Comity & Calamity: Deference to the Executive and the Uncertain Future of the FSIA

Authors

Michael Cooper

First Page

913

Abstract

In 1976, Congress set out to remedy the haphazard and politically influenced system by which foreign states were granted sovereign immunity from United States’ courts. Its remedy was the Foreign Sovereign Immunities Act (FSIA), which explicitly put the power to determine whether a foreign state should be granted immunity from a court’s jurisdiction in the hands of the judiciary. Moreover, with some minor exceptions, the FSIA did not explicitly contemplate any involvement from the executive branch in reaching those determinations. However, given that concerns involving foreign relations inherently arise when a foreign state is sued in U.S. courts, the courts often invite the executive branch to weigh in on FSIA disputes. This Note analyzes instances of the government acting as amicus curiae at the Supreme Court level and the amount of deference the Court gave to those arguments. It considers six cases that implicate differing provisions of the FSIA and also the statute as a whole. This Note seeks to establish that the FSIA’s explicit purpose of giving the courts primacy in determining sovereign immunity decisions has been watered down in practice, and to argue that the judiciary assert itself more firmly when making these determinations.

Recommended Citation

Michael Cooper, Comity & Calamity: Deference to the Executive and the Uncertain Future of the FSIA, 45 Brook. J. Int'l L. 913 (2020).
Available at: https://brooklynworks.brooklaw.edu/bjil/vol45/iss2/9