The Recognition Power After Zivotofsky v. Kerry

Recognition is one of the few aspects of U.S. foreign relations law that has been squarely addressed by the U.S. Supreme Court. In its 2015 decision in Zivotofsky v. Kerry, the Court confirmed that, under the U.S. Constitution, “the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency” and thus beyond the authority of Congress or the courts.Footnote ² The majority described this authority as “quite narrow,” extending “no further than [the president’s] formal recognition determination.”Footnote ³ Yet it also concluded that such authority allows the president to “maintain that determination in his and his agent’s statements,” even where a contrary statement “would not itself constitute a formal act of recognition.”Footnote ⁴ The dissenting justices seized on this apparent contradiction as a sign that the majority had opened the door to a far broader exclusive recognition power than it acknowledged.Footnote ⁵ How broad, however, remains unclear.

At a minimum, Zivotofsky establishes that the president alone can make formal de jure recognition determinations for the United States. He or she can also ensure that those determinations are accurately reflected in executive branch statements, including diplomatic communications. Less clear, however, is whether the president’s exclusive recognition power also controls the legal consequences that commonly flow from recognition, such as access to U.S. courts, application of the act of state doctrine, sovereign immunity, and the control of foreign state-owned assets. The majority only notes that “[f]ormal recognition may seem a hollow act” absent “the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties,” all of which “require action by the Senate or the whole Congress”Footnote ⁶ —suggesting that the recognition power does not disable Congress from acting in at least some such areas.

Also unclear is the extent to which Zivotofsky bears on de facto, as opposed to de jure, recognition. The Zivotofsky majority only addresses its holding to “formal recognition” of the sort “effected by … the conclusion of a bilateral treaty … [or] the dispatch of an ambassador”—acts that traditionally imply de jure recognition.Footnote ⁷ The Supreme Court has occasionally linked the two in the pastFootnote ⁸ and federal courts traditionally give the views of the executive branch “considerable weight” in identifying de facto governments.Footnote ⁹ But whether such determinations are also within the president’s exclusive authority—as the Trump administration has suggested in recent litigationFootnote ¹⁰ —is an open question Zivotofsky does not answer.

Regardless, as federal courts generally look to de jure U.S. recognition policies in determining the governmental status of foreign regimes, Zivotofsky puts the onus for complying with relevant international standards primarily on the president. But such compliance may not be the president’s top concern. Past presidents have sometimes used de jure recognition to advance U.S. policy goals in ways that are arguably in tension with international standards—for example, by recognizing opposition movements with limited control over Libya and Venezuela as those countries’ de jure governmentsFootnote ¹¹ or withholding de jure recognition from the Taliban regime in apparent effective control of Afghanistan.Footnote ¹² Critics note that such departures from international standards could constitute unlawful interference in another state’s internal affairs, particularly where intended to have a coercive effect.Footnote ¹³ Yet Zivotofsky suggests that such decisions are the president’s sole prerogative, giving her or him seeming complete authority over U.S. compliance.

Compliance in U.S. Recognition Practice

Actual U.S. recognition practice, however, paints a more complicated picture. Over time, Congress, the federal courts, and the executive branch have all taken steps to extend standards of treatment associated with recognition to unrecognized regimes—and, more rarely, to withhold them from recognized foreign governments. While the exception rather than the rule, such practices illustrate the complex array of factors beyond de jure recognition alone that can bear on the U.S. treatment of foreign regimes.

Congress has played perhaps the clearest role in extending U.S. standards of treatment to unrecognized foreign regimes through the Taiwan Relations Act.Footnote ¹⁴ Enacted in 1979 shortly after the Carter administration de-recognized the Taiwan-based Republic of China government, the Act mandates that U.S. laws should still “apply … in the manner that the laws of the United States applied with respect to Taiwan” prior to de-recognition, providing the regime in Taiwan the same treatment it received when it was a de jure foreign government.Footnote ¹⁵

Congress may also have disconnected certain traditional legal consequences of de jure recognition from U.S. recognition policy. Since the 1977 enactment of the Foreign Sovereign Immunities Act (FSIA), several courts have used international law standards to independently evaluate what constitutes a “foreign state” entitled to sovereign immunity under the FSIA, on the logic that Congress intended to shift immunity determinations from the executive branch to the courts.Footnote ¹⁶ That said, no court has yet reached a conclusion contrary to U.S. recognition policy and the executive branch has suggested that doing so would intrude on the president’s recognition power, leaving the full implication of these decisions unclear.Footnote ¹⁷

At times, federal courts have taken similar steps. Following the Civil War, the Supreme Court wrestled with the legal status of various actions undertaken by the (decidedly unrecognized) state governments of the Confederacy. While U.S. courts generally only accept the acts of state of recognized foreign governments as valid,Footnote ¹⁸ the Court held that “acts necessary to peace and good order among citizens,” such as those regulating domestic relations, contracts, and property, “which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government,” so long as they were not done “in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens.”Footnote ¹⁹ Lower federal courts have since extended this same standard to foreign de facto governments, accepting the validity of domestic acts that deal “solely with private, local[,] and domestic matters” and are not contrary to U.S. public policy.Footnote ²⁰

On similar logic, federal courts have also installed exceptions to the traditional bar on unrecognized regimes being able to access U.S. courts.Footnote ²¹ Federal courts have frequently allowed foreign de facto governments to effectively participate in U.S. litigation matters through independent agencies and instrumentalities or assignees created pursuant to their domestic laws.Footnote ²² At times, the executive branch has also successfully urged courts to allow unrecognized foreign regimes to represent their states in U.S. litigation on the grounds that doing so is not inconsistent with U.S. foreign policy interests.Footnote ²³

The executive branch has also occasionally declined to extend certain incidents of governmental status to regimes that it has de jure recognized. As part of the justification for its 1989 intervention in Panama, the George H.W. Bush administration noted that it had the support of the exiled Endara government, which it recognized as Panama’s de jure government. But instead of relying on the Endara government’s consent as the international legal basis for its actions, the United States asserted that it was acting pursuant to its inherent right of self-defense.Footnote ²⁴ In later remarks, then-Legal Adviser Abraham Sofaer explained that consent alone would only have been adequate if the Endara government had “controlled Panamanian territory and been able to exercise governmental powers ….” ^{Footnote 25} This suggests that the executive branch was not comfortable relying solely on the consent of a regime not in effective control of a state to justify the use of military force on that state’s territory, even if de jure recognized. Notably, this pattern has held true in at least some subsequent cases as well.Footnote ²⁶

Finally, both Congress and the executive branch have sometimes taken steps to divorce the disposition of foreign state-owned property from U.S. recognition policy. In 1941, Congress enacted a law—now contained in section 25B of the Federal Reserve Act—providing financial institutions a safe harbor from liability arising from the handling of foreign state-owned assets, so long as they follow the instructions of whomever the State Department certifies as the state’s representative.Footnote ²⁷ The intent of this provision was to ensure that such assets remained available to U.S.-backed governments-in-exile—particularly those of European governments displaced by Nazi Germany—even if their control were challenged in U.S. courts by successor regimes in effective control of their states.Footnote ²⁸ In most cases, this reinforces the general rule that only de jure governments can control foreign state-owned assets. But in 2022, the Biden administration used it for a different purpose: to empower two former Afghan officials to transfer certain Afghan central bank assets to a private trust to insulate them from U.S. litigation, in spite of the fact that it expressly did not recognize any de jure government of Afghanistan.Footnote ²⁹

Of course, much of this practice predates Zivotofsky, which may well have been intended to supersede it. But if one takes the Supreme Court at its word about the narrowness of its holding, this seems unlikely. Moreover, Zivotofsky’s holding that the recognition power is exclusive to the president was not entirely novel; indeed, it more or less reflected the conventional wisdom up to that point.Footnote ³⁰ Yet courts and other institutions did not view this exclusive recognition power as a barrier to such interbranch practice. The same seems likely to hold true today.

Implications for International Legal Standards

The president’s exclusive control over de jure recognition (and, at a minimum, substantial influence over de facto recognition) gives her or him primary responsibility for U.S. compliance with relevant international legal standards regarding governmental status. Moreover, if the president is determined to pursue de jure recognition in a manner inconsistent with international law, Zivotofsky suggests no other domestic institution can stand in her or his way.

Other institutions can, however, bear substantially on the U.S. treatment of foreign regimes, whether de jure or de facto—and such treatment is ultimately what international law addresses. Both Congress and federal courts have at times identified and extended certain minimal standards of treatment to unrecognized de facto governments. Congress has also regulated the treatment of recognized and unrecognized foreign regimes alike in ways independent of formal U.S. recognition policy. By tying such treatment to international law standards—as some courts have concluded it has already done in regard to sovereign immunity through the FSIA—Congress might be able to mitigate much of the international legal harm that an irresponsible president could produce through her or his control of de jure recognition, at least up to the uncertain limits of the recognition power. The threat of such interbranch pushback is no doubt an important constraint on the president’s otherwise exclusive authority over de jure recognition. Such interbranch dialogue is also an arena where international legal standards may prove influential by providing default presumptions for courts, guidelines for Congress, and a starting point for consensus-building.

At a minimum, any assessment of U.S. compliance with international standards must look past its de jure recognition policy to the other institutions and factors that can affect the treatment of de facto governments and other foreign regimes. This is not a defense of U.S. conduct, as there are ample grounds for criticism even under this standard. But such an approach can help sharpen criticisms and point toward clearer correctives.

It also highlights a consequential gap in international standards. Many of the traditional incidents of de jure recognition that the United States withholds from unrecognized de facto governments—diplomatic relations, access to U.S. courts, application of the act of state doctrine—are viewed as non-obligatory by other states as well.Footnote ³¹ By contrast, the one consequence that even the U.S. executive branch appears to make contingent on effective control—consent to the use of force—aligns with some of the most well-recognized rights that international law provides to states and governments, whether de facto or de jure.Footnote ³² Between these two points, there is relatively little clarity regarding what exact minimum standard of treatment a state is obligated to provide to a de facto government that it does not de jure recognize. Clarifying this standard would promote consistency and reduce confusion regarding when a state is meeting its international legal obligations. It could also help constrain states from using recognition as a foreign policy tool in ways that are in tension with international law—and free them to do so in ways that are not.