Abstract:
At one time, discussions of sovereign immunity explicitly assumed that “the sovereign” was in fact an individual, a monarch. U.S. and international law now take for granted that they have long since abandoned this framework, but it continues to cast shadows on both foreign official and foreign state immunity—including in pernicious ways. Three central elements from the foreign monarchs era of immunity remain salient today: dignity, divisibility, and violence. Legal and political works from the sixteenth to the nineteenth centuries assume that monarchs are entitled to immunity from foreign jurisdiction by virtue of the dignity of their position, that a monarch’s private acts are distinguishable from their public acts, and that there is an essential relationship between a monarch’s immunity from foreign jurisdiction and their capacity to engage in violence, especially through interstate war. Contemporary legal opinions in foreign official and state immunity often reiterate dignity language, obscuring policy considerations more relevant to today but otherwise having little practical impact. Divisibility and violence have become far more dangerous, however. This is especially so in the domain of foreign state immunity, where the distinction between public and private acts cannot be cleanly made and where the association with violence has turned sovereignty into a right to do egregious wrongs.