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Chapter IV
SOVEREIGN IMMUNITY, THE ACT
OF STATE DOCTRINE, AND
HUMAN RIGHTS
As modern nation states have expanded the range of their
activities, they have exposed themselves to a wider range of lawsuits
and thus have greater occasion to invoke the defense of sovereign
immunity and the act o f state doctrine. The comme rcial activities of
sovereign nations led to the first transformation of the law of
sovereign immunity. The argument gradually gained force that
sovereign states and their instrumentalities should be treated like
other actors in the commercial world. That position, called “the
restrictive theory of sovereign immunity,” eventually was codified in
the Foreign Sovereign Immunities Act (FSIA).
1
During the same
period, the current version of the act of state doctrine became part of
federal law. This doctrine recognizes the legitimacy of official acts of
foreign sovereigns according to their own law s within their own
territory, even if those acts violate international law. The act of state
doctrine, like foreign sovereign immunity, has narrowed in scope
since the leading modern decision on the subject, Banco Nacional De
Cuba v. Sabbatino,
2
which involved expropriation of property,
allegedly in vio lation of international law. Although the violation
involved property rights, the presence of international law points to
the second transformation of sovereign immunity in the modern era:
the expanded protection of human rights. Decisions under the Alien
Tort Statute, discussed in previous chapters, exemplify this trend. If
claims are brought against foreign nations or their instrumentalities,
they must fall under an exception in the FSIA, wh ich has spe cial
provisions for human rig hts violations. These prov isions, altho ugh
usually narrow in scope, have accumulated in number and
significance as human rights violations have been more widely
publicized and condemned. If recent developme nts are any guide,
current trends favor further protection for human rights.
Human rights, like commercial activity, reveal how the modern
understanding of sovereignty has expanded the dimensions of
international civil litigation. As the power of sovereign nations has
grown, their immunity from suit has dim inished. Sovereignty has
changed from the absolute terms in which it was previously
1
94 Pub. L. No. 583, 90 Stat. 2891 (1976) (codified at 28 U.S.C. §§ 1330, 1332,
1391(f), 1441(d), and 1602–11 (2018)) [hereinafter FSIA].
2
376 U.S. 398 (1964).
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SOVEREIGN IMMUNITY, THE ACT OF STATE
DOCTRINE, AND HUMAN RIGHTS
Ch. IV
conceived, as the e xclusive power of a single government within the
territory it controlled, to a highly qualified and comp licated issue
which opens the door to claims against government officials for
human rights violations committed against the government’s own
people within its own boundaries. In American law, the same trends
have become familiar in domestic government litigation, where
contract, tort, and civil rights claims against the government and
government officials have spawned intricate procedures and
complicated forms of immunity. International litigation against
foreign sovereigns and foreign officials has initiated a parallel
process of doctrinal elaboration, which has only begu n to address all
the implications of any p rogram of effective enforcement of human
rights.
The movement from enforcement of commercial and property
rights, which do minate the te rms of the FSIA, to enforcement of
human rights also resembles the pattern of development of American
law, particularly with respect to constitution al rights. Early in the
nation’s history, most constitutional claims protected rights to
property and contract, and only in the twentieth century d id
protection extend to other constitutional rights, such as freedom of
speech, religion, and privacy. Restraints on g overnment that
protected p roperty and commercial interests only l ater spread to a
range of individual rights that everyone could enjoy. Those who could
initially afford the expense of taking on the gove rnment paved the
way through legal doctrine and procedure for those with fewer
resources. In the process, constitutional rights expanded accordingly.
Litigation under the FSIA exhibits the same trend, from commercial
disputes dealing with foreign sovereigns and their instrumentalities
to human rights claims recognized as a matter of tort or statutory
law. The latter have not yet developed into a full-fledged system of
effective individual rights, a development which must await
international agreements and initiatives undertaken by the
executive and legislative branches of government. Most of the cases
in this chapter concern comme rcial and property disputes, and
relatively few concern human rights, yet both types of cases are
intimately connected by the legal doctrine common to both of them.
Existing law recognizes the potential for broad protection of human
rights, even if it has yet to be realized.
A. The Restrictive Theory of Foreign Sovereign
Immunity
Foreign sovereign s acquired immunity from the jurisdiction of
American courts early in the nineteenth century in The Schooner
Exchange v. McFadden.
3
That decision brought the customary
3
11 U.S. (7 Cranch) 116 (1812).
