The Status of Jerusalem in America’s Foreign Policy,
Legislation and Jurisprudence

, October 28, 2015

US Passports

(Tim Sackton / CC BY-SA 2.0)

  • The United States, the first state to recognize the State of Israel when established on May 14, 1948, has never recognized west Jerusalem as part of Israel. Since 1967, when Israel attained control over all of Jerusalem, the issue of its status became more acute and the U.S. policy has not been constant.
  • The differing views concerning the status of Jerusalem characterized not only different American Presidents, but also existed between the White House and the State Department, and the same person did not always speak in “one voice,” dependent upon whether the statement on Jerusalem was made before or after entering the White House.
  • In a recent ruling by the U.S. Supreme Court in the case of Zivotofsky v. Kerry, Secretary of State, while declining to acknowledge the unbounded powers of the President of the U.S. over foreign relations, the Court held that the President has exclusive recognition power.
  • Although considered to be an unprecedented holding on the question of separation of powers, some of the Court’s reasoning is tenuous.
  • A statutory provision requiring the listing of “Israel” as a place of birth in passports of Jerusalem-born U.S. citizens, if so requested, is clearly not an issue of recognition, and thus should not concern recognition.
  • The U.S. Supreme Court’s ruling does not affect the status of Jerusalem nor does it determine sovereignty.
  • Some of the Court’s holdings regarding the U.S. Administration’s position on sovereignty over Jerusalem are flawed historically and legally.
U.S. Ambassador to the United Nations Arthur Goldberg addresses the emergency session of the UN General Assembly in New York on June 19, 1967. (AP Photo)

U.S. Ambassador to the United Nations Arthur Goldberg addresses the emergency session of the UN General Assembly in New York on June 19, 1967. (AP Photo)

The issue of the status of Jerusalem in U.S. foreign policy has recently figured in an important ruling rendered by the United States Supreme Court (“Court”). On June 8, 2015 the Court in the case of Zivotofsky v. Kerry, Secretary of State (“Judgment”)1 declared unconstitutional Section 214(d)2 of the Foreign Relations Authorization Act, 2003,3 a statutory provision requiring to list “Israel” as a place of birth in passports of Jerusalem-born U.S. citizens, if so requested.

The Court based on its conclusions on two basic reasons. First, that the President had the exclusive power to grant formal recognition to a foreign sovereign4 and second, because of that, §214 (d) infringed on the Executive’s consistent policy to withhold recognition with respect to Jerusalem. Neither Israel nor any other State is acknowledged as having sovereignty over Jerusalem.5

Prior to analyzing the Judgement itself, this survey will examines the recent historical background of Jerusalem, the issue of its sovereignty and the fluctuations in American foreign policy in relation to its status over the years.

The Judgement will be reviewed in relation to three aspects:

  1. Although considered to be an unprecedented holding on the question of separation of powers, some of the Court’s reasoning is tenuous.
  2. The subsection that lies at the heart of this case, §214(d), and the challenged action – a mere notation of Israel6 as a place of birth in passports7 of Jerusalem-born U.S. citizens, if so requested – does not concern recognition.
  3. The U.S. Supreme Court’s ruling does not affect the status of Jerusalem nor does it determine sovereignty.

The Status of Jerusalem – Historical Background, Sovereignty and U.S. Foreign Policy

From 1517 onwards for almost 400 years, together with the whole of Palestine, Jerusalem was under Ottoman rule. Jerusalem was never the capital of any Arab state. It has had a Jewish majority since 1830.8 During the time of the British Mandate over Palestine (“Eretz Israel” as referred to under Israel law), Jerusalem was the seat of the Supreme Court and the Jewish Agency, the body recognized by the U.N. as representative of the Jewish population in Palestine. With the exception of the Jews, no other national group seated in Palestine declared Jerusalem as its capital.9

In 1947, Great Britain asked the U.N. General Assembly to consider the Palestinian question. To investigate the issue the General Assembly appointed a special committee, UNSCOP – United Nations Special Committee on Palestine.10 Following the recommendation of the majority of the Committee, the General Assembly adopted on November 29, 1947 its resolution, Resolution 181 (II), which is entitled: “[f]uture government of Palestine,”11 known as the Partition Plan.  Part I of the resolution stipulates:

[i]ndependent Arab and Jewish States and the Special International Regime for the City of Jerusalem, set forth in Part III of this Plan, shall come into existence in Palestine two months after the evacuation of the armed forces of the mandatory Power has been completed…12

According to Part III of the Resolution, which established the Special Regime of Jerusalem

[t]he City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations…13

As for the duration of the Special Regime, Part III of the Resolution provided that it remain in effect for the first stage for a period of ten years, after which it was to be reexamined by the Trusteeship Council of the U.N. in view of the experience acquired. No less importantly, “[t]he residents of the City shall be then free to express by means of a referendum their wishes as to possible modifications of the regime of the City.”14

The Jewish leadership accepted the plan notwithstanding the limited boundaries for the Jewish state and the exclusion of Jerusalem and despite its centrality and significance in Jewish religion and history.15  They interpreted the envisioned international regime for Jerusalem as an interim arrangement that could be replaced; and hoped that the referendum would eventually lead to the incorporation of the corpus separatum within their future state.16

The plan was rejected categorically by the Arabs of Palestine who immediately started to attack the Jewish villages and towns, including the Jewish area of Jerusalem.17

By 1947 the United States endorsed the internationalization of Jerusalem as an integral feature of the Partition Plan. The Truman administration supported the majority position in the General Assembly, which claimed that an international city under the auspices of the U.N. was a condition precedent for adoption of the Partition Plan.18

Ultimately, the idea of corpus separatum never came into being.19  On May 14, 1948 when the British mandate over Palestine drew to its end, representatives of the Jewish community proclaimed the establishment of the State of Israel. The Declaration of the Establishment of the State of Israel does not mention Jerusalem.

On the very same day, May 14, the United States recognized State of Israel.  In fact, it was the first state to do so.20

Upon its establishment, armies of five Arab states invaded Israel. Israel repelled the attack in what is known by the Israelis as the “War of Independence.”  The war, that lasted until July 20, 1949, with the signing of Armistice Agreements between Israel and Egypt (February 1949), Lebanon (March 1949), Jordan (April 1949) and Syria (July 1949), respectively, resulted, among other outcomes, in Israel’s control of western Jerusalem.

At the end of 1949, Israel’s Prime Minister David Ben-Gurion announced that Jerusalem was an inseparable part of the State of Israel and stated, inter alia: “[f]or the State of Israel, however, there has always been and will always be one capital, the Eternal Jerusalem.”21 The Knesset approved that position. Israel’s right to choose Jerusalem as its capital is a prerogative shared by independent states.22

Against this background, the opinions of Prof. Elihu Lauterpacht and other prominent experts of international law23  aptly describe the situation. According to Prof. Lauterpacht, with the failure of the idea to create a corpus separatum, and British withdrawal from Mandatory Palestine, the Partition Plan had been overtaken by events, leaving in Jerusalem “a vacuum of sovereignty.” Israel filled that vacancy by virtue of its lawful act of self-defense.24 Moreover, Jordan’s invasion of the West Bank and Jerusalem is regarded as a violation of international law and the use of force in accordance with Article 2(4) of the U.N. Charter.25 Jordan cannot claim any legal title in accordance with the enshrined principle that no right can be born of an unlawful act (ex injuria jus non oritur).26

The same principles applied in the 1967 Six Day War, when Jordanian forces opened fire, inter alia, on west Jerusalem. As a result thereof, Israel captured east Jerusalem in the lawful exercise of its right of self-defense under Article 51 of the U.N. Charter.27  West Jerusalem and east Jerusalem were united under Israeli control and jurisdiction.28

The attainment of Israeli control over all of Jerusalem in 1967 had an impact on American foreign policy, as explained by Prof. Shlomo Slonim:

[t]he United States had never acknowledged that west Jerusalem was part of Israel or that east Jerusalem was part of Jordan; and now, with one state controlling both parts of the City, the question of status arose in a more acute form.29

Shortly after the war, on July 14, 1967, during an emergency special session of the General Assembly, the American representative to the U.N., Ambassador Arthur Goldberg stated the following:

[w]ith regard to the specific measures taken by the Government of Israel on 28 June [“administrative action”, i.e. annexation of east Jerusalem – M.N.], I wish to make it clear that the United States does not accept or recognize these measures as altering the status  of Jerusalem…We insist that the measures taken cannot be considered as other than interim and provisional and not as prejudging the final and the permanent  status of Jerusalem.

We believe that the most fruitful approach to a discussion on the future of Jerusalem lies in dealing with the entire problem as one aspect of the broader arrangements that must be made to restore a just and durable peace in the area.30

Ambassador Goldberg also participated in the drafting of U.N. Security Council Resolution 242 adopted on November 22, 1967.31 That resolution, which has been regarded ever since as the main basis for peace negotiations in the Middle East between Israel and her neighbors, contains no reference to Jerusalem. Goldberg claimed later “…this omission was deliberate.”32

UN Security Council voting in 1967.

UN Security Council voting in 1967. (UN Photo)

Nor is Jerusalem mentioned in the Camp David Accords of September 1978 (“The Framework for Peace in the Middle East” and “Framework for the Conclusion of a Peace Treaty between Egypt and Israel”).33

In a series of answers to questions posed by Jordan’s King Hussein during the Camp David talks, President Carter is on record expressing his views concerning the status of Jerusalem:

We believe a distinction must be made between Jerusalem and the rest of the West Bank because of the city’s special status and circumstances. We would envisage, therefore, a negotiated solution for the final status of Jerusalem that could be different in character in some respects from that of the rest of the West Bank. Whatever solution is agreed upon should preserve Jerusalem as a physically undivided city.34

Whereas those expressed views of Carter are clear and undoubtedly advocate the distinction between the status of Jerusalem and the West Bank, Carter’s letter appended to the Agreements is utterly misleading, as far as the status of Jerusalem is concerned.

Three separate letters appended to the Agreements by President Sadat of Egypt, Prime Minister Begin of Israel, and President Carter of the United States refer to Jerusalem.35

The United States, in signing the Agreements as a witness only and not as a signatory party, defined its position on the subject of Jerusalem publicly. On no other issue did the American government feel compelled to express its view on a final document.36 In his letter to President Sadat,37 President Carter wrote:

[t]he position of the United States on Jerusalem remains as stated by Ambassador Goldberg in the United Nations General Assembly on July 14, 1967, and subsequently by Ambassador Yost in the United Nations Security Council on July 1, 1969.38

Yet, the two speeches differ from one another. While both ambassadors stressed that Israel action in Jerusalem were provisional and that Jerusalem’s future should be settled by negotiations, Ambassador Charles Yost also said that East Jerusalem was occupied territory to which the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War applied.39

Ambassador Goldberg best explained the gap between those two approaches in his letter addressed to the New York Times in March 1980:

[t]he facts are that I never described Jerusalem as occupied territory. Ambassador Yost did, in his speech of July 1, 1969, under instructions from President Nixon, and his statement represented a departure from the policy I, President Johnson and the Department of State pursued with respect to Jerusalem during the period of my tenure.40

Prof. Slonim further expounded the shift in the American policy of the two American Presidents.

[i]n fact, the Johnson administration seemed to endorse an  approach which accorded recognition to the actual administering state while granting the international community only those rights pertaining to religious interests. In 1969, with the entry into office of the Nixon administration, this hands-off policy was radically altered, and the United States, for the first time, pronounced east Jerusalem occupied Territory….41

The dichotomy concerning the status of Jerusalem characterized not only the viewpoints of different American presidents, but in the following years also existed between the White House and the State Department. Thus, for example, while President Reagan in his 1982 Reagan Plan spoke about an undivided Jerusalem and seemed to be a proponent of a policy of leaving the issue of the final status of the City for the parties to decide, Secretary of State George Shultz referred to East Jerusalem as “occupied territory.”42

In 1990, President George H. W. Bush expressed his opinion that the Jewish neighborhoods of east Jerusalem had the same status as the Jewish settlements in the West Bank. Bush’s position caused considerable anger in Israel and among American Jewry. In response, the U.S. Congress, determined to define U.S. policy in a categorical way, passed a resolution recognizing Jerusalem as the capital of Israel. However, this resolution was not binding on the President.43

Five more years lapsed when in a tribute to the celebration of 3,000th anniversary of Jerusalem’s founding, Senators Robert Dole and Jon Kyl introduced a bill (“Jerusalem Embassy Act of 1995”) to move the U.S. Embassy in Israel to Jerusalem. The Dole-Kyl Bill was adopted, with some amendments, on October 24, 1995, by overwhelming margins in both houses of Congress and became law on November 8, 1995.44 This time, in contrast with the resolution of 1990, the Act was mandatory.45 However, the President was authorized to exercise a waiver and suspend moving the embassy by six months, if he determined it essential for national security interests.46

When a foreign state fears that the establishment of its embassy in Jerusalem might be misconstrued as a recognition of Israeli sovereignty over the City, it can add a reservation to that effect.47 The United States did not do so. In fact, the quotations of the following Sections of the 1995 Act implies the opposite regarding the American policy:


(1) Each sovereign nation, under international law and custom, may designate its own capital.

(7) Since 1967, Jerusalem has been a united city administered by Israel, and persons of all religious faiths have been guaranteed full access to holy sites within the city


(1) Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected;

(2) Jerusalem should be recognized as the capital of the State of Israel; and

(3) The United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.48

Admittedly, 16 years have passed since the designated date and the American Embassy is still in Tel Aviv. The United States maintains its embassies in the functioning capitals of every country, except Israel, its “democratic friend and strategic ally.”49 However, the United States conducts official meetings and other business in Jerusalem in de facto acknowledgment of its status as the capital of Israel.50

At the end of 1992, on the eve of his inauguration, President-elect Bill Clinton was asked: “Under what circumstances, if any, would you consider moving the US Embassy from Tel Aviv to Jerusalem?” He responded: “I do recognize Jerusalem as Israel’s capital, and Jerusalem ought to remain an undivided city. But I think that timing is the real issue. Moving our embassy there while negotiations are in progress could disrupt the peace process….”51 When in office, Clinton’s team softened official U.S. language on Jerusalem substantially.52

The last example also illustrates the importance of timing, i.e., whether a commitment is made by a President-elect and President in office. This distinction holds good also for a similar situation pertaining to former Senator Barak Obama and President Barak Obama. In 2008, the section of the platform of the Democratic Party, dealing with the policy of its candidate for presidency, then-Senator Barak Obama, read as follows: “Jerusalem is and will remain the capital of Israel.”  However, in 2012, when already President of the United States and seeking reelection, this sentence was removed, but later reinstated at the beginning of September 2012 when President Obama directed the Democratic Party to amend its platform to restore language-declaring Jerusalem the Israeli capital.53

The newborn State of Israel announced Jerusalem as its eternal capital by the end of 1949. From the beginning of the fifties until 1967, the American policy on Jerusalem remained more or less constant. Since 1967, when Israel attained control over all of Jerusalem, the period is marked by shifts in the U.S. policy. According to Prof. Slonim, these fluctuations, sometimes drastic, are “depending essentially on the predilections of the White House occupant.”54 But more than that; there were cases when the White House differed from the State Department and even the “occupant” after entering the White House, altered his previous attitude.

The Judgment in the case of  Zivotofsky v. Kerry, Secretary of State55

On September 30, 2002, President George W. Bush signed into law the Foreign Relations Authorization Act, Fiscal Year 2003 (“ACT”).56  Its §214 is entitled: “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” The first three of its four subsections relate to the location of the United States Embassy in Israel, pursuant to the 1995 Act.57  §214(d), the subsection that addresses passports, is the provision at issue. It stipulates:

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. – For purposes of the registration of birth, certification of nationality, 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.58

An American citizen, Menachem Binyamin Zivotofsky, was born in the Shaare Zedek hospital in western Jerusalem in October 2002, just a few weeks after the Act was enacted. His parents, Americans citizens, invoked the new Act. His mother applied for a United States passport for Zivotofsky, inscribing his place of birth as “Jerusalem, Israel.”59  The State Department issued a passport in Zivotofsky’s name but listed his birthplace as merely “Jerusalem.” The Secretary of State did not enforce the provision, claiming that it impermissibly infringes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. On September 16, 2003, Zivotofsky, “by his parents and guardians, Ari Z. and Naomi Siegman Zivotofsky,” sued to compel the Secretary to comply with the Act.60  For almost a decade, the litigation has been “up and down the appellate ladder.”61

A unanimous three-judge panel of United States Court of Appeals for the District of Columbia Circuit ruled on July 23, 2013 in the case of Zivotofsky v. Secretary  of State62 that it agreed with the Secretary”…and therefore hold that section 214(d) is unconstitutional.”63

That judgment of the Court of Appeals was affirmed by the Supreme Court64 in its Judgement of June 8, 2015, holding §214(d) invalid.65

As mentioned above, the second part of this survey, will review the Judgement in relation to three aspects.

1. Although considered to be an unprecedented holding on the question of separation of powers, some of the Court’s reasoning is tenuous.

To decide whether the President possesses exclusive power of recognition, the Court examines the text of the Constitution and it structure, as well as precedents and history bearing on the question.

Given that the word “recognition” is not mentioned in the Constitution, the textual explanation, however loose, is in Art. II, §3 which stipulates that the President “shall receive Ambassadors and other public Ministers” (the Reception Clause).66 According to the Court:”…the Reception Clause provides support, although not the sole authority, for the President’s power to recognize other nations.”67

The Court continues the analysis of Article II:

The inference that the President exercises the recogni­tion power is further supported by his additional Article II powers. It is for the President, “by and with the Advice and Consent of the Senate,” to “make Treaties…”68

Not only does the above quotation not lend any support to the innovative conclusion of the Judgement that the President possesses exclusive power of recognition, but it specifically implies of his shared powers with the Congress.

The Court’s analysis indicates that its own observations regarding the constitutional separation of powers are dubious.69

Prior Supreme Court decisions lend no more weight to the Court’s position.  Its analysis of the precedents supports both conclusions, that recognition is an exclusive executive power and that recognition is not exclusive executive power.70

The majority held that:

No single precedent resolves the question whether the President has exclusive recognition authority and, if so, how far that power extends

It is true, of course, that Belmont and Pink are not direct holdings that the recognition power is exclusive…  And  the primary issue was whether the executive agreements could supersede state law. Still, the language in Pink and Belmont, which confirms the President’s competence to determine questions of recognition, is strong support for the conclusion that it is for the President alone to determine which foreign governments are legitimate.71

The Court rejected the Solicitor General, who urged the Court to define the executive power over foreign relations in even broader terms. In support of his submission that the President had undefined powers over foreign affairs, he relied upon a sweeping statement made in 1936 in United States v. Curtiss-Wright Export Corp., which, inter alia, repeated a description of the President as “the sole organ of the federal government in the field of international relations.”72   The Court declined “to acknowledge that unbounded power.”73

After noting that the description in Curtiss-Wright in support of the President’s exclusive powers in foreign affairs, was not necessary for the decision in that case,74  which “after all” dealt with  the constitutionality of congressionally authorized action to the President, and not a unilateral Presidential determination,75 the Court, on the basis of its precedents, expounded in length the role of Congress.76 The Court states:

it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue… It is not for the President alone to determine the whole content of the Nation’s foreign policy.77

Yet, the concluding remark of the majority in the above quotation is quite the opposite from what the Court said in the consecutive paragraph when referring specifically to the act of recognition in international relations:

[t]hat said, judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate…78

The Court proceeds to explain its ruling, that Congress may not interfere with the President’s conduct of foreign affairs, is restricted in legislating  that requires the President “to contradict his own statement regarding a determination of formal recognition”79 – the situation involved here.80

Having examined the Constitution’s text and the Court’s precedents, the Court refers to the historical practice. “Here, history is not all on one side, but on balance it provides strong support for the conclusion that the recognition power is the President’s alone.”81 The Court proceeded and further elaborated: “[f]or the most part, Congress has acquiesced in the Executive’s exercise of the recognition power. On occasion, the President has chosen, as may often be prudent, to consult and coordinate with Congress.”82 These circumstances, however, are different from the current case, where the Executive assert the power to disregard a statute.

The Court again restricts itself to a “narrow” subject:  “[t]he Executive’s exclusive power extends no further than his formal recognition determination. But, as to that determination, Congress may not enact a law that directly contradicts it. This is not to say Congress may not express its disagreement with the President in myriad ways.”83

To be sure, the ways enumerated are not marginal. For example, the Congress “…may enact an embargo  … or even declare war.”84 Given that such ways would cause more severe perceived contradictions with Presidential recognition determination than does §214(d), the concluding sentence of the Court that states:  “…none of these acts would alter the President’s recognition decision”85  is less convincing to say the least.

In a groundbreaking decision and especially one that involves a claim that the Executive could contravene a statute, the Court is expected to state its position in a categorical way and to be more conclusive. To quote Chief Justice Roberts: “[t]he majority cites dicta suggesting an exclusive executive recognition power, but acknowledges contrary dicta suggesting that the power is shared… When the best you can muster is conflicting dicta, precedent can hardly be said to support your side.

As for history, the majority admits that it too points in both directions.”86

Noteworthy is the fact that  Chief Justice Roberts, who joined in full Justice Scalia’s principal dissent, wrote separately “to underscore the stark nature of the Court’s error on a basic question of separation of powers.”87 This is all the more evident from his opening statement, which reads: “[t]oday’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”88

2. The statutory provision §214(d) does not concern recognition

Recognition is a formal legal act under international law. It can only be effective if accomplished in specific ways.89 Recording Israel as the place of birth on the passport of an American citizen born in Jerusalem, who so requests, is not one of the ways to extend recognition under international law.  It is simply an administrative option of designation “[f]or purposes of” passports and other documents.  This is even more clear in light of the caption that §214(d) bears: “Record of Place of Birth as Israel for Passport Purposes.” The principal reason that U.S. passports require to list place of birth is “identification” as the State Department itself has explained.90

Although the Court refers to “…the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition”91 the case of Taiwan is indicative of the converse. To quote Justice Scalia: “[t]he best indication that §214(d) does not concern recog­nition comes from the State Department’s policies concerning Taiwan.”92 Accordingly, the President “acknowledge[d] the Chi­nese position” that “Taiwan is part of China,” but he did not accept that claim.93 Even so, the State Department has insisted for a long time to record the birthplace of a citizen born in Taiwan as “China.” That practice continued until 1994, when Congress passed a law, on which §214(d) was modeled,94 called: Foreign Relations Authorization Act, Fiscal Years 1994 and 1995. Its §132 stipulates:

For purposes of the registration of birth or certification of nationality of a United States citizen born in Taiwan, the Secretary of State shall permit the place of birth to be recorded as Taiwan.95

In order for the State Department to comply with the law in the case of Taiwan, it states in its Foreign Affairs Manual:

NOTE: The United States does not officially recognize Taiwan as a ‘state’ or ‘country,’ although passport issuing officers may enter ‘Taiwan’ as a place of birth (See also 7 FAM 1340 Appendix D d(6) (f).)96

Nothing stopped the State Department from issuing such a disclaimer with reference to §214(d).97 A disclaimer could have answered a concern that recording of birth on passports could be misconstrued as recognition of Israeli sovereignty over Jerusalem. It is worth noting that twice during oral argument in this case, Justice Kennedy raised that possibility, yet he does not address it in his opinion.98

Eventually, the Court itself concedes: “[A]lthough the statement required by §214(d) would not itself constitute a formal act of recognition…”99

Agreeing that §214(d) does not implicate recognition, Chief Justice Roberts rightly acknowledged:

[i]t has not been necessary over the past 225 years to definitively resolve a dispute between Con­gress and the President over the recognition power. Per­haps we could have waited another 225 years”100

3. The U.S. Supreme Court’s ruling does not affect the status of Jerusalem nor does it determine sovereignty

The American Supreme Court did not issue any ruling about the status of Jerusalem.101 The Judgement is an unprecedented ruling as far as the issue of separation of powers is concerned.102

Considering the Court’s own concession that §214(d) does not extend recognition, as well as the Executive Branch’s position that does not consider it to be a recognition determination,103 then holding §214(d)  invalid, has no impact on the status of Jerusalem.  If the statute in question clearly does not deal with recognition determination, then how could it contradict such a determination?  More specifically, although the Court claims that §214(d) “directly contradicts” the “…longstanding Executive branch policy of neutrality toward Jerusalem,”104 that policy was not always so.

Moreover, some of the Court’s holdings regarding the American Executive’s position on sovereignty over Jerusalem are flawed historically and legally. Their analysis in this section will focus on the characteristics that have the real effects on the status of Jerusalem, regardless of any judgement, let alone a judgement claiming to the contrary.

The Court notes that in May 14, 1948 “President Tru­man formally recognized Israel in a signed statement of ‘recognition.’”105 Quite so. Yet, the Court’s following sentence “[t]hat statement did not recognize Israeli sovereignty over Jerusalem”106 needs to be further elaborated.

On May 14, 1948  Jerusalem was not referred to, not only by the statement of recognition issued by President Truman, but also by the Declaration of the Establishment of the State of Israel that preceded it in the very same day.107

According to the above explanation and sequence of events in 1948-1949, the fact that in May 14, 1948 President Truman’s statement announced the recognition of the State of Israel, but declined to acknowledge Israel’s sovereignty over Jerusalem, cannot change the reality that the United States has “afforded Israel the rights and duties attendant to its status as a sovereign State.”108 Moreover, as was pointed out by Justice Thomas, and rightly so: ” [l]isting a Jerusalem-born citizen’s place of birth as ‘Israel’  cannot amount to recognition because the United States already recognizes Israel as an international per­son.”109 The capital of a state has no special legal status,110 but its choice considered one of the prerogatives of a sovereign state.

Out of the four examples enumerated by the Court, only the first refers to 1948, while the other three refer to the situation post-1967. The Court, however, does not distinguish between western and eastern Jerusalem. It rejects the indication of “Israel” as a place of birth, upon the request of an American citizen, if he is born anywhere in Jerusalem (including western Jerusalem, as the case of Zivotofsky).

Thus, the Court proceeds that none of the American Presidents acknowledged any country’s sovereignty over Jerusalem. Instead the Executive branch has maintained “‘the status of Jerusalem  … should be decided not unilaterally but in consultation with all concerned’”111 The Court in this case quotes Ambassador Goldberg during United Nations proceedings in July 1967. However, part of the quotations is omitted.  This is all the more evident from the full text that reads:

98. During my own statement to the General Assembly on 3 July, I said that ‘the safeguarding of the Holy Places, and freedom of access to them for all, should be internationally guaranteed, and the status of Jerusalem in relation to them should be decided not unilaterally but in consultation with all concerned.’[1546th meeting, para. 3.]112

Prof. Slonim made an observation concerning Ambassador Goldberg’s statement in section 98 and also to a statement of the State Department quoted in the preceding section 97:113

[i]n each case, the term, “the status of Jerusalem” is qualified by the term “in relation to them,” i.e., the Holy Places. U.S. policy, apparently, did not perceive any international interest or concern in Jerusalem except in connection with the Holy Places.114

However, despite these qualifications and comment, there are other references in Ambassador Goldberg’s speech concerning the status of Jerusalem.  The second quoted paragraph of the State Department’s statement in section 97 reads: “[t]he United States has never recognized such unilateral action by any State in the area as governing the international status of Jerusalem.”115 Moreover, Goldberg himself clarified in section 100 that his Government did not recognize the Israeli administrative measures as “altering the status of Jerusalem.”116

The Court, in seeking to emphasize that the status of Jerusalem has to be determined “not unilaterally, but with all concerned,” should have chosen instead the other quotations from Ambassador Goldberg’s major policy address on the subject of Jerusalem.

UN Ambassador Arthur Goldberg consulting with President Lyndon B. Johnson (LBJ Library photo by Yoichi Okamoto)

UN Ambassador Arthur Goldberg consulting with President Lyndon B. Johnson
(LBJ Library photo by Yoichi Okamoto)

In this context, when referring to the holy places in Jerusalem and their future status, it should be mentioned that the issue of Muslim Holy shrines was incorporated into the Israel-Jordan Peace Treaty of 26 October 1994. Article 9 stipulates:

2 … Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines.117

The Court continues quoting  President Obama’s address to the United Nations General Assembly in 2011: “[u]ltimately, it is the Israelis and the Palestinians, not us, who must reach agreement on the issues that divide them,” including “Jerusalem.”118

The Court also cites a letter from then-Secretary of State Warren Christopher to the Congress, addressed to Majority’s leader, Robert Dole of June 20, 1995 stating that  “[t]here is no issue related to the Arab-Israeli negotiations that is more sensitive than Jerusalem.”…“any effort . . . to bring it to the forefront” could be “very damaging to the success of the peace process.”119

The Court gives the example of President Obama to predicate its claim regarding the behavior of the Executive, when none of the previous United States presidents has acknowledged any country’s sovereignty over Jerusalem. Yet, that claim is in sharp contrast to President Obama’s behavior in the presidential campaign of September 2012.120  It seems that the President’s recognition position is not an issue spoken with “one voice.”121

The quotations in the Court’s last two examples,122 however, are expressing nothing anew.  They refer to an existing reality, well known to the Israelis and the Palestinians as well as to the Americans, with no connection whatsoever to the prosaic function of birthplace designation at issue.

Jerusalem is one of the issues left for the later negotiations on the permanent status as specifically stipulated in the two agreements known as the Oslo Accords: Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993 (Declaration of Principles) and Israeli-Palestinian Interim Agreement of on the West Bank and the Gaza Strip of 28 September 1995 (“Interim Agreement”).123

The Government of Israel and the PLO124 signed both the Declaration of Principles and the Interim Agreement, and the United States signed as a witness.

That does not mean that then-Israeli Prime Minister Yitzhak Rabin planned to divide Jerusalem. On his speech to the Knesset on October 5, 1995, Rabin detailed his vision for a permanent status arrangement with the Palestinians, saying: “First and foremost, united Jerusalem….as a capital of Israel under Israeli sovereignty…”125

With reference to that address by Prime Minister Rabin, Amb. Alan Baker made an instructive observation:

But by formalizing past understandings with the Hashemite Kingdom of Jordan over its role in the administration of the Muslim holy sites, through instruments like the Washington Declaration, he [Rabin] appeared to be drawing a distinction between sovereignty over Jerusalem, which in his view had to be retained by Israel, and an international administrative role for the holy sites, which he was prepared to explore with Israel’s eastern neighbor. Thus, while insisting on Israeli sovereignty over a united Jerusalem, he did not view the issue of Jerusalem as a “zero sum game.”126


Although the Court decision concerning §214(d) is disappointing, it should be remembered that the Judgement does not affect the status of Jerusalem or reflect sovereignty determination.  In fact, section 214 in its entirety does not even mention the word “recognition.”

The ruling is precedential as far as the question of separation of powers is concerned. In that context, it is worth quoting Chief Justice Roberts in its dissenting opinion: “[b]ut even if the President does have exclusive recogni­tion power, he still cannot prevail in this case, because the statute at issue does not implicate recognition.”127

The issue of Jerusalem will presumably be revisited in the upcoming 2016 U.S. presidential campaign. The commitment to recognize Jerusalem as the capital of Israel has consistently been in the platforms of the two parties. One may presume that any newly elected President, whether Democrat or Republican, in order to earn the vote of Israel’s supporters in the U.S., will be asked by the latter to live up to his or her promise.

* * *


1  Zivotofsky v. Kerry, 576 U. S. ____ (2015)
2  Id. (majority opinion) (slip op., at 29).
3 Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350.
4 Supra note 1 (majority opinion) (slip op., at 1).
5 Id. (majority opinion) (slip op., at 3).
6 Infra note 59.
7 In the United States Court of Appeals for the District of Columbia Circuit as well as in the Court, Zivotofsky waived any argument that his consular report of birth abroad should be treated differently than his passport.  Consequently, the Court addresses Zivotofsky’s passport argu­ments and is not engaged in a separate analysis of the validity of §214(d) as applied to consular reports of birth abroad. See supra note 1 (majority opinion) (slip op., at 5).
8  Ruth Lapidoth, Jerusalem: The legal and Political Background, 3 justice 7 (1994).
9 Stephen Adler, The Jerusalem Law: Origin and Effects, in Jerusalem – legal aspects 42, 44(Ora Achimeir ed.,1984) (Hebrew).
10  Lapidoth, supra note 8, at 8.
11 A/Res 181(II) of 29 November 1947,
12 Id.
13 Id.
14 Id.
15  Alan Baker, Is Jerusalem Really Negotiable? An Analysis of Jerusalem’s Place in the Peace Process n. 13 and accompanying text ; See also Shlomo Avineri, Self Determination and Israel’s Declaration  of Independence in Israel’s rights as a nation- state in international diplomacy 35, 40 (Alan Baker ed., 2011).
16 Dore Gold, Defending Israel’s Legal Rights to Jerusalem, in Israel’s rights as a nation- state in international diplomacy 97, 101 (Alan Baker ed.,2011).
17 Lapidoth, supra note 8, at 9.
18 Shlomo Slonim, Jerusalem in America’s Foreign Policy, 1947-1997 at 360 (1998).
19 Thus, it is not surprising that later, in the beginning of December 1949, Israel’s Prime Minister David Ben-Gurion said that as far as he was concerned, the corpus separatum was “null and void. Baker, supra note 15, n 19  and accompanying text
20  Malvina Halberstam, The Jerusalem Embassy Act, 19 Fordham Int’l L.J. 1379, 1392 (1995).
21  Divrei HaKnesset (Knesset Reports) 3,281 (1949) Hebrew . See also Lapidoth, supra note 8, at 9; Adler, supra note 9, at 44.
22 Adler, supra note 9, at 44.
23 Ruth Lapidoth, The Basic Law: Jerusalem, Capital of Israel, in Commentary on the Basic Laws  40 n. 2 (Itzhak Zamir ed. 1999) (Hebrew). For other positions see id.
24 Gold, supra note16, at 100-101; Lapidoth, supra note 23, at 40.
26  Yehuda Zvi Blum, The Juridical Status of Jerusalem, in Jerusalem papers on peace problems  5, 12 (1974) (Hebrew). In that context it should also be noted, that Jordan’s proclamation of the annexation of the West Bank and Jerusalem in 1950  was recognized only by two states, Pakistan and Great Britain, while the latter added reservation that the recognition did not apply to Jerusalem. See Gold, supra note 16, at 99;  Lapidoth, supra note 8, at 9.
27 Supra note 25.
28 Gold, supra note 16, At 98-99 , When the  war was ended, the Knesset passed the Law and Administration Ordinance (Amendment no. 11) Law, 1967 authorizing the Government to apply the law, jurisdiction and administration of Israel to any area which was formally part of Mandatory  Palestine. See Lapidoth, supra note 8, at 10.
29 Slonim, supra note 18, at 363.
30 GAOR, 5th Emergency Special Sess., Plenary, 1554th Mtg., July 14, 1967, at 10.
32 Lapidoth, supra note 8, at 11; Slonim, supra note 18, at 197 n. 22. See also infra.
34 Baker, supra note 15, n. 30 and accompanying text.
35 For the text of the three letters see Slonim, supra note 18, at 201-202.
36 See 223.
37  For explanation why the letter was addressed to Sadat only, see id. at 234 n.25.
38  Supra note 35.
39  Lapidoth, supra note 8, at 11. It is noteworthy that according to Prof. Lapidoth despite that approach, United States has recognized Israel’s de facto control of East Jerusalem for the purposes of extradition (Attorney General v. Davis 1988). See id.
40 For quotation of the letter see Slonim, supra    note 18, at 201-202.
41 See id. 363. For a detailed analysis of the repeated changes in the American policy toward Jerusalem see id. 359-366.
42 Statement by President Reagan (The Reagan Plan), 1 September 1982 provides:
“… we remain convinced that Jerusalem must remain undivided, but its final status should be decided through negotiations.”
See also Slonim, supra note  18, at 249-50; Moshe Hirsch, Debra Housen-Couriel Supervised by Ruth Lapidoth, The Jerusalem Question – Proposals for its Resolution 124-25 (1994) (Hebrew).
43    Lapidoth, supra note 8, at 12; Slonim, supra note 18, at 276-80. For President’s George Bush declaration in the President’s News Conference of March 3, 1990  when he said, inter alia: “M y position is that the foreign policy of the United States says we do not believe there should be new settlements in the West Bank or in East Jerusalem.” see For the summary of S.Con.Res.106 – A concurrent resolution expressing the sense of the Congress concerning Jerusalem and the peace process.101st Congress (1989-1990) See
See also American foreign policy: current documents: 1990, 586 1991 cited by Lapidoth, supra note 23, at 30 n. 50.
44 Jerusalem Embassy Act of 1995, 104 Pub. L. No. 45, 109 Stat. 398 (1995).; see also Slonim, supra note 18, at 329; Halberstam, supra note 20 at 1379-80. President Clinton neither signed nor vetoed the bill, and since Congress was still in session at the time, it automatically became law on November 8, 1995, in accordance with Art. 1 sec. 7 of the U.S. Constitution. See Slonim, supra note 18, at 329 n.77; Halberstam, supra note 20, at 1379-80 n. 6
45 Lapidoth, supra note 23, at 45.
46  Slonim, supra note 18, at 329.
47 Lapidoth, supra note 23, at 73.
48 1995 Act, supra note 44.
49  Id. § 2(15).
50 Id. § 2(16).
51 See Slonim, supra note 18, at Ch. 14, n. 2.
52 Jerusalem in International Diplomacy.
53 Mark Land­ler, Pushed by Obama, Democrats Alter Platform Over Jerusalem, N. Y. Times, Sept. 6, 2012, at A14
54 Slonim, supra note 18, at 329.
55  Supra note 1.
56 Supra note  3.
57 Supra note 3, § 214(d), 116 Stat. at 1365-66. For 1995 Act see supra note  44.
58  Supra note 3, § 214(d), 116 Stat. at 1366. However, when the President signed the Act, referring to section 214 in its entirety (without distinguishing between subsection (d) and the three preceding subsections), he also issued a signing statement, noting, inter alia “…the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to …determine the terms on which recognition is given to foreign states.” See Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003.
See also Brief for the Petitioner,6, 34
59  Originally Zivotofsky had asked that ‘Jerusalem, Israel’ be recorded on his passport, For further modification that led the parties to agree to have just “Israel” listed as a place of birth, see infra note 61.
60  See infra note 62 at 2, 8-9. For passport administration rules set forth in The State Department’s Foreign Affairs Manual (FAM) see id. at 4-5.
61 In 2012 the United States Supreme Court remanded holding “that this case does not present a political question” See Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (Justice Sonia Sotomayor concurring in part and concurring in the judgment) (slip op., at 15). The Supreme Court also reiterated the observation of another lower instance: “…while Zivotofsky had originally asked that ‘Jerusalem, Israel’ be recorded on his passport, ‘b oth sides agree that the question now is whether §214(d) entitles him to have just ‘Israel’ listed as his place of birth.’” (majority opinion) (slip op., at 4) See
Thus, the Supreme Court in 2015 said: “Pursuant to §214(d), Zivotofsky claims the right to have ‘Israel’ recorded as his place of birth in his passport.”  See supra note 1 (majority opinion) (slip op., at 5)
62 Zivotofsky v. Sec’y of State, 07-5347 (D.C. Cir. July 23, 2013).
63 Id. at 2-3, 42. For an analysis of that judgment of  2013 see Michal Navoth, Passport Control: An Examination of U.S. Policy on Jerusalem, jerusalem center for public affairs, November 7, 2013,
64 It should be noted, that the Supreme Court again had granted certiorari. 572 U. S. ___ (2014). See supra note 1 (majority opinion) (slip op., at 6).
65 supra note 1 (majority opinion) (slip op., at 29-30). Justice Anthony Kennedy delivered the opinion of the Court, in which Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined. Justice Breyer filed a concur­ring opinion. Justice Clarence Thomas filed an opinion concurring in the judgment in part and dissenting in part. Chief Justice John Roberts filed a dissenting opinion that was joined by Justice Samuel Alito, and they both joined a longer dissenting opinion by Justice Antonin Scalia, Id.(syllabus) (slip op., at 4).
66  Id. (majority opinion) (slip op., at 8).
67 Id. (majority opinion) (slip op., at 9, 8).
68 Id. (majority opinion) (slip op., at 9-10).
69  Avi Bell, Flaw In U.S. Policy Even the PLO recognizes Israel’s right to West Jerusalem, The Jewish Week, June 17, 2015
70 Guest Blog: Malvina Halberstam on Zivotofsky v. Kerry; See also Supra note 1 (majority opinion) (slip op., at 14).
71 Id. (majority opinion) (slip op., at 14, 15-16). During the 1930s’ and 1940s’ the American Supreme Court addressed issues surrounding President Roosevelt’s decision to recognize the Soviet Government of Russia. In United States v. Belmont, 301 U. S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942), New York state courts declined to give full effect to the terms of executive agreements the President had concluded in negotiations over recognition of the Soviet regime.
72  United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319  (1936).  In  Curtiss-Wright Export Corp. the Supreme Court  referred to a situation where Congress had passed a joint resolution giving the President the discretion to prohibit arms sales to certain militant powers in South America, and considered whether such delegation of power to the President was constitutional. See supra note 1 (majority opinion) (slip op., at 16-17).
73 Supra note 1 (majority opinion) (slip op., at 17).
74 It is interesting to note that “the Solicitor General invokes the case no fewer than ten times in his brief.”  Id. (Roberts, C.J., dissenting) (slip op., at 6).
75 Id. (majority opinion) (slip op., at 17-18).
76 Id. (majority opinion) (slip op., at 18)..
77 See id. emphasis added –M.N.
78 See id. emphasis added –M.N.
79 Id. (majority opinion) (slip op., at 29).
80 Halberstam, supra note 70. Thus, in in the case of  Zivotofsky v. Kerry,”… the President won the battle over the extent of his powers despite Curtiss-Wright, not because of it.” See Allan Morison, Symposium: President wins in Zivotofsky: Will there be another battle? June 9, 2015
81 Supra note 1 (majority opinion) (slip op., at 20).
82 Id. (majority opinion) (slip op., at 21).
83 Id. (majority opinion) (slip op., at 27).
84 Id.
85 Id. See also id.(Roberts, C.J., dissenting) (slip op., at 5).
86 Id. (Roberts, C.J., dissenting) (slip op., at 3).
87 Id. (Roberts, C.J., dissenting) (slip op., at 1).
88 Id. While adding that “the Court takes the peri­lous step”, Roberts reiterates this idea at the final paragraph of his dissent. Id.) Roberts, C.J., dissenting) (slip op., at 7).
89 Id.) (majority opinion)) slip op., at 7), (Scalia J., dissenting) (slip op., at 5), Halberstam, supra note 70.
90 Supra note 1 (Roberts, C.J., dissenting) (slip op., at 4).  For a detailed explanation how the “place of birth” specification assists in identification see G overnment’s response to petitioner’s Interrogatories, in Brief for the Petitioner, supra note 58, n.3.
91 Supra note 1 (majority opinion) (slip op., at 28).
92 Id. (Scalia J., dissenting) (slip op., at 7).
93 Id. (majority opinion) (slip op., at 24-25).
94 Id. (Scalia J., dissenting) (slip op., at 7).
95 Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, §132, 108 Stat. 395
96  7 FAM §1300, App. D, §1340(d)(6)
For 7 FAM 1340 App D d(6)(f) see id.
97 Supra note 1 (Scalia J., dissenting) (slip op., at 12)
98 Halberstam, supra note 70.
99 Supra note 1 (majority opinion) (slip op., at 27).
100 Id. (Roberts, C.J., dissenting) (slip op., at 6).
101  Bell, supra note 69.
102  See also a clarification made by U.S. ambassador to Israel, Ambassador Dan Shapiro quoted in Israel Hayom, June 9,2015 (Hebrew).
103 Supra note 1 (Roberts, C.J., dissenting) (slip op., at 4); see also supra note 90.
104 Supra note 1 (majority opinion) (slip op., at 26).
105 Id.) majority opinion)) slip op., at 2).
106 Id.
107 See supra .
108 Supra note 1 (Thomas, J., concurring in part and dissenting in part) (slip op., at 30).
109 Id. at 31.
110 Lapidoth, supra note 23, at 72.
111 Supra note 1 )majority opinion)) slip op., at 2).
112 GAOR, 5th Emergency Special Sess., Plenary, 1554th Mtg., July 14, 1967, at 10 (emphasis added –M.N.).
113 The statement of the State Department of June 28, 1967 refers to Israeli undertakings to unify Jerusalem administratively. It provides in its first quoted paragraph in section 97, that such an action “… can not be regarded as determining the future of the holy Places or the status of Jerusalem in relation to them.” See id. See also infra note 115 and accompanying text.
114 Slonim, supra note 18, at 196.
115 GAOR, 5th Emergency Special Sess., Plenary, 1554th Mtg., July 14, 1967, at 10
116 Id. See also supra note 30 and accompanying text.
117 Israel-Jordan Peace Treaty of  26 October 1994
118   Supra note 1 )majority opinion)) slip op., at 2).
119 Id. at 2-3.
120  See supra note 53  and accompanying text.
121 According to Justice Scalia, the Court’s decision rests on “’functional considerations’—principally the Court’s perception that the Nation ‘must speak with one voice’ about the status of Jerusalem. Ante, at 11″ Supra note 1 (Scalia J., dissenting) (slip op., at 14) Yet, Justice Scalia is warning against the effect that functionalism will have on the separation of powers. He states: “f unc­tionalism of the sort the Court practices today will system­atically favor the unitary President over the plural Con­gress in disputes involving foreign affairs…It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty. Id.14-15 {emphasis in the original – M.N). See also Halberstam, supra note 70.
122 Supra notes118-119..
123 See Art. V(3) of the Declaration of Principles on Interim Self-Government Arrangements, September 13, 1993,;
See also Art. XVII 1(a) and Art. XXXI 5 of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,  September 28, 1995,
124 PLO – Palestinian Liberation Organization is the Palestinian umbrella organization officially recognized by Israel as the representative of the Palestinian people.
125  Gold, supra note 16, at 103.
126  Baker, supra note15. For the Washington Declaration of 25  July, 1994 see The Washington Declaration was followed three months later by Israel-Jordan Peace Treaty of  26 October 1994. See supra note 117 and accompanying text.
127 Supra note 1 (Roberts, C.J., dissenting) (slip op., at 4) (emphasis in the original-M.N.).


About Michal Navoth

Michal Navoth is an Israeli attorney. Among her fields of expertise is public international law. In this capacity she publishes in English and lectures in various local and international forums on subjects relating to legal aspects of the Arab Israeli Conflict, human rights and anti-Semitism and is a frequent commentator on events in Greece.