The law and politics of foreign sovereign immunity.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Thursday, April 10, by its moderator, B. Donovan Picard of Dewey & LeBoeuf LLP, who introduced the panelists: Minelik Alemu of the Ethiopian Ministry of Foreign Affairs; Ronald Bettauer, formerly of the U.S. State Department; Ian Brownlie of Blackstone Chambers; Eileen Denza of University College London; and Jacob A. Stein of Stein, Mitchell and Mezines. * ([dagger])

This panel assessed the current state of the law pertaining to foreign sovereign immunity at both the international and various national levels and how sovereign immunity and related doctrines impact policy. Panelists explored the extent to which the UN Convention on Jurisdictional Immunities of States and Their Property reflects a consensus on the law of sovereign immunity and why states seem reluctant to ratify it. The panelists also considered how issues relating to sovereign immunity have been playing out in various national legal systems, including efforts to strip states of their immunity for jus cogens violations and unique provisions such as those related to expropriation and terrorism in the U.S. legal system. In addition, panelists considered the impact that court cases involving issues of foreign sovereign immunity have had on U.S. foreign policy and the prospects that alternatives such as state-to-state arbitrations may offer.

DEFENDANT STATE'S PERSPECTIVE

By Minelik Alemu ([double dagger])

In this presentation, I would like to focus on the difficulties that Ethiopia faces when summoned to appear before courts of other states. I suppose that the challenges we face are shared by many other developing countries in similar situations. I would therefore like to suggest that executive and judicial branches of forum states take more responsibility in ensuring respect for sovereign immunity of other states.

Ethiopia does not face any unmanageable number of cases before foreign courts. Nevertheless, the limited number of cases we have has posed challenges for us. I want briefly to discuss three of the most recent cases that Ethiopia has had to deal with before foreign courts.

  1. NATIONAL SECURITY/EXPROPRIATION

    The first of these is the Nemariam case. On June 12, 2000, six Eritrean nationals filed a lawsuit against the Government of Ethiopia and the Commercial Bank of Ethiopia ("CBE") in the U.S. District Court for the District of Columbia under the expropriation exception to immunity of the Foreign Sovereign Immunities Act, alleging deportation from Ethiopia during the country's armed conflict with Eritrea and claiming that their property, including bank accounts held at CBE, had been expropriated by the Ethiopian Government. It is noteworthy that none of the original claimants were U.S. nationals. The Government engaged a reputable U.S. law firm and filed motions for the dismissal of the case on a number of grounds: (1) the District Court lacked subject matter jurisdiction because the expropriation exception to sovereign immunity under the Foreign Sovereign Immunity Act did not apply to the case; (2) the District Court did not have personal jurisdiction over the Government of Ethiopia and CBE; (3) the act-of-state doctrine precluded the District Court from hearing the case; (4) forum non conveniens, including the ground that the Eritrea-Ethiopia Claims Commission ("EECC"), which at the time was being established in The Hague as part of the December 2000 Algiers Agreement that formally ended the conflict between Eritrea and Ethiopia, was the more appropriate forum for adjudicating the claims of the Plaintiffs; and (5) the District Court should abstain from hearing the case because there was an ongoing peace process and negotiation. The case was reviewed for seven years by the U.S. District Court and Court of Appeals for the District of Columbia and an appeal was made to but denied by the U.S. Supreme Court. It was finally dismissed on jurisdictional ground because the acts complained of did not amount to expropriation and thus the statutory exception to our sovereign immunity did not apply.

    This is a good case to illustrate problems in the application of the exceptions to sovereign immunity enacted by individual countries. Firstly, it clearly shows that the expropriation exception to sovereign immunity is prone to abuse by individual claimants. It demonstrates the reasons for excluding it from the UN Convention on Sovereign Immunity of States and their Property.

    I would argue that claims of expropriation involving foreign states is one good example of a subject that is well regulated by international law, and various more objective forums can be available.

    Secondly, the alleged actions of the Government of Ethiopia which gave cause for the case were the kind which should fall within the core group of sovereign acts. These were actions to safeguard national security in a time of war. This case should have been dismissed summarily by the Court on its own initiative or at the recommendation of the State Department as soon as the Court received it and had ascertained that the defendant was indeed a state recognized as such by the United States and that it had not waived its immunity. Instead the case was dismissed on jurisdictional grounds after seven years, numerous submissions by Ethiopia's lawyers, jurisdictional discovery, and resultant financial expenditure.

  2. ENFORCEMENT OF JUDGMENTS OF FOREIGN COURTS

    In the case of Atilla Yildrim v. the Federal Democratic Republic of Ethiopia, August 14, 2007, the Government of Ethiopia was recently summoned by a District Court of Frankfurt, Frankfurt am Main, in the Federal Republic of Germany. The plaintiff is a Turkish national claiming for money he alleged that the Government owed him in connection with a failed investment in Ethiopia. The motion before the Court is the enforcement of the Turkish State Act ordering the payment of the alleged sum in the territory of the Federal Republic of Germany. To support the enforcement of his foreign title of execution, the plaintiff presented a letter claiming that the Government has acknowledged that it owes him around eight million dollars and that he had a decision in his favour before a court in Turkey on this matter. Plaintiff's position is that the German court has jurisdiction over Ethiopia on the basis that the plaintiff has a business in Germany and the Government of Ethiopia operates Ethiopian Airlines, which flies from Addis Ababa to Frankfurt am Main three times a week. The Court summons was served to the Ethiopian Embassy in Berlin.

    Ethiopia lodged an objection with the German Ministry of Foreign Affairs pointing out that the case should be dismissed because of Ethiopia's sovereign immunity. Ethiopia also has communicated to the Ministry its well-founded suspicion that the document submitted to the Court by the plaintiff is a forgery. On January 14, 2008, the German Foreign Ministry stated that the summons should now be expected via the German Embassy in Addis Ababa but "... that immunity of states can only be claimed for sovereign acts of countries (acta jure imperi)." As a result, Ethiopia has been forced to engage a German law firm to handle the case. In effect, the Ministry is saying that it is for Court to decide if Ethiopia's objections constitute sovereign acts.

    This is quite simply a frivolous case where forgery is alleged, and the jurisdictional link is very remote. The unnecessary cost to Ethiopia and possible complications that might arise in the bilateral relations could have been avoided by the dismissal of the case on several grounds related to sovereign immunity at the outset by the Court itself on the advice of its own Foreign Ministry.

  3. ARREST OF FOREIGN CITIZEN

    The third example is the case of Bashir Makhtal v. the Federal Democratic Republic of Ethiopia and Wagiro Gabayo and Mikil Commissioner Taadese Mesareti (These names are unknown and have a close resemblance with the names of the Head of the Ethiopian Federal Police Commission and his deputy), before the Ontario Superior Court of Justice in Canada. This is a case instituted by a person claiming to be a Canadian national of Ethiopian origin and alleging mistreatment while under custody in Ethiopia. The summons this time was served through the Embassy of Canada in Addis Ababa with the advice that we should hire a lawyer. The Ethiopian Ministry of Foreign Affairs has written to the Canadian Ministry of Foreign Affairs stating that the arrest of an individual in a leadership position in a terrorist organization clearly relates to a sovereign action and therefore the case should be dismissed. The Ministry is hoping that this case will be dismissed without forcing Ethiopia to engage a law firm and incur expenditure that could otherwise be spent on more vital projects in the country's fight against poverty.

  4. RESPONSIBILITY OF THE FORUM STATE

    We do write to the foreign offices of the forum states because we believe that it is the state as such that has the international obligation to ensure that a foreign state is not brought before its courts unnecessarily. The law of sovereign immunity should protect states sued in a foreign court from moving to engage a lawyer and spending a significant amount of money on a case that ultimately is likely to be rejected by the court. The current practice, however, forces us to take measures to protect our interests. It is my submission that Foreign Offices of forum states should have the competence and the obligation, once they receive objections from a foreign state, to advise the courts of their determination whether the foreign state's objections are valid or if the case falls under one of the agreed exceptions to sovereign immunity. More importantly, consistent with Article 6 sub-article 1 of the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004, every state has the obligation to make sure that the immunity of a foreign state is upheld and this...

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