RIP Common federal law on foreign relations?
The federal common law of foreign relations is a shrinking area. It should still govern many questions related to immunity, but not for the reasons given by the courts and other academics.
The federal common law of foreign relations has been in decline for decades, as Jack Goldsmith predicted over 20 years ago. In a new article â to appear in the Georgetown Law Journal as part of a symposium on Anthony J. Bellia Jr. and Bradford R. Clark’s book, “The Law of Nations and the United States Constitution” âI describe state of the art and argue that the federal common law should govern many questions relating to immunity. (Other papers from the symposium are here, here and here.)
The domain was built in part on the assertion that customary international law is federal common law and in part on the assertion that federal judges should supersede state law when they conclude that state law is detrimental to the foreign relations of the United States. Today, however, customary international law is generally applied on the basis of the implicit intentions of Congress, rather than as a stand-alone federal common law. In the Alien Tort Statute (ATS) cases, for example, federal common law is based on the Supreme Court’s understanding of the authority delegated to it by Congress. The High Court interpreted this grant of legislative power narrowly in its three ATS cases: Sosa vs. Alvarez-Machain, Kiobel v. Royal Dutch Petroleum and Jesner v. Arab bank. In other areas, such as pre-emption of foreign affairs, judicial assessment of foreign policy issues has been largely replaced by recourse to presidential or congressional action, or by standard constitutional analysis.
Two traditional areas of federal common law – foreign sovereign immunity and state act doctrine – are nonetheless alive and (reasonably) well doctrinally, but their status as federal common law appears somewhat unstable. Although the Supreme Court ruled in 2010 that the immunity from prosecution of foreign officials in the United States is governed by “common law”, it has not explained why. Commentators have suggested that customary international law applies to questions of immunity because customary international law is automatically federal common law, but there is little judicial support for such reasoning. Meanwhile, the US government has argued that the President, not the courts, reviews individual immunity determinations, a claim that should be rejected for the reasons I have set out here and here.
As to the state act doctrine, the Supreme Court ruled half a century ago that it was governed by federal common law because the question of adjudicating the actions of another state on its own territory is “inherently federal” and cannot be left to the state. law. But the Supreme Court has since restricted the doctrine. Recently the court referred to it as a principle of “deference” and not as a matter of federal common law.
There is, however, a solid basis for applying federal common law to questions of the individual immunity of foreign officials. To develop rules of individual immunity as federal common law, courts do not need to characterize customary international law as federal common law, nor to rely on the exceptional nature of foreign policy or foreign relations. Instead, the Foreign Sovereign Immunities Act (FSIA), a comprehensive statute governing all aspects of foreign state immunity in U.S. federal and state courts, provides the basis for federal common law governing official immunity.
Although lower courts once considered individual immunity and state immunity to be so closely related that the FSIA applied to cases against individual officials as well as cases against foreign states, the Supreme Court decided otherwise, ruling in 2010 that individual immunities are not governed by the FSIA. but are governed by common law. Nonetheless, the purpose of granting immunities to government officials (including former and current heads of state) is to protect the foreign state for which these individuals work (or previously worked). This means that individual immunity must be compatible with the immunity granted to foreign states under the FSIA. Courts should therefore apply and develop federal common law to protect the choices Congress made in the FSIA.
Courts already apply federal common law to determine the allocation of material liability in cases involving foreign state-owned enterprises, as the Supreme Court ordered in an uncontroversial case known as the Bancec (United States v. First National City Bank). Indeed, Bancec applied federal common law to matters of substantive liability of states and their agencies and instruments. Individual immunity, on the other hand, is only a matter of procedural immunity from prosecution. The Supreme Court has underscored its reluctance to use federal common law to create new causes of action and material liability rules, but the immunity rules do neither.
Other federal common law concerns also have little or no force in the context of foreign official immunity. Critics of the federal common law argue that it should not confer jurisdiction ratione materiae on federal courts under Article III of the Constitution and that the federal common law power cannot be inferred from a attribution of competence ratione materiae; that federal common law is incompatible with the separation of powers because Congress, not the courts, should legislate; and that it cannot prevail over state law by virtue of the supremacy clause. But it is not necessary to decide that a matter of foreign official immunity alone confers the material jurisdiction of Article III on federal courts, nor that the substantive jurisdiction itself implies the power to make the federal common. in cases concerning foreign official immunity. Cases against foreign officials may involve diversity or federal jurisdiction over the matter (based on federal law that creates or authorizes the creation of a federal cause of action). Unusual cases that are not should probably be taken to state, not federal, court for legal reasons. Although the FSIA confers jurisdiction ratione materiae in cases against foreign sovereigns, if they do not enjoy immunity, there is no such thing as law conferring jurisdiction ratione materiae in cases against foreign officials who do not enjoy immunity. Some federal district courts have equated ordinary immunity with the lack of jurisdiction ratione materiae (see the 2017 case Lewis vs. Mutond), but these courts provide no convincing basis for doing so. And the power to make federal common law rules is inferred from the FSIA, not from a grant of jurisdiction ratione materiae.
Concerns about the separation of powers are downplayed in the context of immunity because official foreign immunity involves only a limited range of judicial decisions. Many, but not all, issues will be resolved on the basis of the FSIA. Some can be resolved on the basis of the content of customary international law, which Congress sought to adhere to when the FSIA was enacted. Some distinct factual questions can be resolved largely by deference to the executive branch, such as whether or not a particular person is a head of state. Likewise, the problems with the supremacy clause are minimized because many of these cases will be subject to federal law causes of action (meaning that the substantive law of the state is not moved) and because that foreign state immunity is not an area traditionally regulated by state law.
Foreign official immunity is a narrow area, but it can raise important legal and political questions. Consider, for example, the possible immunity of Russian President Vladimir Putin from civil or criminal prosecution in the United States. The application of federal common law, state or federal courts would consider that as a sitting head of state, Putin is entitled to immunity. Customary international law is clear: sitting heads of state are immune from the jurisdiction of foreign national courts. (Immunity from international tribunals such as the International Criminal Court is a different legal matter.) Congress enacted the FSIA to give the courts, not the president, the power to determine immunity and ensure compliance. general customary international law. Historically, the courts have applied immunity as a matter of general law, and they should continue to do so today as a matter of federal common law. President Trump’s personal take on whether or not Putin should be immune from prosecution is irrelevant.
The federal common law of foreign relations is neither based on the classification of customary international law as federal common law, nor on a judicial assessment of the dangers of foreign relations. At least when it comes to immunity, it is better understood and better legitimized as fundamentally interstitial, encompassed largely by federal laws but also by international law and even watch decisis, which downplay any potential constitutional objections.