In 2006, Eliyahu Veffer wanted Canada to recognize his birthplace, Jerusalem, as part of Israel. He took his case all the way to the Federal Court of Canada, which ruled that, according to Canadian law, the status of Jerusalem is still unresolved, and not a part of Israel. Read more…
A decision rendered by the Federal Court of Canada twelve years ago now bears heavily on the current debate over whether Canada should recognize Jerusalem as the Capital of Israel. The Trudeau government has declined to do so, but that position has been criticized by various conservative political columnists including John Robson writing in the National Post. Andrew Scheer, leader of the opposition, says he would move our embassy to Jerusalem if elected.
Scheer’s position flies in the face of international law, according to which the status of Jerusalem remains to be worked out as part of a final agreement between Israel and the Palestinians.
This position was reaffirmed by the UN General Assembly in a lopsided vote on December 21, which again urged all member states to refrain from taking any steps until the final agreement has been settled. Though the USA was not mentioned by name in the resolution, it was clear to all that the motion was a rebuff to Donald Trump.
Curiously, Canada abstained on that UN vote. Curious because in fact, Canada’s position on this issue has already been brought before Canada’s courts, and Canada’s position is clear. According to current Canadian law, Canada does not recognize any part of Jerusalem as part of Israel.
What’s in a passport?
Interestingly, the issue came up as a simple complaint over a passport. In 2004, Passport Canada refused a request from Eliyahu Veffer, an 18 year old Canadian man to have “Jerusalem, Israel” shown as his birthplace on his Canadian passport. “Jerusalem” alone was OK, but “Jerusalem, Israel’ was not OK, said Passport Canada.
In justifying its refusal to accede to his request, Passport Canada wrote:
“The Government of Canada has established that designation for individuals born in Jerusalem be indicated as Jerusalem alone and in full in the Canadian passport. There is one exception for individuals born before May 14, 1948. Upon request, Palestine may be written instead of Jerusalem”.
Two years later, the Federal Court upheld the original decision by Passport Canada. It ruled the government is justified in its policy of declining to put “Jerusalem, Israel” on passports “because the city’s status is unresolved”. Although Israel calls Jerusalem its eternal capital, almost all foreign embassies have remained firmly planted in Tel Aviv.
The reason for the Passport Office’s refusal was succinctly stated in an affidavit by Michael Bell, Canada’s former ambassador to Israel who was called as an expert witness. The court accepted his submission as valid and included it in the court’s judgement.
“With regard to the status of the City of Jerusalem, Canada opposes Israel’s occupation of East Jerusalem and at this time does not recognize Israeli sovereignty over any part of the City of Jerusalem, as defined in the Partition Plan of 1947, on either side of the Green Line, east or west. The inscription of “Jerusalem, Israel” as place of birth in Canadian passports would be perceived as a recognition of sovereignty in contradiction of that policy, which would undermine Canada’s credibility and would therefore diminish our capacity to make any contribution toward peace,” submitted Bell.
“Canada opposes Israel’s occupation of East Jerusalem and at this time does not recognize Israeli sovereignty over any part of the City of Jerusalem, as defined in the Partition Plan of 1947, on either side of the Green Line, east or west.”
– 2006 Affadavit of Michael Bell, former Canadian Ambassador to Israel
In making its decision, the Federal Court reviewed the history of the creation of the State of Israel and its relationship to Jerusalem, noting that UN resolution 181 which created a “Jewish State” and an “Arab State”, specifically excluded Jerusalem which was to be kept separate under international supervision.
It also noted that when Israel applied for membership in the United Nations in 1949, its representative Abba Eban was asked whether Israel was claiming sovereignty over Jerusalem.
The question, and Eban’s answer, are cited in the FCC decision:
“Could the representative of Israel tell us whether, if Israel were admitted to membership in the United Nations, it would agree to co-operate subsequently with the General Assembly in settling the question of Jerusalem and the refugee problem or whether, on the contrary, it would invoke Article 2, paragraph 7 of the Charter which deals with the domestic jurisdiction of States.”
To this question, Mr. Eban replied:
” (…) I do not think that Article 2, paragraph 7, of the Charter, which relates to domestic jurisdiction, could possibly affect the Jerusalem problem, since the legal status of Jerusalem is different from that of the territory in which Israel is sovereign.”
The Federal Court of Canada decision
On May 1, 2006, Judge Conrad Von Finckenstein, ruling for The Federal Court of Canada, upheld the decision of Passport Canada. The full record of the FCC decision, including a review of the legal history of Jerusalem, makes interesting reading and is available at the FCC site HERE.
The FCC decision was subsequently confirmed on appeal by the Federal Court of Appeal. The applicants further tried to take the issue to the Supreme Court of Canada which declined to hear the appeal. This essentially means the weight of the FCC decision has the authority of the Supreme Court of Canada.
(Source / 11.04.2018)