Jerusalem

United States Jerusalem Statement in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): The status of the city of Jerusalem is one of the most sensitive and longstanding disputes in the Arab-Israeli conflict. For the last 60 years, the United States' consistent policy has been to recognize no state as having sovereignty over Jerusalem, leaving that issue to be decided by negotiations between the relevant parties within the peace process. This policy is rooted in the Executive's assessment that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.” The Executive similarly does not recognize Palestinian claims to current sovereignty in Jerusalem, the West Bank, or the Gaza Strip, pending the outcome of these negotiations.

One of the ways the State Department has implemented the United States' policy concerning the status of Jerusalem is in its rules regarding place-of-birth designations in passports and consular reports of birth abroad issued to U.S. citizens born in Jerusalem. Because the United States does not currently recognize any country as having sovereignty over Jerusalem, only “Jerusalem” is recorded as the place of birth in the passports and reports of birth of U.S. citizens born in that city. Petitioner challenges this policy, seeking to have “Israel” designated as his place of birth. He relies on Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, which is entitled “United States Policy with Respect to Jerusalem as the Capital of Israel,” and which purports to require the State Department to make such a designation upon request. Pub. L. No. 107-228, 116 Stat. 1350, 1366.

Developments

The Constitution assigns a broad range of foreign-affairs powers … to the President alone. …[O]f particular relevance to this case, the Constitution assigns to the President alone the authority to “receive Ambassadors and other public Ministers.” Art. II, § 3. That power includes the authority to decide which ambassadors the President will receive and, hence, the power to decide with which governments to establish diplomatic relations. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964); United States v. Pink, 315 U.S. 203, 229 (1942) (same).

United States policy concerning the status of Jerusalem is reflected in the State Department's policies for preparing passports and reports of birth abroad of U.S. citizens born in Jerusalem. As a general rule in passport administration, the country that the United States recognizes as having sovereignty over the place of birth of a passport applicant is recorded in the passport. See 7 Foreign Affairs Manual (FAM) 1383.1 (1987). Because the United States does not currently recognize any country as having sovereignty over Jerusalem, only “Jerusalem” is recorded as the place of birth in the passports of United States citizens born in that city. 7 FAM 1383.5-6, exh. 1383.1. Similarly, because the United States recognizes no state as having sovereignty over the territories of the West Bank and Gaza Strip, State Department rules mandate recording “West Bank” and “Gaza Strip” in the passports of United States citizens born in those locations. 7 FAM 1383.5-5.

Details

Congress has occasionally attempted to constrain the Executive Branch's ability to implement its recognition policy with respect to Jerusalem.…

In 1995, Congress passed the Jerusalem Embassy Act of 1995, which states that the “[p]olicy of the United States” is that “Jerusalem should be recognized as the capital of Israel,” and which purports to condition a portion of State Department funding on moving the U.S. Embassy to Jerusalem. Pub. L. No. 104-45, § 3(a) and (b), 109 Stat. 399 (enacted into law without President's signature). While Congress was considering the bill, the Office of Legal Counsel (OLC) advised the President that the bill would unconstitutionally infringe the President's recognition power. See Bill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. Off. Legal Counsel 123 (1995). As enacted, the statute contains a waiver provision that permits the President to suspend the funding restriction for six months at a time to “protect the national security interests of the United States.” § 7, 109 Stat. 400. Since the provision's enactment, Presidents Clinton, Bush, and Obama have repeatedly made the necessary finding to invoke the waiver provision and maintain the U.S. Embassy in Tel Aviv. See, e.g., 76 Fed. Reg. 35,713 (2011).

More about the Issue

In 2002, Congress passed and the President signed the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350. Section 214 of that Act, entitled “United States Policy with Respect to Jerusalem as the Capital of Israel,” contains various provisions relating to Jerusalem. Subsection (a) “urges the President * * * to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem.” § 214(a), 116 Stat. 1365. Subsection (b) states that none of the funds authorized to be appropriated by the Act may be used to operate the United States consulate in Jerusalem unless that consulate “is under the supervision of the United States Ambassador to Israel.” § 214(b), 116 Stat. 1366. Subsection (c) states that none of the funds authorized to be appropriated may be used for publication of any “official government document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel.” § 214(c), 116 Stat. 1366. And Subsection (d), on which petitioner relies, states that, “[f]or 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 [of State] shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel.” § 214(d), 116 Stat. 1366.

Resources

See Also

• Diplomatic Relations
• Succession
• Continuity Of States
• Statehood Issues
• Executive Branch
• State Recognition
• Statement