Sovereign Immunity, the Act of State Doctrine, and Human Rights

• Pages: 79-102
• Author: George A. Rutherglen

79

Chapter IV

SOVEREIGN IMMUNITY, THE ACT

OF STATE DOCTRINE, AND

HUMAN RIGHTS

As modern nation states have expanded the range of their

activities, they have exposed themselves to a wider range of lawsuits

and thus have greater occasion to invoke the defense of sovereign

immunity and the act of state doctrine. The commercial activities of

sovereign nations led to the first transformation of the law of

sovereign immunity. The argument gradually gained force that

sovereign states and their instrumentalities should be treated like

other actors in the commercial world. That position, called “the

restrictive theory of sovereign immunity,” eventually was codified in

the Foreign Sovereign Immunities Act (FSIA).

1

During the same

period, the current version of the act of state doctrine became part of

federal law. This doctrine recognizes the legitimacy of official acts of

foreign sovereigns according to their own laws within their own

territory, even if those acts violate international law. The act of state

doctrine, like foreign sovereign immunity, has narrowed in scope

since the leading modern decision on the subject, Banco Nacional De

Cuba v. Sabbatino,

2

which involved expropriation of property,

allegedly in violation of international law. Although the violation

involved property rights, the presence of international law points to

the second transformation of sovereign immunity in the modern era:

the expanded protection of human rights. Decisions under the Alien

Tort Statute, discussed in previous chapters, exemplify this trend. If

claims are brought against foreign nations or their instrumentalities,

they must fall under an exception in the FSIA, which has special

provisions for human rights violations. These provisions, although

usually narrow in scope, have accumulated in number and

significance as human rights violations have been more widely

publicized and condemned. If recent developments are any guide,

current trends favor further protection for human rights.

Human rights, like commercial activity, reveal how the modern

understanding of sovereignty has expanded the dimensions of

international civil litigation. As the power of sovereign nations has

grown, their immunity from suit has diminished. Sovereignty has

changed from the absolute terms in which it was previously

1

94 Pub. L. No. 583, 90 Stat. 2891 (1976) (codified at 28 U.S.C. §§ 1330, 1332,

1391(f), 1441(d), and 1602–11 (2018)) [hereinafter FSIA].

2

376 U.S. 398 (1964).

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SOVEREIGN IMMUNITY, THE ACT OF STATE

DOCTRINE, AND HUMAN RIGHTS

Ch. IV

conceived, as the exclusive power of a single government within the

territory it controlled, to a highly qualified and complicated issue

which opens the door to claims against government officials for

human rights violations committed against the government’s own

people within its own boundaries. In American law, the same trends

have become familiar in domestic government litigation, where

contract, tort, and civil rights claims against the government and

government officials have spawned intricate procedures and

complicated forms of immunity. International litigation against

foreign sovereigns and foreign officials has initiated a parallel

process of doctrinal elaboration, which has only begun to address all

the implications of any program of effective enforcement of human

rights.

The movement from enforcement of commercial and property

rights, which dominate the terms of the FSIA, to enforcement of

human rights also resembles the pattern of development of American

law, particularly with respect to constitutional rights. Early in the

nation’s history, most constitutional claims protected rights to

property and contract, and only in the twentieth century d id

protection extend to other constitutional rights, such as freedom of

speech, religion, and privacy. Restraints on government that

protected property and commercial interests only later spread to a

range of individual rights that everyone could enjoy. Those who could

initially afford the expense of taking on the government paved the

way through legal doctrine and procedure for those with fewer

resources. In the process, constitutional rights expanded accordingly.

Litigation under the FSIA exhibits the same trend, from commercial

disputes dealing with foreign sovereigns and their instrumentalities

to human rights claims recognized as a matter of tort or statutory

law. The latter have not yet developed into a full-fledged system of

effective individual rights, a development which must await

international agreements and initiatives undertaken by the

executive and legislative branches of government. Most of the cases

in this chapter concern commercial and property disputes, and

relatively few concern human rights, yet both types of cases are

intimately connected by the legal doctrine common to both of them.

Existing law recognizes the potential for broad protection of human

rights, even if it has yet to be realized.

A.The Restrictive Theory of Foreign Sovereign

Immunity

Foreign sovereigns acquired immunity from the jurisdiction of

American courts early in the nineteenth century in The Schooner

Exchange v. McFadden.

3

That decision brought the customary

3

11 U.S. (7 Cranch) 116 (1812).