SOVEREIGN
IMMUNITIES &
FOREIGN SOVEREIGN
IMMUNITIES ACT
Prof David K. Linnan
USC LAW # 783
Unit 15
ELEMENTS I
HOW FSIA FITS INTO SOVEREIGN IMMUNITIES & SIMILAR
IDEAS
1.
Traditional movement from absolute to restrictive
(non-commercial immunity)
2.
US movement in 1952 to restrictive view, now under
FSIA expanding beyond commercial activity
3.
Parallel human rights law claims about jus cogens acts
should not benefit from immunities coverage, but
arguments about coverage of head of state/state
officials vs criminal or civil (tort) coverage
4.
Issues re inconsistency in US rejecting, for example,
ICC as “criminal” jurisdiction internationally while
expanding “tort” jurisdiction domestically (1996 FSIA
amendments under Anti-Terrorism and Effective Death
Penalty Act)
ELEMENTS II
HOW FSIA FITS INTO SOVEREIGN IMMUNITIES & SIMILAR
IDEAS (CONT’D)
5.
Parallel concerns to Act of State doctrine and hidden
constitutional issues (e.g., control of assertion of
private claims by private claimants via domestic courts
vs control by executive in older manner of diplomatic
protection)
6.
Ultimate issues are
a.
Is FSIA now beyond sovereign immunities in
general international law terms (hidden human
rights law collision)
b.
How to deal with state officials misdeeds and
whether the ultimate outcome is respondeat
superior type liability (sounds nice, but
remember Abu Gharib scandal)
ELEMENTS III
HOW FSIA FITS INTO SOVEREIGN IMMUNITIES & SIMILAR
IDEAS (CONT’D)
c.
How to deal with FSIA’s non-coverage of head
of state & govt officials, meaning what is
customary law coverage
d.
Viewed as state responsibility on int’l law side,
example of US views re compensatory or tort
emphasis vs foreign views as int’l law rather
not about money
e.
Viewed as constitutional law issue on foreign
affairs side, what to do about ultimate source
of act of state doctrine as separation of powers
compelled, or what
ULTIMATE LESSON IS HIDDEN FIGHTS ABOUT SUBSTANTIVE
MATTERS IN TERMS OF INT’L LAW SYSTEM BASIS
CROSSING OVER INTO DOMESTIC LAW
LIMITATIONS
THEORIES OF SOVEREIGN
IMMUNITY
1. Traditional absolute (Schooner
Exchange)
2. Modern restrictive form (Dralle)
OLDER VIEW
ABSOLUTE, OLDER VIEW
1.
Schooner Exchange v. McFadden (1812)
Claim by US citizens of property in a ship driven
into port by storm and now being a French warship,
that French seizure improper (no prize court)
2.
19th century saw research vessels, etc., but pressure
in 20th century with large state-owned merchant
fleets (growing state commercial activity)
3.
20th century Soviet view of immunity still as
sovereignty problem rather than activity based
(trade delegations)
NEWER VIEW
RESTRICTIVE, NEWER FORM
1.
Dralle v. Republic of Czechslovakia (1950)
German company with branch in Bohemia,
registered owner in Austria of trademarks used in
Austria by German company for products, then
Bohemian branch nationalized and Czechs
claimed trademarks excluding Austrian use
2.
Claims state practice has changed generally with
increasing commercial activity (starting with
shipping)
3.
US changed to restrictive theory 1952
INT’L LAW VS STATUTES
PROBLEM OF MUNICIPAL STATUTES NOW DIFFERING FROM
CUSTOMARY LAW, WITH ISSUE IF MAKING NEW LAW OR
VIOLATING OLD
E.g., US (Foreign Sovereign Immunities Act of 1976) & UK 1978
Issue of definition of commercial act, FSIA by reference to
course of conduct or particular transaction rather than
purpose
– Hypo: int’l bank loan for infrastructure development & to buy
airplanes for LDC air force, how to judge, commercial (reasoning
all way back to Schooner Exchange)?
Common issue of SOE (50% ownership) deemed to be state
IDEA THAT FSIA ONLY COVERS STATES, SO INTERPRETIVE
ISSUES RE EXTENDING TO OFFICIALS OR RECOURSE TO
CUSTOMARY LAW
ORIG FSIA STRUCTURE
CONCERNS RE UNIFORMITY OF LAW & CAUSING PROBLEMS IN
EXECUTIVE BRANCH CONDUCT OF FOREIGN RELATIONS
1.
Original FSIA idea of putting foreign states into nonjury federal trials (but default aspects)(Section 1330(a))
2.
Focus on commercial act & restrictive immunity
interpretation (Sections 1602, 1605(a)(2))
3.
Distinguish between pre-judgment attachment &
enforcement remedies (Sections 1609-1611)
4.
Problematic exclusion of state officials (Section
1603)
5.
Idea of state including SOEs, majority owned (Section
1603(b)(2))
POST-1996 FSIA
ANTITERRORISM AND EFFECTIVE DEATH
PENALTY ACT OF 1996 ABANDONMENT OF
COMMERCIAL EXCEPTION AS ORIGINAL FISA
BASIS
New Section 1605(a)(7) now permits suits
“[I]n which money damages are sought against a
foreign state for personal injury or death that was
caused by an act of torture, extrajudicial killing,
aircraft sabotage, or the provision of material
support … by an official, employee, or agent of
such foreign state
[within the scope of his duties, with exceptions if
arbitration or neither claimant nor victim US
national]
RATIONALE I
ANTITERRORISM AND EFFECTIVE DEATH
PENALTY ACT OF 1996 ABANDONMENT OF
COMMERCIAL EXCEPTION AS ORIGINAL FISA
BASIS
1.
Confluence of jus cogens discussion &
domestic politics (Cuban aircraft shot-down;
so odd coalition of human rights activists,
Republicans & trial lawyers)
2.
Issue how to read scope of office (e.g.,
respondeat superior liability for any soldier’s
or intelligence agent’s act, remembering Abu
Gharib)
RATIONALE II
ANTITERRORISM AND EFFECTIVE DEATH
PENALTY ACT OF 1996 ABANDONMENT OF
COMMERCIAL EXCEPTION AS ORIGINAL FISA
BASIS (CONT’D)
3.
Visible resistance on the other hand in
US with ICC & criminal jurisdiction, so
conflict
4.
Problems already under Clinton
administration resolved in paying out of US
Treasury & subrogating claims
UNDERLYING CONFLICT WITH THE EXECUTIVE
CONDUCTING FOREIGN POLICY AROUND
PRIVATE LITIGATION, SO CONFLICT
MINIMIZATION OF ORIGINAL FSIA GONE
ACT OF STATE
SABBATINO CASE & ISSUE RE BASIS OF ACT OF STATE
Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964)
Expropriation in Cuba, issue on assignee of paying
under documents to older or newer (state) owners, act
admittedly w/o compensation and so in violation of int’l
law principles
Holding that cannot challenge act of govt on its own
territory, but important issues re basis of decision as not
compelled by int’l law
CANDIDATES FORMALISTIC CHOICE OF LAW,
CONSTITUTIONAL SEPARATION OF POWERS, GENERAL
SOVEREIGNTY IDEAS
SABBATINO BASIS?
PROBLEM OF SABBATINO INTERPRETATION FOR FSIA
ISSUES
1.
If Sabbatino is constitutionally compelled,
back in US constitutional questions in units 2 & 4
concerning executive vs legislature and
judiciary’s role in foreign affairs
[Off the record]
2.
If Sabbatino is about sovereignty, problem is that
now we fact the shoe on other foot (former
Belgian universal jurisdiction statute & current I
ranian domestic statute giving jurisdiction all
way back to 1950s) so that issue is what to do
when rebounds
HIDDEN ISSUES I
PROBLEM OF EXTENDED FSIA HIDES OTHER
ISSUES
1. Pattern now softening on traditional
customary law of absolute immunity for
sovereign heads of state (Pinochet)
2. If we start with scope of duties analysis,
what to do about respondeat superior &
command responsibility
3.
Coordination with diplomatic & consular
immunities
HIDDEN ISSUES II
PROBLEM OF EXTENDED FSIA HIDES OTHER ISSUES
(CONT’D)
4.
Are we really arguing about irregular warfare
with terrorism, which is more often then not
traditionally a non-state actor problem (fixation
on rogue state & terrorism sponsor perhaps,
but doing nat’l security law as torts at individual suit
level, is that a good idea?)
5.
Have newer views like FSIA post-1996 gone beyond
customary int’l law and what that means (what ever
happened to restrictive interpretation?)
[Off the record]
6.
How to do execution of judgments, etc., when in
practice executive has paid awards out of US
Treasury?