Immunities and the Development of International Law

John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests.

The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We don’t usually want American courts adjudicating disputes between Chinese citizens and the Chinese government, or between American citizens and the Chinese government, even when it is clear that the Chinese government has injured the citizen in question, in a manner that violates American law or international law. There are, of course, exceptions, but the immunity rules remain generous.

Well, why, anyway? The answer is usually put in terms of fear of offending foreign sovereigns, but governments offend foreign governments all the time, and a general concern about offending foreign sovereigns is too broad to explain why there are exceptions to the immunities rules. Another standard answer is that courts should avoid becoming “entangled” in foreign relations, but again courts become entangled in foreign relations, at least potentially, whenever a foreign citizen is involved in litigation, in whatever capacity, and no one thinks that courts should refrain from taking jurisdiction in all cases that involve foreigners, or that could touch on foreign interests—indeed, courts have an obligation to take jurisdiction when foreigners are plaintiffs and they have a valid claim under American law.

The answer, as it so often does in international law, lies in the notion of reciprocity. The United States sees advantages in subjecting foreign governments (officials, instrumentalities, etc.) to American law and American judicial process in many situations, but also prefers that the American government (officials, instrumentalities, etc.) be immune from foreign law and foreign judicial process in many situations. The trick has been to determine areas of overlapping interest, where reciprocal acquiescence in foreign judicial process is in the joint interest of the states in question. Commercial activity turns out to be an obvious such area: commercial norms (these days) are relatively uniform, and foreign corporations would have trouble entering contracts if they were not subject to local judicial process. But in all the areas where governments disagree as a matter of policy, the infliction of judicial process on a foreign leader because he violates domestic norms embodied in domestic law, is conceptually no different from applying economic sanctions, diplomatic pressure, and so forth, against states whose behavior we do not like—subtle and difficult tasks for which the courts, applying general domestic law, are unsuited.

An implication of this is that, to the extent that domestic litigation implicates foreign interests, courts should be highly sensitive to the expressed views of the executive branch, which can take account of—as John notes—the risk to American interests if the foreign state retaliates either in kind, by subjecting Americans to judicial process who would formerly have been immune, or along some other dimension of international cooperation. This is true, regardless of whether the FSIA or some other immunity rule applies, and even regardless of whether there is a foreign defendant. It needs to be acknowledged that this weakens the rule of law. If the executive branch has a large role in litigation that affects foreign interests, outcomes will reflect policy and political considerations to a greater extent then if it does not. But this is the price one needs to pay in order to conduct foreign relations in a sensible manner. Courts have no ability to evaluate whether taking jurisdiction over a foreign sovereign or foreign official in a given case is likely to make Americans more or less vulnerable abroad.

I should note parenthetically that the ways in which the U.S. government and foreign governments, over the years, have intervened in order to control the way that courts take jurisdiction when foreign interests are involved is a clear example of how executive action contributes to the development of international law. So I think Julian Ku’s earlier post is right on the mark. This is, of course, not to deny that if foreign states reject the U.S. executive branch’s assertions (always advanced as “interpretations”) about the proper rules governing immunities, those assertions will not in the end affect international law. This process is no less important when treaties are involved, and so the interesting question is whether over the next years—as China and Russia and other countries struggle with terrorism—foreign states will acquiesce in the current American interpretation of the Geneva Conventions, or reject it. The United States presumably is prepared for future cases where Americans who join al Qaida and other terrorist groups are subjected to Guantanamo Bay-like treatment by foreign states, and will presumably not object when those foreign states say that they are merely adopting the American interpretation of the laws of war. The laws of war will “develop,” as they should, so as to be more appropriate for types of threats and conditions not anticipated by earlier generations (as Ken Anderson notes), and at the hands of governments as well as courts, domestic bodies as well as international bodies.

For an academic argument that judicial deference to the executive branch in foreign relations litigation can be derived from the policies underlying Chevron (written with Cass Sunstein), see here. For a critique of this argument by Derek Jinks and Neal Katyal, see here.