Current U.S. foreign sovereign immunity doctrine makes a mess of sovereignty. In the ways they classify certain conduct as sovereign, the Foreign Sovereign Immunities Act (FSIA) and associated case law paint a troubling image of sovereignty. This image of sovereignty appears to entail the right to abuse lawful authority and act outside it, the right to violate international law, the right to commit terrorism if you have the right friends, and specifically the rights to torture, enslave, assassinate, rob, abduct, harass, and more. No wonder so many have been eager to jettison the concept of sovereignty from domestic and international law.

This Article investigates the close relationship between sovereignty and illegal conduct in the FSIA and judicial immunity decisions, and it argues for urgent reform. The set of exceptions to foreign sovereign immunity in U.S. law can be read in two ways—as either broadly defining categories of sovereign and non-sovereign activity, or as simply defining categories of immune and non-immune activity. The first approach takes seriously the restrictive theory’s division between acta iure imperii, for which states are entitled to immunity, and acta iure gestionis, for which they are not. This approach to the FSIA, however, muddles sovereignty and often associates it with illegality. Abuses of lawful authority, for example, are deemed inherently sovereign, while violations of international law, ultra vires acts, and terrorism all are deemed both sovereign and non-sovereign, depending on the relevant exception. Even if we view the statute as simply designating categories of immune and non-immune conduct, though, we cannot escape immunity law’s expressive content about sovereignty. Courts continue to rely in the FSIA’s commercial activity exception on the notion that commercial activity can be distinguished from sovereign activity, meaning courts are in the business of defining the latter as well as the former. While the previous reading made sovereignty a muddle, this reading makes it a monster. In the context of this exception’s jurisprudence alone, all illegal conduct is necessarily sovereign—what it is to be sovereign, at least in part, is to abuse.

U.S. law should not advance such an ugly image of sovereignty. At a minimum, portraying sovereignty as intertwined with illegality rightly invites criticism of sovereignty and calls to abandon it. It also contributes to the contemporary perception that sovereignty itself entails only rights, when it should always have been understood as constituted instead by duties to citizens, foreigners, and the international community. Moreover, construing sovereignty as U.S. law currently does prevents human rights victims from even having their cases heard in U.S. court, let alone receiving favorable verdicts.

Nor is this approach to sovereignty a necessary component of foreign sovereign immunity. A range of existing and novel proposals would decouple sovereignty from illegality in U.S. law. Whatever the ultimate path forward, we should reject the image of sovereignty that current doctrine offers. Sovereignty—the authority of states and a basic building block of law—need not and should not be so monstrous.