hereinafter Clark, Federal Common Law] (outlining the general debate about the federal common law and reconceptualizing several areas of the federal common law, including the federal common law of foreign relations); Jack L. This article analyzes the State Department's claim that it controls the immunity determinations of foreign officials in the US.
Foreign Official Immunity and Executive Lawmaking
In some situations this will mean very high deference to the positions of the executive. Also, the application of federal customary law by the courts themselves should be limited by the provisions of the FSIA and by the content of international law.
A Short History of Foreign Sovereign Immunity
the Court followed this reasoning by giving conclusive effect to an executive proposal of immunity. In Samantar, the Court held that the statute did not govern suits against foreign government officials; instead, those cases must be resolved under the "common law".
Executive Lawmaking and the Constitution
arguing that the President lacks any foreign affairs. legislative power as a matter of original text and history). The Court's immunity cases delegating authority to the executive branch—Hoffman and Peru—provide little discussion or defense of the basis for executive branch lawmaking, but they suggest that it rests on two grounds: first, the President is "charged with the conduct of foreign affairs",94 and secondly, the courts should not act like this.
Text and Structure: Exclusive and Independent Powers
Belmont, the Court tied its reference to the President as the nation's "sole organ" to its recognition of the Soviet Union. Foreign Policy-Based Lawmaking and History: Garamendi The Court's Broadest Decision Recognizing the President's Power to.
Foreign Policy Based Lawmaking and History
13 6 The president referred in part to Garamendi and emphasized the foreign policy importance of aligning the United States with its obligations under international law and ensuring mutual respect for the treaty, interests the court described as "simply compelling."3 7. The court distinguished cases of settlement of claims , not as a function of the president's recognition power, but rather based on a very long history of presidential settlement of claims and congressional acquiescence in that practice.'3 8 The Medellin opinion, unlike Garamendi, . The Garamendi were very specific post-war issues that the president solved through diplomacy.
Additionally, as noted above, in immunity cases—unlike Garamendi—the power asserted by the executive branch is not a one-time ability to take a major foreign policy matter out of the hands of the courts, supported by a related international agreement and the long history of compensation settlement by the President.
Congressional Authorization
- Pre-FSIA Executive Suggestions of Immunity
- Inconsistent Immunity Determinations
- Increase in Cases
- New Statutes: The TVPA, the Rediscovery of
- State Department Immunity Determinations
which describes a primary purpose of the FSIA "to transfer primary responsibility for deciding 'foreign states' claims of immunity' from the Department of State to the courts"). In Samantar itself, the Court noted the State Department's interpretation of the statute, but did not appear to attach any particular weight to it. Thus, courts and the executive branch may reach conflicting conclusions about the commercial nature of the conduct.
However, the court did not address whether this option suggests that the FSIA should not be read as an implicit endorsement of the executive suggestion system.
Functional Considerations
One problem with this argument is discussed above: if, after the enactment of the FSIA, the executive branch makes certain immunity determinations and the courts make other decisions, there is a high risk of inconsistent decisions, which over time undermine diplomatic objectives and public confidence. can undermine other countries. As State Department Legal Advisor Monroe Leigh put it: Under the executive suggestion system, the State Department becomes involved in a large number of cases where we would rather do nothing at all, but where there is enormous pressure from the foreign government to do so. The Court has left open the possibility of showing deference to the executive on a case-by-case basis when state immunity is involved, but the government apparently has not often requested such deference, and the courts have hesitated to act on this rationale confidence in solving cases.
The government's own description of how it intends to deal with immunity decisions suggests that pre-FSIA problems will still exist if the executive nomination regime is used for formal immunity decisions.
Conclusion
Federal Common Law of Foreign Relations
To some extent, the constitutional tensions in the creation of federal common law mirror those of executive branch lawmaking. A significant difference between federal common lawmaking in Sabbatino and the immunity context is the position of the executive branch. The resolution of foreign official immunity through the federal common law is also consistent with the prevailing theories of the federal common law.
The broadest theories of federal common law extend the power of the courts to the limits of federal power generally (although they do not advocate it. As argued above, however, the courts' own power to develop federal common law is not simply a reflection of the FSIA, thus limiting in some respects courts' development of federal common law in cases against foreign officials.
Sabbatino and Other Cases
Why Not International Law?
One of the most important debates in both federal customary law and foreign relations law concerns the status of customary international law as federal customary law.264 Some argue that customary international law is federal customary law, as one of the 'enclaves' of federal customary law. that arose after Erie.265 Others consider this internationally common. Although international law is likely to be relevant to the resolution of individual immunity issues, as discussed in Part III, it is unlikely that courts will apply customary international law directly. That is, they can use international law and practice as an interpretative tool in the development of customary federal law, without relying on it as a control measure.270 Immunity provisions are not a promising context for courts to rely solely on customary international law , partly due to the uncertainty surrounding some aspects of immunity law.271 In many countries – such as the United States – the immunity of foreign states has been established by law over the past fifty years, and this often makes the interaction between domestic and international law difficult. distinguishable from each other.272 Moreover, as described above, the FSIA provides the backdrop against which courts must make immunity determinations, and the law may differ in some respects from international law.
Why Not State Law?
However, state law is a poor source of law in immunity cases, highlighting the importance of intervening federal common law in this context. Miller, 2 7 7 where the court applied federal common law (also called foreign affairs standing preemption) to preempt state inheritance laws that likely affected foreign relations, 2 78 the application of federal common law to the immunity of foreign officials did not displaces the traditional sphere of state power. Cf. Clark, Federal Common Law, supra note 7, at 1308-11 (arguing that foreign state immunity is beyond state legislative jurisdiction).
Professor Goldsmith notes that "non-traditional foreign relations matters" are particularly troubling areas of the federal common law, but immunity is a traditional foreign relations issue.
Theories of Federal Common Law
Applying Federal Common Law in Immunity Cases
The analysis in the preceding part concluded that courts should apply federal common law to resolve post-Samantar claims of official immunity. This part considers how the courts should make immunity determinations under federal common law, building on the analysis in the first two parts of the article. 313 Courts must also resolve immunity questions to avoid violations or potential violations of international law.
These three constraints314 in approximate order of importance—statute, international law, deference to the executive branch on certain matters—constrain and shape how courts must develop the federal common law immunity.
Statutory Constraints
International Law
Thus, while some aspects of the FSIA may not themselves confer immunity arguably required by international law,321 Congress would not have intended—or expected—courts to deny immunity required by international law. Courts should avoid violations of international law for another reason: the basis of federal common law arises in part from the federal government's control over matters of foreign relations, which is textually vested in the political branches generally, if not the executive branch specifically. As the Court emphasized in Sabbatino, courts should refrain from creating conflicts with other nations and from resolving contested questions of international law in ways that might create foreign policy problems.322.
Back to the Executive Branch
Substantial Deference Instead of
Rather, the purpose of the statute was to limit the role of the executive, at least in cases against foreign states.326 A third potential basis for deference is the unique role of the executive in the development of customary international law. This basis for deference may be relevant to certain issues that arise in some cases, as set out below327, but does not provide the basis for deference to all immunity issues in all cases. A fourth basis for deference could be the expertise of the executive on certain factual issues or on the content of international law.328 When specific issues arise for which the executive has special expertise (perhaps the of customary international law), the court must carefully consider its views, but this too does not provide the basis for general deference to the outcome of cases or the content of the applicable law in each case.
If deference on a case-by-case basis is accepted in foreign affairs generally, it may also apply to special cases raising individual claims of immunity, but it will not necessarily apply in all such cases and will not form the basis of deference to the executive branch regarding law on immunity in cases where it did not specifically intervene.
Status-Based Immunity
Note, however, that even if customary international law develops in the immunity context, immunity is denied to individual aliens. One can therefore easily imagine a conflict between the Charming Betsy doctrine and respect for executive authority over the desirable content of customary international law in areas of potential uncertainty. Additionally, a federal statute creating the cause of action may have nothing to do with international law, or it may be expressly designed to remedy violations of international law.
In this context, where congressional and executive action point in the same direction—no immunity—courts should follow suit, even if doing so risks causing the United States to violate customary international law.
Uncertain Customary International Law
