On the definition of Jerusalem in US Policy, in the light of the recent Supreme Court Ruling

A colleague wrote a professional group I am in, asking about the definition of Jerusalem used by the US, in the light of the recent US Supreme Court ruling in the Zivitovsky case. This is a case in which a person born in Jerusalem sued to have his place of birth listed as Jerusalem, Israel in his passport, not just Jerusalem.

As far as I can tell, Jerusalem is defined by the US for municipal purposes by the current Israeli municipal boundaries, but the Jerusalem Consulate General is an independent mission, representing the United States in its district and providing services to American citizens. In this case, the Jerusalem Consulate General district is defined as including Jerusalem, the West Bank and Gaza.

As for the Supreme Court ruling, I have to read the Decision more closely and in full to comment at greater length. Nevertheless, the quotes in the news, and a brief reading of the text itself, indicate to me that the ruling supports the President of the United States’ position that Congress should not interfere in foreign policy, and is based on the following language—which I have copied form the summary section of the ruling:

“…as a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem.”

This is reported as having been US policy since the time of Harry Truman’s recognition of Israel. However, this is specifically related to consular documents such as recognition of a birth of a US citizen abroad, recognition of nationality, and passports, and is based on the understanding that passports “will be construed as reflections of American policy,” and appears to be part of a broader political policy described as allowing the listing only of the city of birth, without recording the country in certain cases. Presumably, in other aspects of US activity that are not “construed as reflections of American policy” the definitions might be different.

In reviewing some of the literature about the ruling, I saw some references to other consular documents, such as certification of the death of a US citizen, in which this issue might also arise.

Some time ago, I attempted to read as much as I could on official State Department websites and to ask some questions via phone and internet queries. I got a muddled reaction. I would not characterize my research as comprehensive. One part of this research was to answer theoretical questions, but another was practical, and had nothing to do with passports and similar documents. Rather it related to groups of students I bring to Israel. I had to determine what rate to use for per-diem reimbursement of meals and incidentals; my university uses the Dept. of State (DOS) rates, which differ by country and city within a country. Moreover, I used DOS country reports for preparing certain materials for risk management purposes. At least technically, it was also appropriate to know about US consular offices to prepare for the possibility that consular issues might need to be handled in Jerusalem or Tel Aviv.

It’s not clear that US policy has to agree across all lines. In particular, I was told by several respondents that the US recognizes the green line (1949 Armistice lines) as it was on June 5 1967, and that for municipal purposes, the US accepts municipal boundaries as they are in place in practice, including in Jerusalem. Of course this might imply to some that it recognizes the annexation of areas over the Green Line that are within the municipal boundary. But conversely we should consider that, for example, the same approach means that areas that were annexed, that are inside the Green Line, were previously considered as unambiguously part of Israel, but are now considered as not having recognized sovereignty.

The new Jerusalem consular section which provides American citizen and visa services is on David Flusser Street, on the Green Line.

Jerusalem is its own independent mission, representing Jerusalem, the West Bank and Gaza. Thus Jerusalem is a separate district in the list of countries for DOS purposes. There are not many such “countries”– Hong Kong is another example.

Apparently consular issues relevant to Jerusalem should be handled by the US Consulate in Jerusalem, but I noted that the Zivitovsky passport was issued in Tel Aviv, not in Jerusalem.

In country reports, the country heading used by DOS for its report is “Israel, The West Bank and Gaza” and includes references to Jerusalem.

Regarding the per diem, I do not know the relevant US policy, but my reading of the Independent Mission suggests that those using DOS per diem rates should use the Jerusalem rates for all places in the scope of the Jerusalem Independent Mission (including such places as Bethlehem and Efrat). The DOS website does not distinguish between Jerusalem the city and any other location in the Mission district, as it does for most countries.

I welcome any comments by those better able to advise about the diplomatic and legal issues.

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