examination of constitutional objections to the federal common law on foreign relations); Notes and Commentary, Federal Common Law and Article III: A Jurisdictional Approach to Erie, 74 YALE L.J. Goldsmith noted that the Court may be moving toward the abolition of the federal common law for foreign relations, 34 citing W.S. The Supreme Court has provided a statutory basis for another important area of the federal common law of foreign relations: customary international law as applied.
52 Lower courts have concluded that customary international law is itself federal common law and that ATS cases thus derive from federal law. The scope of the federal common law of foreign relations has shrunk in most areas over the past several decades, but immunity issues are an exception. The common law law of state doctrine is alive and well in the lower courts as well.
A N U NRECOGNIZABLE R ECOGNITION P OWER
78 In its most recent reference to the law of state doctrine, the Court did not mention Sabbatino or the federal common law, but instead described the doctrine in terms of the deference courts might reflect on the acts of foreign sovereigns committed within their own territory. , which may be uncertain- about its basis in federal common law. They provide a different basis for the application of both the individual immunity and the act of state doctrines. If correct, their argument would constitutionalize both doctrines as part of the federal government's power over recognition.
This would resolve formalist objections to the doctrines in their traditional common law form, but without concluding that state law must therefore apply, an approach with potentially broad appeal. It involves the creation of an entirely new and significant constitutional power related to recognition that has no basis in the text of the Constitution and is contrary to numerous leading court decisions. It also mischaracterizes the task of applying and interpreting customary international law in cases of immunity and state action.
Recognition is at the heart of their argument, but the authors do not provide a comprehensive analysis of its constitutional basis nor its relationship to it. 87 From the implied power to recognize a foreign state, Bellia and Clark conclude that recognition includes a set of additional powers, those related to sovereign rights and that may be derived from the act of recognition, such as the act of doctrine and immunity state. 88 And as a further consequence, neither the states nor the courts (state or federal) can interfere with the rights derived from recognition. In fact, they create a new constitutional category: the rights that sometimes follow from recognition.
The legal rights that may flow from recognition—immunity and state action—are not part of the power of recognition itself, contrary to Bellia and Clark's view. 90 Indeed, these doctrines have a distinct constitutional basis, one that is not exclusive to the federal political branches, as demonstrated by both recent cases discussed in Part A and mid-twentieth-century cases related to the recognition of the Soviet Union. in part B.
RECOGNITION AND ZIVOTOFKSY V. KERRY
The Supreme Court examined the source of congressional authority over foreign sovereign immunity in Central Bank of Nigeria Verlinden B.V. without even mentioning the recognition,98 instead reasoning that the authority rested on congressional authority "over foreign trade and foreign relations." 99 Congressional authority over the doctrine of state act is apparently also not based on the power of recognition, but instead on power over foreign commerce.100 Not only is constitutional power over the doctrine of state act and immunity not the same as the power of recognition, nor is it exclusive to federal political branches. The power over state act and immunity doctrines derives, at least in part, from the power to regulate commerce with foreign countries, which is not the exclusive domain of the political branches or even of the federal government.
The Foreign Commerce Clause allows Congress to supersede state laws on matters affecting interstate commerce, but it is not exclusive. States are free to legislate on issues related to foreign commerce unless Congress chooses to act to preempt state laws. 101 If recognition is exclusive to the President as Zivotofsky held, and if the act of state doctrine and immunity is part of the recognition power as Bellia and Clark assert, then it follows that presidential power over those doctrines is also exclusive, and the federal statutes which govern the law of state doctrine and foreign state immunity are therefore all unconstitutional.
SLOANE, FOREIGN AFFAIRS FEDERALISM: THE MYTH OF NATIONAL EXCLUSIVENESS describing the Dormant Foreign Commerce Clause). held that a California ad valorem tax violated the Dormant Foreign Commerce Clause if the tax was applied to Japanese cargo containers registered in Japan and used exclusively in foreign commerce). They argue that the "political branches" have exclusive power over rights arising from recognition, barring both state and federal courts from acting on those rights.
103 However, as we have seen, the rights that flow from recognition do not flow directly from recognition, nor are they exclusive to the federal government. Bellia and Clark base key parts of their argument on federal exclusivity, including the contention that states are constitutionally obligated to respect the rights of recognized nations and that courts can apply those rights to preempt federal law without violating the Supremacy Clause because the Constitution itself implements preemption of state law.
RECOGNITION OF THE SOVIET UNION
C OURTS AND THE R IGHTS T HAT M AY F OLLOW FROM R ECOGNITION
Bellia and Clark's description of the role of courts is inconsistent with what courts actually do when deciding common law immunity and state questions. The state doctrine, for example, does not follow as the enforcement or application of customary international law. Another historical treatment of the period notes that courts often did not distinguish between the immunity of foreign states and the immunity of local authorities, 153 a point that undermines the claim that immunity follows directly from the recognition of a foreign state as a function of customary international law.
Furthermore, as foreign states became more economically active and powerful at the beginning of the twentieth century, courts were called upon to resolve many new issues related to the immunity of foreign sovereigns when engaging in commercial conduct. More specifically, the judicial seizure of the vessel by a friendly foreign state is such a serious challenge to its dignity, and may affect our friendly relations with it, that courts are required to set aside the executive determination that the vessel is immune. accept and follow. "). The transformation of immunity law in the 1930s and 1940s no more supports Bellia and Clark's position than nineteenth-century immunity practices.
168 It aimed to resolve many issues that had long been uncertain in both international and United States law.169 It also aimed to end the practice of deferring executive branch decisions on immunity.170. Bellia and Clark's argument works best for head-of-state immunity, which is essentially uncontested under international law. See RESTATEMENT (FOURTH) OF THE UNITED STATES FOREIGN RELATIONS LAW: SOVEREIGN IMMUNITY.
See RESTATEMENT (FOURTH) OF THE UNITED STATES FOREIGN RELATIONS LAW: SOVEREIGN IMMUNITY § 451, reporter's note 4 (AM. LAW INST., forthcoming 2018) (on file with author). Bellia and Clark argue that customary international law applies as a function of the recognizing power.
T HE F UTURE ( AND A P ARTIAL D EFENSE ) OF THE F EDERAL C OMMON L AW
187 Cases involving the act of state doctrine or the immunity of foreign officials and those that raise Bancec issues do not involve federal common law causes of action; federal courts have subject matter jurisdiction based on diversity or federal law such as the Foreign Sovereign Immunities Act. Lower courts have occasionally reasoned or assumed that the act of state doctrine alone, or the mere issue of individual official immunity or foreign relations issues, generally confers subject matter jurisdiction on the federal courts. Some of these lower court cases find subject matter jurisdiction over state affairs based on issues of "significant foreign policy" raised by the case or similar reasoning.189 These cases are based on unpersuasive exceptional grounds and have become increasingly rare over the past decade. .
See Dapo Akande & Sangeeta Shah, Immunities of State Officials, International Crimes and Foreign Domestic Courts, 21 EUR. The same reasoning applies at least to the act of state doctrine, which is closely related to foreign sovereign immunity. 214 The Court has essentially limited the act of state doctrine, however, 215 minimizing opportunities for conflict. 216 The first decision and the very limited scope of the doctrine today provide better justifications for joint lawmaking in this area, as does the adoption of Congress's implied act of state doctrine through the FSIA itself and the Hickenlooper Amendment.
Finally, separation of powers objections to federal common law, namely that judges may not preside over legislation219, are minimal in state and immunity-related contexts. See, for example, Ifeanyi Achebe, The Act of State Doctrine and Foreign Sovereign Immunities Act of 1976: Can They Coexist?, 13 MD. Brower, II, The Taming of the Shrew: May the Law of State Doctrine and Foreign Sovereign Immunity Eat and Drink as Friends?, 20 HAMLINE L.
Unsurprisingly, lawyers and scholars initially expressed concern that the act of state doctrine might eat up the FSIA's commercial exception. which describes various legislative attempts to limit the act of state doctrine, including the enactment of the Hickenlooper Amendment).
