Legislative Diplomacy After Zivotofsky

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The Supreme Court’s decision in Zivotofsky v. Kerry held that Congress violated the separation of powers by enacting a statute that purported to compel the President to issue statements that contradict his policy of strict neutrality on the status of Jerusalem. In a recent post, I analyzed a disagreement between the majority and the dissent on the significance of foreign perceptions of U.S. law. I’ve now written a second post on the case, this time exploring Zivotofsky‘s implications for the constitutionality of diplomatic communications between Congress and foreign governments. It’s available over at Lawfare.

 

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

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Category: Constitutional Law, International Law & Diplomacy, Public
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On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.

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Israel Reflections 2015 — The Elections

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Category: International Law & Diplomacy, Marquette Law School, Political Processes & Rhetoric, Public
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I know you are all bereft at the thought of the final Israel blog posts!  I’ll be sharing two from my students this week.  The first is on the Israeli elections.  Our trip was perfectly timed right before the Israeli elections and so we had already been learning about the different political parties in Israel and then seeing campaign posters all over the country.

Student Adam Marshall wrote about his experience:

“As a group of young soon-to-be lawyers, it was unbelievable to experience the last leg of a much-awaited election in Israel.   The country, after coming off of a brief war in the summer with its Palestinian neighbors, was eager to see if there would be a change in leadership or if everything would remain business as usual. While the Israeli election got sucked into the American media due to a congressional visit by Prime Minister Benjamin Netanyahu, which sparked a trivial debate between Republicans and Democrats, there was much more meaning to the elections in Israel.

“New elections in Israel meant possible new leadership of the country, which could lead them either closer or further away from peace with Palestine. As a student who arrived in Israel with the goal of studying the conflict, it seemed apparent that this would be the most important talking point in the elections. However, I was shocked to learn that the conflict was in fact not the most important issue in the election. In the end, what seemed to have won Netanyahu his seat once again was his foreign policy, not in regards to Palestine, but rather on Iran’s nuclear program, which was the topic of his controversial speech in the U.S. It seems that the focus on social issues in Israel may have been one reason for the dramatic decline in votes for the Zionist Union [the more liberal party] in the election from what the polls showed.

“The belief going into the election was that the Zionist Union and Herzog would have a chance to beat Likud and Netanyahu, but this was not the case. Instead Likud won 30 seats and the Zionist Union was behind with 24. While talking with different Israeli citizens, this belief that Herzog had a chance of winning remained, even though it was Netanyahu’s face that I saw all over Israel. During our bus rides through the city there were always political ads outside of my window. Whether it was a poster on a light post, a picture on a bus stop, or a giant billboard, there were always political ads in sight. Most of the ads were for Netanyahu, and I presume that is because he had the most money for the campaign, or rather his party did. Israel has a proportional representation voting system so a party runs a list of people with their top politicians at the head of the list. Other parties were represented around the cities, but it was clear that Likud had more area covered.

“One reason why the Israeli-Palestinian conflict may not have been a major issue in the election is that the people of Israel believe that politics remains a major roadblock to peace with Palestine. That is to say that, without the politicization of the conflict, there might actually be a peace agreement made. It seems to be that the split of political parties and the ever-changing party system creates a political scheme in which it is difficult to find peace. Unlike the U.S., Israel has a multi-party system, 10 of which make up the new Knesset after the elections. Parties change and make alliances after each election and this changes the political nature of the election.   If the parties were able to come together on their views regarding the conflict, there might be an actual peace agreement in the near future.

“It will be amazing to compare how my experience in Israel during their elections may be similar or different to my experience in the 2016 elections in the U.S. I assume it will be very different. I have a higher stake in the U.S. elections, and I can actually vote, but comparing campaigning styles and, more importantly, what issues are the most important will be very interesting. I will never forget my experience in Israel and the political culture there.”

We also visited the Knesset (shown below) and student Nate Hofman shared some details:Knesset

 

“On day three of the journey to Israel, our class was fortunate enough to get a tour of the Knesset. The courtyard was adorned with Israeli flags and a long walkway leading up to an impressive building. Unlike our domed capital building, the Knesset building is more rectangular with a flat roof. Once inside, our tour guide greeted us. Unfortunately, the Knesset was not in session because of the elections taking place a week from the time of our visit. We got to see a replica of the Israeli Declaration of Independence. It was written on a scroll, which seemed very Old Testament Israeli and perfectly fitting.

“The Knesset floor looks similar to the Congressional floor. The members sit in a semi circle facing the speaker on a raised podium. Above the 120 seats of the Knesset floor are two levels of viewing seats. The level closest to the floor, where we sat and listened, is used for invited guests and foreign dignitaries. The furthest from the floor is open for the public to view the Knesset.”

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The Study of International Law in Foreign Law Schools: A Brief History

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Category: International Law & Diplomacy, Public
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In my last post I provided a short history on international legal education in the United States. This time I offer the global equivalent: a (very) rough sense for the evolution of law school study requirements in a number of foreign countries, based on a combination of two UNESCO surveys from the mid-twentieth century and my recent research on contemporary practice.

Here are the results: Read more »

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Israel Reflections 2015–Day 6: Givat Haviva

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On our sixth day in Israel, the students visited Givat Haviva, an educational learning campus with a focus on peace in the Middle East. After a short presentation, our guide Lydia Aisenberg took us directly to the Green Line (the 1947 UN Partition Line) that divides the town of Barta’a (or Barta) between Israel and the West Bank. Rather than speak of the conflict that surrounds the town as a negative force, Lydia explained the history of the Green Line, the cultural richness of the town of Barta’a, and what the division means for the future of the conflict.

Student Ellen French shares her thoughts:

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Israel Reflections 2015–Day 5: Dinner in a Druze Village

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Druze-villageThroughout the trip, the students had opportunities to immerse themselves in the culture of Israel. As part of this ethnic immersion, we enjoyed a dinner in a Druze village.  The Druze religion presented both some familiar elements as well as several that were unique to us. Student Samuel Magnuson recollects the dinner, shares background on the Druze, and gives his thoughts on their culture:

On Wednesday, March 11, after a full day in which we visited the Yardenit Baptism site, Haifa University, and the Bahá’í Gardens, we went to a Druze Village near Haifa for dinner. This was one of the highlights of the trip for me because we got to eat an incredible meal prepared by one of the women in the Druze village. I will explain more about what we learned about the Druze in a minute, but I must first discuss the food. When we arrived, we entered a dining hall where we sat at tables of about eight per table. The meal was family-style, meaning that the hosts kept bringing bowls of deliciousness for us to pass around. Of note, we ate stuffed peppers with arguably the sweetest rice I’ve ever experienced. We also had stuffed grape leaves, a really tasty chickpea dish, meatballs, Mediterranean salad, and a main dish of turkey with rice. While all of it was incredible, I must say that the stuffed peppers and chickpeas stood out to me, partially because neither of these dishes are ones I have been incredibly fond of in the States. However, the way the dishes were prepared that night (possibly because of the sauce) led me to eat seconds, thirds, and maybe fourths of each of these items. I also drank several glasses of what I thought was sweet tea . . . only to find out after that this was actually date juice. Fortunately, my stomach was prepared for such an altercation at this junction of the trip. Read more »

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Israel Reflections 2015–Day 5: Haifa University and Sulha

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Our Wednesday morning in the north of Israel started with a visit to Yardenit, a site at the base of the Sea of Galilee where it meets the Jordan River near the biblical baptism site. Then we all headed to Haifa University to meet with Professors Orna Einy, Moti Mironi, and Tali Gal–each of whom work in an area of ADR–to learn about their research. After a quick lunch with them, we then turned our attention to a wonderful guest speaker they arranged for us. In a combination of theoretical, spiritual, and academic learning, the students had the great pleasure of hearing Elias Jabbour speak about “Sulha”, or the traditional peacemaking techniques used in Arab villages throughout the Middle East.

Student Molly Madonia retells two of Mr. Jabbour’s stories and recounts his methods to making Sulha:

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Israel Reflections 2015–Day Four: Mount of the Beatitudes

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First thing on Tuesday morning, we headed to the Mount of the Beatitudes. While the grounds were among the smallest we visited, the impact the Church of the Beatitudes on the students was among the largest.  Student Natalie Schiferl writes:

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A First-Timer’s Reflections on Israel

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IsraelI don’t have a handy quote to use as an epigram, but I’m sure that someone has previously, and pithily, expressed the idea that we travel as much to learn about ourselves as to learn about others.  It’s the original form of comparative analysis, a chance to experience other ways of living and doing and thereby to reflect upon our own.  The immediate effect is (often) the experience of novelty – at root the same thrill that accompanies exposure to a new idea, taste, or sound.  “Here is something I haven’t seen before!”  The lingering effect is that of evaluation, an effort to understand.  We humans like to categorize, and so the urge is to place this new experience within our existing mental boxes.  But the fit is not always perfect. When that happens we have to adjust the boxes, and thus our sense of the world. (Of course, there is a danger here, too. We might be so tempted to place things in our existing boxes that we overlook differences.)

Why the holding forth on travel? I will tell you. I had the opportunity to accompany Professor Andrea Schneider and the thirty-three students in her International Dispute Resolution class on their trip to Israel over Spring Break. It was an amazing trip. We encountered theory in the classroom, and the reality of conflict, borders, and displacement outside of it. The people who showed us these things, both the theoretical and the concrete, are themselves deeply immersed in the effort to achieve peace and mitigate the consequences of conflict. Even what might appear to have been the more conventionally touristy parts of the trip – typically involving some historically and/or religiously significant site –served to underscore just how layered and tangled the region’s issues are.

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Israel Reflections 2015 – Day Three: Daphna Golan and Lifta

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On Monday morning, we were off for a quick stop at the open air market at Machane Yehuda and then a tour of the Supreme Court.  And then we had the distinct treat of our own personal tour of Lifta, a destroyed Palestinian village since 1948 right on the outskirts of Jerusalem.  Leading our tour was Daphna Golan, professor of law at Hebrew University and director of the Minerva Human Rights Program.  Daphna was also a co-founder of B’Tselem, one of the first human rights organizations in Israel promoting Palestinian human rights.  In short, she is a human rights activist extraordinaire.  She is also a big believer of experiential learning and decided that rather than giving us a lecture in a classroom, she would take us on a field trip.  It was amazing!

Lifta-gateway

Student Adam Marshall recounts his experience:

“Our trip to Lifta was arguably the best spontaneous adventure I have ever taken. While on the outskirts of Jerusalem, we were met by Daphna Golan, who is a professor at Hebrew University. Instead of sitting in another lecture and hearing from another professor, she decided that we needed to experience this part of Israel up close. What started off as a seemingly normal walk and talk quickly turned into a breath-taking experience of a historic and neglected Palestinian village. Read more »

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The Study of International Law in American Law Schools: A Brief History

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As I’ve discussed in other posts, international law has a fairly peripheral role in American legal education. Only eight schools require their students to complete a course on the subject, and the range of international electives tends to be quite limited. Wondering whether this is only a recent phenomenon or instead something with deeper roots, I did a little research into historical practice. It turns out that scholars have surveyed the state of international legal education in the United States multiple times over the course of the past century. By combining their work—including two particularly good pieces by Manley Hudson (1929) and William Bishop (1953)—with a recent survey of my own, we can gain at least a rough sense for how the curriculum has evolved over time. Here’s what I found:

First, international law had a role even in the Founding era. In 1779, for example, the law of nations was added to the instructional duties of the “moral professor” at William & Mary. In 1790, James Wilson devoted a “considerable part” of his lectures at the College of Philadelphia to the law of nations, while James Kent lectured on the subject at King’s College just a few years later. According to Hudson, “the law of nations had a recognized place in the pursuit of a legal education, and it formed a part of the learning of many of the better-educated lawyers” of the period. Read more »

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Israel Reflections 2015–Day Two (Last One!): Gershon Baskin and IPCRI

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gershonbaskin2130_800Late in the evening on Sunday, March 8, we met with Gershon Baskin and Riman Barakat.

This was our last (official) meeting of a long day involving talks about peace and conflict resolution, and it way it was, as student Kelsey Mader called it, “the perfect way to end.” The rest of Kelsey’s recap follows:

We met Gershon and Riman at The Israel Palestine Center for Research and Information (IPCRI), an organization in Jerusalem that focuses on resolving the Israeli-Palestinian conflict with a focus on peace and coexistence.  IPCRI supports a two-state solution in which both the Israeli and Palestinian people would have a nation and place to call home.  Gershon and Riman were both on the founding team of this organization and are still working unwaveringly toward their goal of peace.  You can visit IPCRI’s website for more information: http://ipcri.org/httpdocs/IPCRI/Who_We_Are.html.

Gershon Baskin has been involved in many negotiations on behalf of Israel – very notably, Gershon negotiated on behalf of Israel for the release of Gilad Shalit from Hamas’s control in the Gaza strip.  Gershon had many pieces of insightful information to share with us regarding his experiences and his opinions about how Israel and Palestine should move forward, but what stood out to me most was the list of eight things he shared as vital elements to a peace resolution.  Those eight elements were: (1) Palestinian statehood; (2) borders; (3) Jerusalem; (4) refugees; (5) physical link between Gaza and the West Bank; (6) economics; (7) national resources; and (8) security arrangements.  This was the first time I remember someone so clearly articulating their thoughts about a peace resolution.  It hit me how complex and emotional this issue is – eight large, heavy, sensitive elements that must be a part to a successful agreement.  It struck me how idyllic peace seems – are we crazy to strive for it when there is so much that seems to stand in the way?  Or are we crazy not to?

Cross-posted at http://www.indisputably.org.

 

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