Changing the international law of sovereign immunity through national decisions.

• Author: Damrosch, Lori Fisler
• Position: Foreign State Immunity at Home and Abroad

ABSTRACT

The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate changes in the international law of sovereign immunity, as can innovative lawsuits prompting national courts to reexamine theories of immunity. The International Court of Justice should refrain from interfering with the ability of national institutions to provide remedies for wrongful conduct of the type involved in Germany's suit against Italy.

TABLE OF CONTENTS I. THE INTERNATIONAL LAW OF SOVEREIGN IMMUNITY AS LAW II. THE UN CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES III. THE FSIA AND OTHER NATIONAL LAWS: CATALYSTS FOR CHANGE IN INTERNATIONAL LAW IV. INNOVATIVE SUITS IN NATIONAL COURTS V. THE ICJ CASE AND ITS POTENTIAL RECEPTION IN ITALY CONCLUSION This essay takes up several aspects of the complementary roles of national and international courts, as well as national legislatures (in the absence of an international legislature as such), with respect to the progressive development of the customary international law of sovereign immunity. The following questions are addressed:

(1) Is there an international law of sovereign immunity? Assuming an affirmative answer, what gives it its quality as law, rather than mere grace, comity, or usage? What are the sources of that body of international law as law?

(2) What is the relevance of the United Nations Convention on Jurisdictional Immunities of States and Their Property for today's international law of sovereign immunity? (1) To date, the UN Convention has attracted little support as an international treaty, and thus one must ask whether it has any significance as evidence of an evolving customary international law of sovereign immunity.

(3) Has national legislation, such as the U.S. Foreign Sovereign Immunities Act (FSIA), (2) made a useful contribution in staking out claims in contested domains, such as the expropriation exception or the terrorist state exception to immunity?

(4) How do we assess innovative approaches by litigants who bring suits against foreign states in national courts on novel theories? How do we assess the rulings of national courts, such as those in Italy, that have taken the first steps to decide unprecedented questions? Are these litigation strategies and judicial decisions at the national level beginning to produce a change in the existing landscape of customary international law? If the law is indeed changing, are the trajectories of change taking the law in salutary directions?

(5) Now that Germany has asked the International Court of Justice (ICJ) to put a stop to Italy's innovations, (3) is an ICJ ruling on the matter likely to curb such developments in customary international law, allow them to continue, or potentially even encourage them? How might such a ruling be received within the Italian legal system?

1. THE INTERNATIONAL LAW OF SOVEREIGN IMMUNITY AS LAW

   Is there an international law of sovereign immunity? If so, where did it originate? How can we identify it today? How might it change?

   A bit of confusion about the "law" in sovereign immunity law comes from language used by the U.S. Supreme Court in many of its sovereign immunity cases: that the decision of one state to grant immunity to another is a matter of "grace and comity," from which one might infer, incorrectly in my view, that international law is not necessarily relevant to the matter. This notion originated with language in the Supreme Court's first, much-quoted sovereign immunity decision, The Schooner Exchange v. McFaddon. (4) Written by Chief Justice John Marshall, this opinion emphasized that the absolute territorial sovereignty of each state "is susceptible of no limitation not imposed by itself' and treated comity as the basis for finding an implied waiver of jurisdiction when a foreign prince or public armed ship enters the territory with the consent of the territorial sovereign. (5) In the FSIA era, the Court's sovereign immunity cases cite The Schooner Exchange without elaboration, for the proposition that immunity "is a matter of grace and comity rather than a constitutional requirement," and international law is not even mentioned as a potentially relevant source of law. (6) Soon after the Court's Austria v. Altmann decision reiterated this approach, Gerald Neuman wrote an insightful article aptly titled "The Abiding Significance of Law in Foreign Relations," in which he observed that the Court in Altmann focused so strongly on the FSIA "that it appeared to have lost sight of the international law lying behind it." (7) Justice Stevens's majority opinion quotes from the FSIA but omits its reference to international law, "and one could read the entire opinion without intuiting that the immunity of foreign states was a subject addressed by international law." (8) Most recently, in Samantar v. Yousuf, the Court recapitulated the "grace and comity" point with reference to these cases. (9) After holding (correctly in my view) that the FSIA does not apply to individuals, the Court essentially ignored international law in concluding that federal courts are to decide such cases on the basis of federal common law. (10)

   To conclude on the contrast between "grace and comity" on the one hand and international law on the other, I believe that the Court would have been on firmer ground if its Altmann and Samantar decisions had acknowledged that international law--customary international law--is part of the relevant matrix of law that federal courts should consider, either in construing a statute enacted against the background of international law (as was the case with the FSIA) (11) or in addressing the nature of the sources that federal courts should consult when ruling on claims of immunity outside of the four corners of the statute. (12) To ignore the international law of immunity in national judicial decisions on immunity is to deprive those decisions of their secure foundations in law, and also undercuts the authority of the domestic court in contributing to the development of the body of custom that constitutes international law. (13)

   On the assumption that the present audience does not need further persuasion that our subject is indeed one about which international law does have something to say, (14) I turn now to the UN Convention on Jurisdictional Immunities of States (the Convention) as potentially relevant evidence of the customary international law of state immunity.

2. THE UN CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES

   The Convention, a relatively new instrument finalized in 2004, is the culmination of decades of on-again, off-again efforts by the United Nations International Law Commission (ILC) to bridge formidable cleavages during a period of rapid changes in state practice concerning sovereign immunity. (15) As its main features have been covered elsewhere in this symposium, (16) I will confine myself here to aspects bearing on its usefulness as evidence of international custom.

   Writing about the Convention soon after it was opened for signature, David Stewart predicted "rapid adoption by a considerable number of states currently lacking domestic statutes on sovereign immunity." (17) In the ensuing six years, that prediction has not yet come true. Not only is the Convention not yet in force, but it has had relatively few adoptions to date: only twenty-eight states have signed and only eleven have ratified or acceded as of the symposium's date. (18) These numbers fall far short of what is typically considered reliable evidence that a treaty reflects customary international law binding on nonparties to the treaty. (19)

   In some respects, to be sure, the fact that the ILC was able to reach agreement on certain formulations of rules of foreign state immunity could provide modest support for the proposition that states believe that the rules so formulated correspond to the requirements of customary international law (the opinio juris component in classic theories of international law). (20) However, in order to satisfy the expectations of a serious inquiry into the status of a putative rule of customary international law, one would also need to show that states follow the same rules in their patterns of practice. This may be true for some of the provisions of the Convention, but probably only for those that represented the lowest common denominator of state practice at the time the Convention was negotiated, such as acceptance that a state is not entitled to immunity for commercial transactions as regards disputes falling within the forum's jurisdiction under applicable rules of private international law. (21) It is doubtful that the same could be said of all the Convention's provisions, many of which appear to represent negotiated compromises among divergent trends in state practice in the years leading up to the final agreement. (22)

   Most significantly, it is implausible that a treaty negotiated in full awareness that it was not congruent with existing immunity law and practice of leading states could be understood as establishing new rules of customary international law at odds with the FSIA and judicial decisions in the United States and other countries. Unless and until such states adopt the Convention's provisions as treaty obligations or take action within their own legal systems to embrace the new rules, they would be free not only to continue their...