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Vanderbilt Journal of Transnational Law

R. Lee Bennett

First Page

549

Abstract

In January 1973, the Departments of State and Justice submitted to Congress a draft bill that defines the jurisdictional immunities of foreign states in United States courts. This draft legislation represents a major shift in the State Department's posture on the substantive and procedural issues of sovereign immunity that will undoubtedly stir considerable controversy within the international bar during its examination by Congress.

A survey of current United States practice regarding the immunity of foreign states reveals that reform is mandatory. At present the determination whether a foreign state is entitled to jurisdictional immunity is made by the courts, whose decisions admittedly are governed by State Department "suggestions" transmitted through the Attorney General. The promise of the Tate letter, which announced the executive's withdrawal from the judicial process, has been undermined repeatedly by executive suggestions of immunity prompted by political exigencies. Moreover, the political considerations underlying these suggestions are not required to be disclosed and are not subject to judicial review. Even when the executive branch is silent in a particular case, the courts continue to defer to its dominant role on sovereign immunity issues by referring to the policy set forth in the Tate letter or to State Department "decisions" in past cases. Additionally, the present state of the law provides neither the foreign state nor the private claimant any assurance that a foreign state's activity falls within the scope of the Tate letter doctrine. Further, the variegated procedures for service of process and for attachment are inadequate. Even if the court assumes jurisdiction, a final judgment against the foreign sovereign may be worth nothing since the assets of a foreign state are wholly immune from execution in satisfaction of a judgment. Finally, the present arrangement is manifestly unfair to the victims of a foreign state's torts. A more detailed examination of the development and current practice of the doctrine of sovereign immunity is presented in Part II.

To resolve the above-described problems, the draft bill proposes a comprehensive regime that would regulate all aspects of a private suit against a foreign state, its political subdivisions, agencies and instrumentalities. First, and most significantly, the bill entirely removes the State Department from the judicial process. The Department would no longer issue suggestions at the request of a foreign sovereign or a domestic court. In determining whether to grant immunity to a foreign state, the courts would be guided solely by the statute, existing and developing American and foreign case law, and principles of international law. Secondly, the bill eliminates attachment as a jurisdictional basis for claims against foreign states and implements procedures for obtaining service of process by mail. Thirdly, the assets of a foreign state relating to its commercial activities in the United States will no longer enjoy absolute immunity from execution on adverse judgments. The particulars of the proposed statute are analyzed seriatim in Part III.

Notwithstanding the desiderata of a statutory regime governing claims against foreign states, the fundamental question raised by this particular proposal is whether it represents an unconstitutional infringement of the executive's powers over the conduct of foreign affairs. In its present form, the bill absolutely precludes executive suggestions of immunity. Part IV of this Note considers whether the executive has inherent powers in the area of foreign affairs, and, if so, whether the power to suggest immunity to the courts is a necessary incident of this power.

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