Topics

Guest Post: De Jure and de Facto Recognition as a Framework for Zivotofsky

[Ryan Scoville is an Assistant Professor of Law at Marquette University Law School.] Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, Zivotofsky concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. Oral arguments are scheduled for the fall. The case has generated a lot of interesting commentary, the most impressive of which is a pair of law review articles (here and here) by Robert Reinstein, who uses textual and historical analysis to argue that the President shares the recognition power with Congress. In this post, I want to sketch out an alternative view that grants substantial recognition powers exclusively to the President while also making sense of Professor Reinstein’s historical research. As I understand it, Reinstein’s argument goes like this: First, claims of executive exclusivity must meet a heavy burden of persuasion because plenary executive power is contrary to the Constitution’s system of checks and balances. Second, the claim of an exclusively executive power over recognition fails to meet this burden—the plain text of the Constitution offers no support, evidence of original meaning is silent, and post-ratification history suggests, if anything, that the political branches hold the recognition power concurrently. Congress thus shares authority to recognize foreign states and governments. Reinstein focuses more on defeating the idea of plenary executive power than identifying the affirmative source of a concurrent power in Article I, but he notes that Congress’s authority to declare war, regulate foreign commerce, and enact necessary and proper legislation creates an implied basis for congressional recognition. In laying out an alternative view, I want to suggest first that it’s important to be precise about what “recognition” means. International law of course differentiates between the recognition of states and governments, and between recognition de jure and de facto. With de jure recognition of a state, the United States expresses that a given political unit qualifies as a state under international law and thus holds the rights and obligations that accompany statehood, including the right to invoke sovereign immunity and the act of state doctrine as defenses in court. De jure recognition of a government, by contrast, is acknowledgment of a foreign government as the depository of a state’s sovereignty. This kind of recognition signals a general willingness to enter into normal diplomatic relations and facilitate the government’s exercise of the state’s sovereignty vis-à-vis the United States. Finally, de facto recognition also entails a willingness to carry on official relations, but without necessarily saying anything about the particular form those relations will take. One can de facto recognize a foreign government, for example, without exchanging ambassadors or providing its leaders with immunity from suit. (For a more extensive discussion, see the work of Stefan Talmon.)

Weekly News Wrap: Monday, April 28, 2014

Your weekly selection of international law and international relations headlines from around the world: Africa South Africa is celebrating the 20th anniversary of its first ever all-race, democratic election that ended decades of racial oppression under the apartheid system. International mediators have called on South Sudan's rebel leader to meet his rival President Salva Kiir to prevent an ethnic-fuelled conflict turning into a...

Weekend Roundup: April 19-25, 2014

This week on Opinio Juris, we teamed up with EJIL:Talk! to bring you a transatlantic symposium on Karen Alter's book The New Terrain of International Law. You can find Karen's introduction to her book here, followed by comments by Tonya Putnam, Roger Alford and Jacob Katz Cogan. Karen's reply is here. Other guests this week were Paula Gaeta who explained why she is not convinced by...

Detention Post-Gitmo II: A Surreply to Steve Vladeck

Thanks to Steve Vladeck for his thoughtful response to my critique of his paper posted earlier this week. In great sum, Steve has a paper out proposing that the United States hold the remaining Gitmo detainees in the United States under a domestic immigration detention statute to ease the way for Congress to repeal the AUMF statute (under...

Emerging Voices Deadline Approaching!

To all doctoral students and early career academics or professionals who would like to contribute to our blog in July or August, remember that applications for our second Emerging Voices symposium are still open until May 1. We'd love to hear from you! More information is here....

For More Effective Sanctions, Time to Examine Question of Termination

Over the last two decades, the key policy question surrounding multilateral sanctions has been effectiveness. Because of studies that suggest that sanctions are effective only about one-third of the time, there has been a concerted effort to develop so-called “smart sanctions,” which increase the effectiveness of Security Council sanctions at the front end by targeting specific groups, individuals, and entities....