The Foreign Sovereign Immunities Act (“FSIA”) is the primary domestic statute codifying foreign sovereign immunity—the immunity that foreign nations enjoy in U.S. courts. With scattered exceptions, questions involving foreign immunity outside of FSIA are matters of federal common law. Those questions include foreign-official immunity, whose importance has increased dramatically as the international travel of foreign officials has expanded and as calls have grown for individual accountability of foreign officials. Yet the Supreme Court has declined to prescribe clear contours of the common-law doctrine of foreign-official immunity.
In recent years, the executive branch has taken the position that its views on whether immunity should apply in a particular case are binding on courts. In a new paper called “Between Law and Diplomacy: The Conundrum of Common Law Immunity,” forthcoming in Georgia Law Review, my colleague Chimène Keitner challenges the historical support for that position. Unearthing new evidence of Founding Era cases, carefully emphasizing the overlooked context of decisions from the Marshall Court in the 1800s, and showing how historical practice has informed contemporary ideas, Professor Keitner documents the nuance, complexity, and evolution of common-law immunity.
Professor Keitner is an engrossing raconteur. An illustration is the 1790s dispute between Americans John Parnell and David Stewart, who owned The Atlantic, and British privateer Henry Sinclair, who seized The Atlantic under the legal authority of the High Court of Admiralty of England. High officials on both sides of the Atlantic were involved: British Foreign Secretary William Grenville, British Minister to the United States Robert Liston, U.S. Secretary of State Timothy Pickering, and U.S. Attorney General Charles Lee. Cases like Sinclair and others from the early days of the United States (including the fascinating case of the Cassius) reveal the executive branch’s reluctance, based on the separation of powers, to instruct U.S. courts on the propriety of foreign immunity. That early reluctance later gave way to an understanding that lengthy litigation could damage foreign relations, an understanding that prompted U.S. officials to begin making nonbinding “suggestions” to federal courts regarding immunity for foreign officials. Professor Keitner uses original research to elicit not only the decisionmaking of the courts but also the personal and political machinations that took place behind the scenes.
Woven throughout the case stories are other early seeds of foreign immunity’s roots, including the distinctions between status-based and conduct-based immunity, public ministers and consuls, and absolute and restrictive theories of immunity. Professor Keitner does not mean to untangle these strands completely; history has left them tangled. But she does mean to enrich our understanding of them through the historical record. Her paper shows that that historical record has much to teach present doctrine, especially the degree of judicial deference owed to present-day suggestions of immunity by the executive branch.