israel and diplomatic relations with it by the majority of international powers. This ambiguity was expressed by the presence of the embassies in Tel Aviv, even though Israel had come into possession of West Jerusalem and established its capital there.
The situation became even more complex following the 1967 war, when East Jerusalem was conquered by Israel and subsequently annexed. This de facto annexation was roundly rejected by the entire international community, including the United States, and particularly expressed through a long series of unambiguous United Nations Security Council resolutions. Most notable of these was the June 1980 Resolution 476, which "[r]eaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem."
All relevant UN Security Council resolutions since Israel extended its "Basic Law" to the municipal boundaries of East Jerusalem it established, much bigger than the municipal boundaries that existed before, have declared that de facto annexation to be "null and void." US policy, established by every administration since Harry Truman's, has been absolutely consistent: the future of Jerusalem is to be determined.
Since 1993, Jerusalem has been a core part of the four agreed-upon final status issues to be resolved through direct Palestinian-Israeli negotiations. The US is the primary third-party broker between Israel and the Palestinians. Therefore it, above all, cannot be seen as prejudicing final status issues.
The American Congress repeatedly tries to circumvent all of this and prejudice the issue of Jerusalem, abandoning traditional US policy and core international law by passing legislation designed to force the administration to move the embassy to Jerusalem, recognize "Jerusalem, Israel" on passports, and similar measures. Such steps violate both the letter and the spirit of the constitutional separation of powers by usurping the executive's role as the authority that determines American foreign policy. These laws almost always come with a presidential waiver, which is also invariably enforced. This way Members of Congress are able to reassure their constituents that they are doing the best they can, while keeping an important loophole in place that allows foreign policy to be determined by the executive branch as the Constitution mandates.
When he signed the law now being reviewed – again – by the Supreme Court, President George W. Bush was at pains to say "US policy regarding Jerusalem has not changed."
If the American judiciary allows the legislative branch of the government to force the executive to change an extremely sensitive and important policy that has stood for over 60 years, it will be a constitutional travesty. It will also be a serious blow to the US viability as a third-party broker that urges both sides not to prejudice final status issues. We will have done just that ourselves, in a capricious and indefensible manner. The Supreme Court must rule to uphold international law, long-established US policy, and the separation of powers. Any other decision will do grievous harm to all three.