Abstract:
As of the U.S. Founding, foreign sovereign immunity rested on two premises: First, “the sovereign” was an individual, a monarch. Second, where courts had no jurisdiction, a different option was available for resolving disputes with foreign sovereigns—war. U.S. and international law now assume that they have long since abandoned this framework, but the older view of immunity continues to exert influence, casting long and warped shadows over today’s law.
This project traces the distortion and enduring application of early modern foreign sovereign immunity’s premises. Where immunity was once tied to the person of the monarch, it has now expanded to shield foreign states, many foreign entities, and their property, as well as all foreign officials. Yet contemporary immunity law continues to assume that decisionmakers can differentiate between states’ and entities’ public and private conduct, just as they could differentiate among individual monarchs’ public and private acts. Likewise, violence has remained central, but its role has changed. Where violence was once the alternative to absent jurisdiction, it has become the basis of jurisdiction’s absence. Courts have increasingly described war and other forms of violence as public, sovereign acts for which immunity is due to at least foreign states. Contemporary doctrine has thus turned sovereignty into a right to commit egregious wrongs, including torture, enslavement, and arbitrary killing. By examining legal developments from the Founding to today across in personam jurisdiction over the sovereign, in rem jurisdiction over the sovereign’s property, and in personam jurisdiction over the sovereign’s representatives, this paper explains how we got here and advocates for an escape from monarchy’s creeping shadows.