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On Monday, the U.S. Supreme Court heard arguments in a case that tests whether a 12 year old boy can list “Israel” as his birthplace on his American passport. The case was brought on by the parents of Menachem Zivotofsky, who was born in Jerusalem in 2002. In 2002 , A law that grants Jerusalem-born Americans the right to list “Israel” on their US passports, was passed by Congress . This regulation was passed as part of the  Foreign Relations Authorization Act. The State Department, however, has long refused to implement it. This is the second time that the Zivotofsky family is seeing the Supreme Court; the first was in 2012.

 Ari and Nomi Zivotofsky—Menachem’s parents—applied for a US passport for their two-month old son in 2002. Their request to put “Jerusalem, Israel” as the birthplace was firmly denied. Next, they tried “Israel”, which was dismissed just as easily. Since then, the Zivotofskys have been on a highly contested 11-year campaign to get their son’s passport birthplace record to say “Israel”. They’ve had a tough time.

 

At first glance, this case seems to be about upholding the academic technicalities of the law. But at the very center of the case is the delicate and deep-seated Arab-Israel conflict. Both the Bush and Obama administrations have declined to uphold the law because of the difficult and tricky geopolitical repercussions. The law, as both administrations believed, would directly contradict the US policy that basically states that no country has sovereignty over Jerusalem until Israelis and Palestinians negotiate a resolution in the Middle East Peace Deal. The problem, however, is that the conflict doesn’t look like it will find a resolution anytime soon.

 

The Israeli-Palestinian conflict, it could be argued, is as tense as ever. East Jerusalem, which was captured by Israel in the 1967 Six-Day War, is in a state of political and civil turmoil that is characterized with violent and unstable protests. These political demonstrations have sparked conflicts between Palestinian youths and the Israeli police force. These tensions show no signs of slowing down.

 

The attorneys for the Zivotofsky family have argued that this case has little to do with the geopolitical ramifications of the Israel-Palestinian conflict. For the Zivotskys, it has everything to do with their sense of pride. They just want their son’s birthplace to be “Israel”. Their argument is that a Jerusalem-born American choosing to identify with Israel is a purely individualistic decision, which according to the law passed in 2002, is Menachem Zivotofsky’s right.

 

The State Department has framed the issue differently. While the Zivotofskys argue that the case is a matter of personal identity, the State believes that the case could instigate further complications in the already troubled region. There are about 50,000 other Americans that were born in Jerusalem since 2002, and many of them would presumably like their birthplace record to read differently on their passports.

 

The Israel-Palestinian issue isn’t the only conflict starring in this legal battle. This is also about Congressional power vs. Presidential authority, and which side will acquiesce to the other. Both administrations believed that the provisions passed in 2002 encroached on the power of the executive branch. In particular, the passport mandate was believed to infringe on the Presidents’ power to recognize foreign countries and governments.

 

For the Zivotofsky family, the resolution is a simple one. They would like to declare Israel as Menachem’s birthplace. For the rest of the world it’s not so simple. The case could have longstanding repercussions on a complex and divided region.

 

November 2014

Moshe Kahn, Advocates,
Beit Amot Hashkaot, 7th Fl. 2 Weizmann St. Tel Aviv, 6423902.
Phone: +972-3-6914775

Israeli Business Law משפט עסקי