Tuesday, June 09, 2015

The State Dept. Misled the Supreme Court On Zivitofsky

As the State Department justification for its non-recognition of Jerusalem as Israel is that all of Jerusalem was part of the recommended (never decided upon and rejected by Arabs) corpus separatum status of Jerusalem as included in the UN GA Partition Plan, there's a problem with the State Dept. regulation.

Bethlehem, Beit Sahour, Beit Jalla, Beit Hanina, Shoafat, etc. were also within the area of the corpus separatum according to the partition plan.  And as the State Dep't made clear in 1963:

...the geographic area of Jerusalem was the same; i.e., as defined in Resolution 181...the geographic boundaries of this area are as set forth in Resolution 181...This basic U.S. view concerning the geographic definition of the area describes also the area of jurisdiction of the United States Consulate General in Jerusalem.

As I posted six years ago, and passed on my findings, the State Dept designates US citizens born in those places differently than they do citizens born in Jerusalem:

...f. Birthplace in Jerusalem: For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem. For applicants born before May 14, 1948 in a place that was within the municipal borders of Jerusalem, enter JERUSALEM as their place of birth. For persons born before May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, enter either PALESTINE or the name of the location (area/city) as it was known prior to annexation. For persons born after May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, it is acceptable to enter the name of the location (area/city) as it was known prior to annexation.

In my understanding, the State Dept. arbitrarily recognizes municpal boundaries when it suits political persuasions rather than law or legalities.  If the corpus separatum is the basis, the boundaries of that entity still hold for today.  But the State Dept. 'relaxes' its definition of territory and makes 'holy' municipal borders'.  That's not fair.

Moreover, as the State Dept designates US citizens born in those places as in the West Bank [a state that doesn't exist now and didn't exist then], the prejudice is blatant.

Did the State Dept. mislead the Supreme Court?


P.S.   Rick Richman at The NY Sun has another problem for the State Dep't.


Some additional excerpts from State Dept. documents on its Jerusalem policy as background:

Washington, January 26, 1950—7 p. m.secret

In US view it is not consistent with present status UN consideration Jerusalem question for Israel to establish its capital in that city. US regrets note that Israel apparently does not share US view that no steps shld be taken which wld be prejudicial to final settlement Jerusalem problem...Recent action of Israeli Govt in obtaining Knesset approval of Govt-sponsored resolution concerning Jerusalem as capital of Israel will in US view make such settlement more difficult to reach.

Since Jerusalem question sub judice in UN, USG unable accede Eytan suggestion*.

In US view, basic problem is to obtain solution of Jerusalem question by a settlement which will safeguard legitimate interests of parties most directly concerned and of international community...Acheson

* on January 19, Mr. Eytan had approached Ambassador McDonald as Dean of the Diplomatic Corps with information that the Israeli Government was ready to cooperate with foreign missions in preparing for their offices and residences in Jerusalem. The Ambassador replied informally that his “categorical instructions re Jerusalem indicated that US Government would not be willing make any move now even of the most tentative kind in direction move Jerusalem.” (784A.02/1–2050)

784A.02/1–450: Telegram

The Secretary of State to the Embassy in Israel
Washington, January 4, 1950—5 p. m.secret

1. US does not recognize sovereignty of Israel in Jerusalem.3 UN is seized of Jerusalem problem, and US attitude toward status of city will continue be framed in light UN situation.
2. US continues to support principle internationalization of Jerusalem along lines modified regime such as that proposed by PCC.
3. Dept does not desire Emb Tel Aviv to conduct official business in Jerusalem with Israeli Central Govt officials who may move there. FonOff in Tel Aviv provides normal means contact Israeli Govt for foreign dipls. If Israeli Govt shld seek persuade Emb reps carry on official business with Central Govt officials in Jerusalem, Emb reps shld state they not authorized do so. From time to time it will of course be necessary for Emb to deal with important Israeli officials whose offices have been transferred to Jerusalem, but Dept believes these officials will spend part of their time in Tel Aviv where official business can be conducted with them. If need arises Emb shld make clear to Israeli Govt that in present circumstances it can only conduct official business with Govt officials outside Jerusalem area.
4. Dept continues desire that Ambs visits to Jerusalem for unofficial purposes be restricted to absolute minimum.

5. No objection contact by ConGen Jerusalem with such Israeli ministries as may be in Jerusalem, on routine consular affairs affecting Jerusalem area only. If need arises both Emb and ConGen shld make clear to Israeli officials that Emb continues to be sole US dipl representation near Israeli Govt. Of course no objection to non-official courtesy and social contacts between Reps ConGen and Israeli Central Govt officials stationed in Jerusalem.


Memorandum by Mr. Leonard C. Meeker of the Office of the Legal Adviser to the Officer in Charge of Palestine–Israel–Jordan Affairs (Wilkins)

[Washington,] January 13, 1950.
Subject: Consular Exequaturs in Jerusalem

A legal opinion has been requested by NEA concerning the position which the United States should take if the Government of Israel now requests this Government to apply to Israeli authorities for exequaturs for American consular officials in Jerusalem. In a memorandum to Mr. Rusk dated December 9, 1949,1 Mr. Jernegan2 recalled that the Turkish Embassy in Washington had received such a request from the Israeli Embassy concerning Turkish consular representatives “in Israel and in territory controlled by Israel”. In that memorandum Mr. Jernegan expressed the view, which he believed was probably shared by the Turkish Embassy, that an answer to the request of the Israeli Ambassador would be dependent on action taken by the General Assembly at its Fourth Session concerning the internationalization of Jerusalem. On December 9, 1949 the General Assembly in fact adopted a resolution on internationalization.

In the light of this resolution, the United States, as a Member of the United Nations, should not take any steps with respect to the functioning of American consular officers in Jerusalem which would recognize the sovereignty of any national state in that area. However, it would not be inconsistent with the obligations of the United States as a United Nations Member to maintain consular officers in Jerusalem by agreement with the Israeli or Jordan Government, on a de facto basis and without exequaturs. It would also seem permissible to seek and accept exequaturs for such officials in Jerusalem if it were clearly understood that such action did not involve recognition by the United States of Israeli or Jordan sovereignty in Jerusalem. If, however, the national states concerned would not agree to issue exequaturs with such an understanding, but only on the understanding that recognition of sovereignty would be implied, then the United States ought not to apply for and obtain exequaturs for its consular officers in Jerusalem.

The General Assembly resolution of December 9, 1949, providing for a special international régime for Jerusalem, was based implicitly on the theory that the Assembly had the right to determine the status and future government of Jerusalem. The chain of reasoning would run somewhat as follows:

(a) In the World War I settlements Turkey renounced all rights and title to certain areas including Palestine, “the future of those territories and islands being settled or to be settled by the parties concerned.”
(b) Prior to the Treaty of Lausanne, in which this renunciation was made, the Supreme Council of the Allied Powers had met at San Remo and allocated Palestine to be placed under mandate (Class A), pursuant to Article 22 of the Covenant of the League of Nations, with Great Britain as the mandatory power.
(c) Under the mandate instrument approved by the Council of the League of Nations, the mandate was subject to modification with the consent of the League Council and could be terminated by the mandatory power.*
(d) At the request of the mandatory power made early in 1947, the United Nations General Assembly made a recommendation concerning the future government of Palestine in the Assembly’s resolution of November 29, 1947. This recommendation, “accepted” by the mandatory power, contained provisions for an internationalized City of Jerusalem under United Nations control, apart from the Jewish and Arab States to be created in Palestine.
(e) Although the Statute for Jerusalem which the United Nations Trusteeship Council drafted pursuant to the November 29 resolution was not placed in operation upon the termination of the British mandate for Palestine (May 14, 1949),† Jerusalem remained at the disposition of the United Nations.
(f) Through its resolutions of May 6, 1948 and December 11, 1948,‡ the General Assembly has perpetuated its interest and authority with respect to the future of Jerusalem.
It is evident that the chain of reasoning just referred to is a complicated one, certainly not free from serious doubts and difficulties. It is noteworthy, for example, that the Israeli Delegation at the Fourth Session of the General Assembly took the position that “Jewish Jerusalem” had become integrated with the State of Israel. In a memorandum submitted to the General Assembly on November 15, 1949 the Israeli Delegation stated: “The Mandate unmistakably came to an end in the absence of a ‘specific link of any kind between the United Nations and Jerusalem.’” The memorandum went on to assert that no events after May 14, 1948 operated to confer legal authority on the United Nations with respect to Jerusalem. The memorandum concluded:

“Moreover, it would be misleading to think of the present political relationship between Israel and Jerusalem as a provisional connection which could still be loosened. History knows no precedent of a population, having once achieved union with its own natural and kindred government, voluntarily turning back to mere semi-autonomy under outside control. The Charter provides for no contingency whereby an area of independence can become a non-self-governing territory.”§

The General Assembly resolution of December 9, 1949 concerning Jerusalem provides as follows:

[Here follows the text of the resolution; see Foreign Relations, 1949, volume VI, page 1530.]

This resolution assumes power in the General Assembly to make binding provision for the future government of Jerusalem. When the Assembly was discussing the Jerusalem question, it was of course open to Members of the United Nations to debate the issue of United Nations power in regard to Jerusalem. The view held concerning this issue by the Government of any Member would properly be a factor in determining that Member’s vote on a resolution such as the one finally adopted by the Assembly. Once, however, the General Assembly has made a recommendation, the recommendation is entitled to great weight and Members of the United Nations ought to respect it.

In regard to the Jerusalem problem, United Nations Members are not free to attack collaterally and undermine the adopted resolution of the Assembly, even though they may disagree with the resolution or think it based on an erroneous conception of the Assembly’s authority. Considerations such as these were properly before the General Assembly when it adopted the December 9 resolution on Jerusalem and may be before the Assembly at a future session if it again takes up the Jerusalem problem. In the interim, while the December 9 resolution remains operative, the United States, as a member of the United Nations, should respect the General Assembly’s recommendation and should refrain from inconsistent action.

Consistently with the General Assembly resolution, the United States and Israel or Jordan might agree that, pending final determination and actual establishment of a permanent Jerusalem régime, this Government should keep consular officials in Jerusalem who would exercise their functions in the absence of any exequaturs issued by Israel or Jordan. But the United States should not now accede to requests from any national state that this Government apply to it for consular exequaturs covering the Jerusalem area if such action were understood by the governments concerned to imply recognition of the national state’s sovereignty in Jerusalem. Nevertheless it would seem consistent with the position of the United States as a Member of the United Nations to apply for and receive exequaturs from the government of a national state if it were clearly understood that these steps did not involve recognition of the state’s sovereignty in Jerusalem.

The past practice of the United States in analogous situations has not been uniform. In 1911 the United States sought and secured recognition from Belgium of American consular officials in the Congo, at a time when the United States did not recognize Belgian annexation of the Congo. The Department of State instructed the Minister to Belgium that such consular recognition was by the de facto authorities, “it not being a question of de jure determination.” See IV Hackworth, Digest of International Law (1942) p. 684. In 1924 the Department authorized American consular officers in Chile to accept exequaturs from an unrecognized régime on condition that the issuing régime understood clearly that acceptance did not imply recognition. See ibid. at 688. But under similar circumstances in Mexico and the USSR the United States declined to apply to unrecognized régimes for any official recognition of American consuls. See ibid. at 686–87.

In the cases of Czechoslovakia and Danzig in 1939, the United States sought exequaturs from the German Government on condition that the position of the United States with respect to the status of these two territories should be considered preserved. Germany refused, and the American consulates were closed. See ibid. at 689–90. The United States for its part has declined to issue exequaturs in this country to the consuls of unrecognized foreign régimes. See ibid. at 694 (Ecuador).

Leonard C. Meeker

1 Copy not found in Department of State files.
2 John D. Jernegan, Director of the Office of Greek, Turkish, and Iranian Affairs.
* Such termination perhaps required the Council’s consent during the period of the League’s active existence. [Footnote in the source text.]
† The Trusteeship Council completed its work on the Statute on March 10, 1948, but deferred the question of formal approval until the Third Part of its Second Session, to be convened in April. When the Council met again, it referred the matter of the Statute to the General Assembly on April 21, for such further instructions as the Assembly might see fit to give. The Assembly, then meeting in special session, did not reply, other than to adopt on April 26 a resolution requesting the Trusteeship Council to study measures for the protection of Jerusalem and report to the General Assembly. It was on the basis of the Council’s report that the Assembly adopted on May 6 a resolution recommending the appointment of a Special Municipal Commissioner for Jerusalem.

A Commissioner was in consequence appointed (Mr. Harold Evans, of Philadelphia). Although he never reached Jerusalem, a Deputy Commissioner—Mr. Pablo Azcarate—has served in the post for over 18 months.

The General Assembly has never revoked its resolution of November 29, 1947. On May 14, 1948 the Assembly adopted a resolution which in its third part merely relieved the Palestine Commission (established by the November 29 resolution) “from the further exercise of responsibilities.” On July 29, 1948 the Trusteeship Council adjourned indefinitely any further consideration of the Statute for Jerusalem. [Footnote in the source text.]



Anonymous said...

From M:

Whether or not the State Department misled the Supreme Court is not the issue. According to the majority opinion, the sole issues before the court was whether the power to recognize a foreign state's sovereignty over a particular territory is exclusively within the domain of the President under the Constitution and whether the Congressional enactment exceeded the powers of Congress and infringed impermissibly upon the President's exclusive power. The majority answered both in the affirmative. Justice Thomas agreed that the power to regulate passports fell within the President's exclusive authority, but went to hold that Congress had the power to regulate certificates of overseas births. The dissent held that the the Presidential power to recognize foreign sovereigns was not relevant. That the power over passports was held concurrently between the two branches of government and that Congress had the power to regulate the issue under the Necessary and Proper clause. The dissent would have upheld the statute and struck down the State Department regulation.

The Zivotovsky case is not really about Jerusalem. Under the reasoning of the majority, the President and his State Department could "recognize" whatever they wanted to recognize regarding the status and geographical extent of Jerusalem. Thus, what the State Department does with US citizens born in Bethlehem is OK versus its treatment of US citizens born in municipal Jerusalem is not an issue that concerned the Court.

Looking ahead might one challenge the FAM on the grounds that it makes a distinction between Jerusalem and other parts of the former Corpus Separatum? Theoretically, one could mount an equal protection challenge to the regulatory practice, but my guess is that such an argument would never hold water. First, this would probably be treated by the courts as a political question and therefore immune from judicial intervention. Second, were the issue to be addressed on the merits, the court would hold that the discriminatory treatment while not logically consistent, would nevertheless be seen to have a rational basis on the grounds of evolving US foreign policy interests justify the administrative distinction between the two geographic areas.

Clearly, in light of the constitutional principles laid out in the historic Zivotovsky case, the issue of how U.S. citizens born in Jerusalem are listed in their US passports will be a political issue entrusted exclusively to the Executive Branch. This among many others is why we need to work hard to take the White House out of Democratic hands in 2016 and to install a Republican president who will not be afraid to retool the FAM and more importantly move the U.S. embassy to Jerusalem thereby recognizing Jerusalem (or at least part of it as the capital of the State of Israel).

Eliyahu m'Tsiyon said...

Bethlehem, Beyt Sahur and Beyt Jala are shown on the map on this post as parts of the corpus separatum, the zone recommended by the UN general assembly to be internationally governed.

By what right under international law does the State Dept distinguish between parts of the corpus separatum? The SD's position is arbitrary and clearly anti-Israel and anti-Jewish.

Anonymous said...


Ari Z. Zivotofsky
4:20 PM


Thor said...

The State Department is showing wisdom. It may be relaxing some arbitrary understanding of the laws but it is allowing for more people to live. Actually live their lives without stupid arguments of unpersonal non-human bodies created by law. I congratulate the State Department of Israel for being wise.