SOVEREIGN IMMUNITIES & FOREIGN SOVEREIGN IMMUNITIES ACT

1. SOVEREIGN IMMUNITIES & FOREIGN SOVEREIGN IMMUNITIES ACT Prof David K. Linnan USC LAW # 783 Unit 15

2. 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)

3. 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)

4. 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

5. LIMITATIONS THEORIES OF SOVEREIGN IMMUNITY 1. Traditional absolute (Schooner Exchange) 2. Modern restrictive form (Dralle)

6. 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)

7. 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

8. 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

9. 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 non- jury 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))

10. 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]

11. 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)

12. 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

13. 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

14. 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

15. 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

16. 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?