International Law and Foreign Sovereign Immunity

AuthorErnesto Sanchez
Pages3-20
3
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§ 1.1 INTRODUCTION
e concept of foreign sovereign immunity again qualies as a matter of international law.
According to the Restatement of the Foreign Relations Law of the United States (“Restate-
ment”), international law governs states’ rights and duties in regard to each other and states’
dealings with private citizens of other states.1 is denition reects how national laws imple-
ment foreign sovereign immunity domestically, but also how foreign sovereign immunity com-
prises an area of international law—private international law—that addresses domestic disputes
with a factual nexus to foreign states (e.g., a case concerning a contract between parties from
dierent countries or governed by foreign law), which can raise conicts of law (i.e., issues of
whether the law of a forum or implicated foreign jurisdiction governs a particular issue in the
case, if not the case in its entirety).2
§ 1.2 HOW INTERNATIONAL LAW WORKS
Legal academics and practitioners worldwide tend to view Article 38(1) of the Statute of the
International Court of Justice (ICJ Statute), the compendium of rules governing the court’s
proceedings, as the most authoritative specication of international law’s sources.3 ese sources
consist of:
1) International conventions (e.g., treaties) establishing rules that signatory or ratifying
states expressly recognize;4
2) International custom evidencing general state practice accepted as law;5 and
3) General principles of law recognized by “civilized nations.”6
Judicial decisions (e.g., international judicial and arbitral decisions, national judicial decisions)
and the “teachings of the most highly qualied publicists [i.e., academics, legal experts] of the
1. R §  (dening international law); see also L at 5 (same); M at 3 (same). Some legal
scholars, such as the late Judge Philip C. Jessup of the International Court of Justice (ICJ), use a similarly expansive
denition for the term “transnational law”—a hybrid of international and domestic law comprised of “all law which
regulates actions or events that transcend national frontiers.” P C. J, T L  () (publica-
tion of 1956 Storrs Lectures given at Yale University Law School).
2. See R (S)  C  L §  (referring to “that part of the law of each state which
determines what eect is given to the fact that the case may have a signicant relationship to more than one state.”).
3. See, e.g., R § , rptr’s. nt.  (drawing upon Article 38(1) to dene international law); L at 5
(same); M at 3 (same).
4. ICJ Statute, art. 38(1)(a).
5. Id. at (b).
6. Id. at (c).
INTER N ATIO NAL L AW A N D FO R EIG N
SOV E R EI GN I MM U N IT Y
ForSovImmunAct_book.indb 3 4/11/13 3:31 PM
T F S I  A D 
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various nations” constitute “subsidiary means” for determining international law.7 at is, they
are not sources of law, but potential evidence, that some tenet qualies as international law. Very
signicantly, decisions of the ICJ and other international judicial tribunals only bind parties to
the particular case they address and have no stare decisis eect.8
Largely decentralized, the international legal system lacks the sorts of integrated enforce-
ment mechanisms inherent in national legal systems.9 ere is, in sum, no world government—
no global executive, legislature, judiciary, police, or military force—that can take action against
states that violate treaty obligations or other international law. Former ICJ president Stephen
M. Schwebel has acknowledged, for example, that the ICJ is the primary judicial organ of the
United Nations (U.N.), “not the supreme court of the world.”10 Some theorists and policymak-
ers have consequently questioned whether international law even qualies as law at all.11 Indeed,
even the late Louis Henkin, onetime president of the American Society of International Law,
impliedly acknowledged this problem in stating that “[i]t is probably the case that almost all
nations observe almost all principles of international law and almost all of their obligations almost
all of the time.”12
International law instead stems from states’ own development, in order to achieve common
objectives, of tenets or norms to which they bind themselves. e ICJ Statute demonstrates
that states enter into treaties akin to willful contractual relationships that establish rights and
7. Id. at (d).
8. See, e.g., ICJ Statute, art. 59 (“e decision of the Court has no binding force except between the parties and in
respect of that particular case.”).
9. C.f., e.g., J.L . B, T L  N: A I   I L  P 101
(6th ed. 1963) (1928) (asserting that international law’s enforcement mechanisms are “precarious in their operation”);
L H, H N B: L  F P 24 (2d. ed. 1979) (“ere is no police system [in
international law] whose pervasive presence might deter violation.”).
10. Stephen M. Schwebel, e Reality of International Adjudication and Arbitration, 12 W J. I’ L. 
D R 359, 362 (2004).
11. See, e.g., John R. Bolton (former U.S. Under Secretary of State for Arms Control and Ambassador to the U.N.),
Is ere Really “Law” in International Aairs?, 10 T’ L. & C. P. 1, 48 (2000) (“International
law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything
else is simply theology and superstition masquerading as law.”); J A, T P  J
D 142, 200-201 (H.L.A. Hart ed. 1954) (1832) (asserting that true law consisted of a rule issued by an
authority backed by a potential sanction); R H. B, C V: T W R  J
21 (2003) (“International law is not law but politics.”); H.L.A. H, T C  L 93, 220 (2d ed. 1994)
(1961) (“Disputes as to whether an admitted rule has or has not been violated will always occur . . . if there is no agency
specially empowered to ascertain nally, and authoritatively, the fact of violation . . . One of the most persistent sources
of perplexity about the obligatory character of international law has been the diculty felt in accepting or explaining
the fact that a state which is sovereign may also be ‘bound’ by, or have an obligation under, international law.”); Jack L.
Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 H. L. R.
1791, 1804-1805 (2009) (“[T]here is no formula or agreed-upon set of principles for reconciling [potentially relevant
sources of customary international law]. Nor is there any authoritative institutional mechanism—the equivalent of a
legislature or supreme court—for denitively resolving [customary international law’s] content. e unsurprising result
is frequent and persistent contestation over the content of customary international law.”); c.f. also J C G,
T N  S   L  () (“On no subject of human interest, except theology, has there been
so much loose writing and nebulous speculation as on International Law.”); A O, P-
 N  I L ,  () (contending that a lack of necessary consensus among states
reected absence of customary international law concerning foreign sovereign immunity).
12. H, supra note 9, at 47.
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