More International Law at the U.S. Supreme Court: Where is Jerusalem?

by Julian Ku

I don’t mean to interrupt this great discussion of the “International Law in the Supreme Court” Book Discussion (to which I also made a very small contribution).  But I can’t resist a brief note on a case this term that promises to bring international law back to the Supreme Court, if only indirectly.  Here is the NYT write-up:

Menachem Zivotofsky was born in Jerusalem. But was he born in Israel?

Congress says yes. In 2002, it directed the State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask.

President George W. Bush signed that bill about three weeks before Menachem was born. But Mr. Bush also said he would not obey it.

(Remember the controversy over Mr. Bush’s flurry of signing statements, in which he expressed reservations and disagreements with acts of Congress even as he signed them into law? This was an example of one.)

The 2002 law, Mr. Bush said, “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

This case nicely brings into focus the idea of an “exclusive presidential power” under the Constitution (which I’ve argued for here) and the power of Congress.  If there is any presidential power that has received broad support from across the political spectrum (and Supreme Court precedent), it has got to be the president’s power to recognize foreign governments.  But is it enough to override an explicit congressional directive? The administration is arguing for an exclusive presidential power,  essentially endorsing President Bush’s then-controversial signing statement announcing his refusal to follow this part of the statute.  This case could go in many different directions, so it will be worth following.

One Response

  1. In Kletter v Dulles the United States District Court, District of Colombia ruled that Palestine was a foreign state and that naturalization under Palestinian law constituted an act of expatriation under United States law: “The contention of the plaintiff that Palestine, while under the League of Nations Mandate, was not a foreign state within the meaning of the statute is wholly without merit.” and “Furthermore, it is not for the judiciary, but for the political branches of the Government to determine that Palestine was a foreign state. This the Executive branch of the Government did in 1932 with respect to the operation of the most favored nation provision in treaties of commerce.” See Elihu Lauterpacht, International Law Reports, Volume 20, Editors Elihu Lauterpacht, Hersch Lauterpacht, Cambridge UP, 1957, ISBN 0521463653, page 254

    The UN Security Council cited articles 39 and 40 (Chapter VII) in its resolutions 62 and 73 which established the permanent armistice demarcation lines and directed the parties to observe and execute the armistice agreements pending a final negotiated settlement. The ICJ cited resolution 62 and the armistice agreement in its brief analysis of the status of the territory in the 2004 advisory opinion on the Legal Consequences of the Construction of the Wall.

    The Declaration On Principles Of International Law Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations stipulates that “Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.”

    In 1995 the State Department published a Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963) regarding Jerusalem. Bar-Haim said “The use of the term “Palestine” is historical fiction; it encourages the Palestine entity concept; its “revived usage enrages” individual Israelis”. Crawford said “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty. See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, ISBN 0160451590, page 341.

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