Sovereign immunity: past, present and future

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On November 20, 2020, the Congressional Study Group on Foreign Relations and National Security met online to discuss the past, present, and future of sovereign immunity. Recent debates in Congress about the possibility of hold China civilly liable about the coronavirus, allowing people to sue state sponsors of cyber crimeY potential civil liability for acts of terrorism they have involved core issues of sovereign immunity, that is, the set of key international legal protections that the United States implements largely, but not entirely, through the Foreign Sovereign Immunity Act (“FSIA”). But what might adjusting these immunities under these circumstances mean for US foreign policy more broadly?

To discuss this topic, two external experts joined the study group: Chimène Keitner, professor of law at the University of California Hastings School of Law and former Counselor for International Law at the US Department of State; Y ingrid wurthlaw professor at Vanderbilt Law School and one of the reporters on sovereign immunity issues for the American Law Institute’s Fourth Restatement of US Foreign Relations Law.

Before the session, the external experts and the organizers of the study group recommended the following preliminary readings:

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Keitner and Wuerth opened with some background on sovereign immunity and the role it has played in international law and international relations. Rooted in customary international law, sovereign immunity generally protects states and their officials from a variety of legal proceedings in the domestic courts of other foreign states. Initially, these immunities were quite broad, but throughout the 20th century, many states (including the United States) began to adopt a “restrictive theory” that treated foreign states and their agencies and instrumentalities as private actors for commercial activities while maintain sovereign immunity for public and sovereign activities of states. At the time, the US government often played a central role in making decisions that it then communicated to the courts about how immunities should be applied in particular cases, but this was suboptimal as it often turned the legal disputes at a point of political controversy. So, in 1976, Congress enacted the FSIA both to codify the restrictive view of sovereign immunity for foreign states and their agencies and instrumentalities, and to establish objective rules for courts to apply rather than resort to the executive branch for determinations on a case-by-case basis. by case.

Since the 1990s, Congress has repeatedly amended the FSIA to remove or limit sovereign immunity in relation to acts of terrorism and designated state sponsors of terrorism, including the enforcement of terrorism-related judgments against state-owned assets that otherwise they might be protected from seizure. This often reflects understandable domestic political pressure to address acts of terrorism, but these exceptions have proven controversial internationally and have often been opposed by the executive branch for fear of international repercussions. Many foreign states and international legal experts argue that they are inconsistent with the sovereign immunity the United States is required to provide under customary international law. This not only causes diplomatic complications, but could lead to reciprocal action against the United States, which benefits greatly from sovereign immunity and the international legal order in general by virtue of its large global presence.

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In recent years, Congress has frequently considered legislation replicating this model of terrorism to address other issues by exposing foreign states to civil liability in US courts for various objectionable conduct, ranging from paper from China in the global coronavirus pandemic to state support for cybercriminal activities. This reflects a growing view that liability exposure can and should be viewed as a foreign policy tool akin to economic sanctions. But such exceptions would likely prove even more controversial than those for terrorism and could result in a stronger rejection. Furthermore, there are good reasons to doubt that US courts are well equipped to handle disputes over conduct that largely takes place abroad and involves a variety of diplomatic considerations. Domestic plaintiffs are also likely to have great difficulty enforcing any judgment, leaving them uncompensated and potentially frustrated. Therefore, these regimes raise a number of legal and political issues that deserve careful consideration before being implemented.

Keitner and Wuerth also noted several areas where input from Congress could be helpful in clarifying aspects of sovereign immunity law. The Supreme Court recently clarified that the FSIA does not cover the immunity of individual foreign officials, which, outside the context of diplomatic and consular officials, whose immunities are governed by a separate statutory regime, is governed by customary international law and is generally determined on the basis of case-by-case guidance by the executive branch. Input from Congress could clarify how immunities should be applied to foreign officials. There is also an ongoing legal debate as to whether the FSIA only applies to civil matters or applies to criminal law matters as well. Congress could play a valuable role in clarifying this issue, which has begun to surface in litigation with increasing frequency with the proliferation of state-owned businesses and corporations.

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The study group then moved into open discussion on a variety of topics, including: the political factors surrounding many sovereign immunity issues; how proposed abrogations of sovereign immunity often play out in debates between Congress and the executive branch; the range of international consequences that could result from undermining sovereign immunity; the defense dynamics that often surround proposed changes to sovereign immunity; and possible alternative accountability mechanisms.

Visit the home page of the Congressional Study Group on Foreign Relations and National Security for notes and information on other sessions.



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