Contents
Foreign State Recognition
Executive Branch Authority Over Foreign State Recognition in 2013
United States views on international law [1] in relation to Executive Branch Authority Over Foreign State Recognition: On July 23, 2013, a three judge panel of the U.S. Court of Appeals for the District of Columbia decided the case, Zivotofsky v. U.S. Secretary of State, 725 F.3d 197 (D.C. Cir. 2013). The case was remanded by the U.S. Supreme Court to the court of appeals in 2012 for a determination of the constitutionality of a law requiring the Department of State to record “Israel” as the place of birth for a U.S. citizen born in Jerusalem upon request of that citizen. For prior developments in the case, see this world legal encyclopedia (in relation to issues that took place in the year 2006) at 530-47, this world legal encyclopedia (in relation to issues that took place in the year 2007) at 437-43, this world legal encyclopedia (in relation to issues that took place in the year 2008) at 447-54, this world legal encyclopedia (in relation to issues that took place in the year 2009) at 303-10, this world legal encyclopedia (in relation to issues that took place in the year 2011) at 278-82, and this world legal encyclopedia (in relation to issues that took place in the year 2012) at 283-86. On remand, the court of appeals struck down the provision as unconstitutional, reasoning that it infringes on the exclusive authority of the executive branch to determine which states, governments, and sovereign territories the United States recognizes. Excerpts follow from the opinion of the majority of the appeals court (with footnotes omitted). One of the three judges wrote a separate concurring opinion. On November 20, 2013, a petition for writ of certiorari was filed.**
Some Aspects of Executive Branch Authority Over Foreign State Recognition
Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub.L. No. 107– 228, 116 Stat. 1350, requires the Secretary (Secretary) of the United States Department of State (State Department) to record “Israel” as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian so requests. Id. § 214(d), 116 Stat. at 1366. The Secretary has not enforced the provision, believing that it impermissibly intrudes on the President's exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. We agree and therefore hold that section 214(d) is unconstitutional.
Developments
A. The Recognition Power
Recognition is the act by which “a state commits itself to treat an entity as a state or to treat a regime as the government of a state.” RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 94(1). “The rights and attributes of sovereignty belong to [a state] independently of all recognition, but it is only after it has been recognized that it is assured of exercising them.” 1 John Bassett Moore, A Digest of International Law § 27, at 72 (1906) (MOORE'S INT'L LAW DIGEST). Recognition is therefore a critical step in establishing diplomatic relations with the United States; if the United States does not recognize a state, it means the United States is “unwilling[ ] to acknowledge that the government in question speaks as the sovereign authority for the territory it purports to control.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). Recognition also confers other substantial benefits. For example, a recognized sovereign generally may (1) maintain a suit in a United States court, see id. at 408–09, 84 S.Ct. 923; Guaranty Trust Co. v. United States, 304 U.S. 126, 137, 58 S.Ct. 785, 82 L.Ed. 1224 (1938); (2) assert the sovereign immunity defense in a United States court, see Nat'l City Bank v. Republic of China, 348 U.S. 356, 359, 75 S.Ct. 423, 99 L.Ed. 389 (1955); and (3) benefit from the “act of state” doctrine, which provides that “[e]very sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory,” Oetjen v. Cent. Leather Co., 246 U.S. 297, 303, 38 S.Ct. 309, 62 L.Ed. 726 (1918) (quotation marks omitted).
Details
A government typically recognizes a foreign state by “written or oral declaration.” 1 MOORE'S INT'L LAW DIGEST § 27, at 73. Recognition may also be implied as “when a [recognizing] state enters into negotiations with the new state, sends it diplomatic agents, receives such agents officially, gives exequaturs to its consuls, [and] forms with it conventional relations.” Id.; see also David Gray Adler, The President's Recognition Power, reprinted in The Constitution and the Conduct of American Foreign Policy 133 (David Gray Adler & Larry N. George eds., 1996) (“At international law, the act of receiving an ambassador of a foreign government entails certain legal consequences. The reception of an ambassador constitutes a formal recognition of the sovereignty of the state or government represented.”).
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As noted earlier, the Supreme Court has directed us to examine the “textual, structural, and historical evidence” the parties have marshaled regarding “the nature … of the passport and recognition powers.” Zivotofsky V, 132 S.Ct. at 1430. We first address the recognition power and, in particular, whether the power is held exclusively by the President.
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B. The President and the Recognition Power
Text and Originalist Evidence Neither the text of the Constitution nor originalist evidence provides much help in answering the question of the scope of the President's recognition power. In support of his view that the recognition power lies exclusively with the President, the Secretary cites the “receive ambassadors” clause of Article II, Section 3 of the Constitution, which provides, inter alia, that the President “shall receive Ambassadors and other public Ministers.” U.S. CONST., art. II, § 3. But the fact that the President is empowered to receive ambassadors, by itself, does not resolve whether he has the exclusive authority to recognize foreign nations. Some scholars have suggested other constitutional provisions as possible sources of authority for the President to exercise the recognition power but conclude that the text of those provisions does not itself resolve the issue.
Originalist evidence also fails to clarify the Constitution's text. …
Executive Branch Authority Over Foreign State Recognition
In relation to the international law practice and executive branch authority over foreign state recognition in this world legal Encyclopedia, please see the following section:
Diplomatic Relations, Succession, Continuity of States, and Other Statehood Issues
Note: there is detailed information and resources under these topics during the year 2013, covered by this entry on executive branch authority over foreign state recognition in this law Encyclopedia.
U.S. Executive Branch Authority Over Foreign State Recognition and Passport Issuance
In relation to the international law practice and Executive Branch Authority Over Foreign State Recognition and Passport Issuance in this world legal Encyclopedia, please see the following section:
Diplomatic Relations, Succession, Continuity of States, Statehood Issues
Resources
Notes
- Executive Branch Authority Over Foreign State Recognition in the Digest of United States Practice in International Law