The executive branch of the United States Government has indicated recently that it is reexamining its dominant judicatory role in the field of sovereign immunity of foreign states. Studies undertaken in 1966 by the State Department resulted in the preparation of draft legislation on sovereign immunity that the Department has been studying for possible presentation to Congress. The proposed Belman-Lowenfeld legislation would completely remove the State Department from any role in deciding sovereign immunity cases. The proposal itself would subject foreign states to the jurisdiction of United States federal courts for activities carried on or having a direct effect in the United States in the same manner that private persons or corporations are currently answerable for such activities. The legislation would make foreign states amenable to process in two types of cases: first, those based on express or implied contracts entered into, to be performed, or arising out of transactions in the United States; and, secondly, those based upon personal injury, death, or damage to property caused by an act or omission of any officer, agent, or employee of the foreign state while acting within the scope of his office, agency, or employment within the United States. Additionally, the proposed statute would facilitate obtaining jurisdiction over foreign states in actions falling within the parameters of the two categories outlined above since it separates jurisdiction from personal service and attachment of property. Consequently, the statute, in effect, eliminates completely the executive branch from the current system of adjudicating claims against foreign states.
When the proposed statute was announced at the annual meeting of the American Society of International Law in 1969, there was a difference of opinion on whether the legislation presented constitutional problems in its delegation of power from the executive to the judicial branch. Neither the text of the Constitution nor the current case law provides a clear solution to this problem. This note will examine the development and the current problems of sovereign immunity law in the United States. Next, a view of the role of the legislative branch, as well as the proposed statute, will be shown. Thereafter, a consideration of possible solutions will be undertaken in an effort to determine what resolution is most consistent with the underlying foreign affairs policies of the United States executive and judiciary.
Richard K. Hines V and Kurt A. Strasser,
Statutory Reform in Claims against Foreign States: The Belman-Lowenfeld Proposal,
5 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol5/iss2/12