Foreign Dictators in U.S. Court, Part II

The combination of three doctrinal areas in foreign relations law gives dictators free access to U.S. courts as plaintiffs and an array of protections when they are defendants.

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Yesterday, I explained that foreign dictators are increasingly exploiting access to court by filing frivolous claims against dissidents and newspapers in the U.S. Authoritarian regimes can do that because of three doctrinal areas that I'll discuss today: the so-called "foreign privilege to bring suit," the equal treatment principle, and statutory/common law protections that dictators receive as defendants. As I argue in a forthcoming article, excerpted here, the combination of these three areas leads to a problematic asymmetry: "[F]oreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, usually immune from lawsuits here."

Let me start with the privilege to bring suit and the equal treatment principle. First, courts have long held that sovereign states can sue in American courts for any reason whatsoever. This "privilege to bring suit" comes with two minor preconditions, the plaintiff-government needs to be recognized by the executive branch and must not be "at war" with the United States. Apart from that, however, there are no limits. Any government in power in any recognized country in the world can file a claim in U.S. court against any one they wish. Even Cuba in the midst of the Cold War and only a year after the Cuban missile crisis filed claims in SDNY. Turkey's Erdogan can pursue opponents in legal proceedings at any time. Same for Putin's Russia, Maduro's Venezuela, and the Chinese Communist Party.

Second, even when there are laws that apply uniquely to foreign sovereigns, U.S. courts refuse to draw distinctions between foreign government types. This "equal treatment principle" forces courts to be regime-neutral in their decisions, treating dictatorships, democracies, monarchies, and any other regime types the same way. Some of you may notice the resemblance to the domestic "equal sovereignty" principle that renders the fifty states equal for some purposes. For the internationalists, keep in mind that such an equal treatment principle differs from the concept of sovereign equality because even if states are equal "as legal persons in international law, this equality does not require that in all matters a state must treat all other states in the same way."

Both the "privilege to bring suit" and the "equal treatment principle" trace back to a 19th century case, The Sapphire, that I describe in the article:

In 1867, an American ship collided with a French transport ship named The Sapphire near San Francisco. Unlike in Schooner Exchange, it was the French government—in the name of the Emperor—that filed suit in a U.S. District Court to recover damages for the crash. With an emperor as plaintiff, the question of sovereign immunity was no longer relevant. As the Court noted in The Sapphire, the question was now whether "the French Emperor" could "sue in our courts."  The Court held that foreign sovereigns were allowed to "prosecute [cases] in our courts," because to deny them that privilege "would manifest a want of comity and friendly feeling."  The Court rooted this privilege, among other areas, in the diversity jurisdiction clause of Article III, noting that "the Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects."

Importantly, the Court explicitly refused to draw a distinction between Napoleon as emperor and his potential successors in France, noting that "[t]he reigning Emperor, or National Assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty."  The privilege of suing in our courts, the Court affirmed, was given to the foreign sovereign, regardless of who was officially in power in that country.  This was an embrace of an equal treatment principle for all regime types.

As I discussed yesterday, the Supreme Court reaffirmed these principles in Banco Nacional de Cuba v. Sabbatino, where the Court allowed Fidel Castro's government to file suit in U.S. court and to benefit from American comity doctrines.

Both The Sapphire and Sabbatino rested on three pillars: the potential harm to the nation's foreign relations, the value of international comity, and the difficulty of assessing which foreign regimes deserve different treatment. The basic idea here is that U.S. courts should not offend foreign nations unless Congress or the executive obligate them to do so. This ideal of international comity influences most transnational cases, nudging U.S. courts to give an added respect and "friendly feeling" to foreign sovereigns. International comity also makes transnational litigation—one of my areas of research—somewhat unique.

All of this makes sense as far as it goes. The problem, however, is that while foreign sovereigns have unfettered access to our courts as plaintiffs, they also benefit from doctrines that protect them as defendants. I'll mention three here: the Foreign Sovereign Immunities Act (FSIA), act of state, and common law immunities.

Under the FSIA, all foreign sovereigns enjoy immunity from suit, subject only to a few exceptions. These exceptions include expropriations in violation of international law, commercial activities, domestic torts, and claims against state sponsors of terrorism. But, on the whole, the FSIA is often an insurmountable wall that prevents lawsuits.

Even when plaintiffs can get past the FSIA, they run into other barriers, including the act of state doctrine. Under this doctrine, U.S. courts will "refuse to judge the validity of a foreign sovereign act done within a foreign country's territory." The doctrine thus operates as a choice of law provision, forcing U.S. courts to apply foreign law to a foreign sovereign's act. So if you are a plaintiff in U.S. court and Fidel Castro, Stalin, or Mao expropriated property and killed your family members abroad, U.S. courts will throw-up their hands and say "Sorry, I have to apply Cuban/Soviet/Chinese law and find this act valid." Courts can use act of state to avoid cases even if plaintiffs have a proper cause of action, jurisdiction, standing, and fulfill every other constitutional or statutory requirement.

Finally, even if you try to avoid the FSIA by suing individual officials or dictators, there are a series of common law immunities that will probably get your case dismissed.

Taking all of this together we, once again, arrive at the asymmetry at the center of the article:

Foreign dictatorships can pursue their interests in U.S. court but their opponents cannot sue them for similar concerns.  To be sure, this asymmetry applies to all foreign states, regardless of regime type. But the asymmetry has particularly worrisome consequences in dictator-related cases because foreign authoritarians go on the offensive against democratic opponents, newspapers, and dissidents in the United States. Return to the example above: Venezuela can sue the Wall Street Journal for a legitimate article on the government's narcotrafficking links. But U.S. journalists, non-governmental organizations, Venezuelan dissidents, or former Venezuelan citizens cannot easily sue the Venezuelan government in the United States because of sovereign or official immunity (as well as jurisdictional limits). Or, for example, return again to the DNC's suit against Russia for its cyberattacks during the 2016 election. While Russia has pursued dissidents in U.S. courts in a variety of ways, a judge recently held that Russia was itself immune under the FSIA.

The fundamental question, then, is whether U.S. courts are obligated to respect this asymmetry, the foreign privilege to bring suit, the equal treatment principle, and statutory/common law protections for dictator-defendants. Must U.S. courts give foreign dictators easy access to our courts as plaintiffs and protections when they are defendants? Must U.S. courts treat all foreign sovereigns equally, regardless of regime type? Tomorrow, I'll argue that the answer is simple: No.

 

NEXT: Today in Supreme Court History: May 4, 1942

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  1. “Must U.S. courts give foreign dictators easy access to our courts as plaintiffs and protections when they are defendants?”

    Answer this question by flipping it.

    Must foreign courts give the U.S. easy access to their courts as plaintiffs and protections when they are defendants?

    The answer has to be the same for each question.

    1. DING DING DING.

      In one.

  2. The lawyer profession allows access to the courts to dictators to harass dissidents. That is to generate fees.

    All such fake, pretextual claims are fraud, fraud by the plaintiff, by the lawyer d-word, by the judges. If were to exclude all such claims, they should be criminalized, and all pretextual claims should get the same remedy. That includes the majority of tort and discrimination claims. All nitpicking, all gotchas should be criminalized. Here is the question to ask. If Trump were not President would his tax returns have been investigated as they are being? If the answer is no, arrest the Dem prosecutors for fraud. The fraud is taking money for a political not for a legal claim.

  3. To what problem is any of this a solution? If foreign sovereigns, whether it is politically expedient to call them “dictators” or not, bring frivolous or ill-motivated suits in U.S. courts, they can be dealt with as expeditiously as we deal with such suits brought by domestic litigants. Maybe we need better ways to deal with all forms of vexatious litigation, but carving out vexatious litigation by disfavored foreign governments or leaders isn’t a real contribution.

  4. “all forms of vexatious litigation” Excellent point. Criminalize them, such as the Mueller investigation.

  5. I wish this post was a little clearer … it seems fairly repetitive unfortunately. What solution is being proposed, exactly? If the law review article is written like the post I’m not sure I want to read it.

    On the merits: I dont really have a problem with foreign soverign immunity? I mean, if you are in another country, those rules apply. Sure there is international law, but then abbrogations of sovereignty are all worked out ahead of time in treaties through international courts.

    In fact, the attempts by the US to enforce its law across the world is … very worrisome to me. There have been cases where a bank wire transferred though the US from one country to another and the US prosecuted the guy for not following US banking rules …

    even though the guy, the guy he sent it to, and the bank were not located in the US!

    The way the internet works, any possible transfer will pass though the US!

    Obviously thats people, not countries, but that highlights the whole issue: countries don’t have this problem because immunity, but people in other countries do.

    And I dont know what will happen about cybercrime and fraudulent call centers if you deny US jurisdiction, but this is a problem no one has really worked out how to solve.

    The US has arrested a lot of people for violating Iranian sanctions even though they live in a country that does not have sanctions. I support Iranian sanctions, but its ridiculous.

    Ok, so thats that, foreign soverign immunity imo is ok. Now, how about the opposite, foreign governments suing people in the US? Its pretty clear as a matter of article III that they have the right to …

    So how about a limited rule of the following: If you are fleeing persecution from a foreign country, and you get asylum, that country is categorically barred from suing that person in US federal court or state court. The while point of asylum is to apply the rights denied to you … a country cannot deny those rights here. The countries courts can do whatever it wants.

    Doesn’t address all of OPs concerns, but I am somewhat uncomfortable saying, these governments are bad, therefore, they can’t have a day in court. Because the whole point of the US system is that everyone has access, including people we don’t like.

    And frivolous lawsuits are not limited to dictators, and solution involves dealing with them more generally.

    1. I’ll admit I’m fairly outspoken on this issue … even things like the Eichmann or Nuremberg trials are somewhat problematic to me (though I would probably support them if I was around back then). I can think of so many ways that, had the Axis won …

      1. “I can think of so many ways that, had the Axis won …”

        If the Axis had won, I think issues of comity with foreign nations and sovereign immunity would be pretty pretty pretty far down the list of issues to worry about.

        1. Long time, no see. Welcome back.

  6. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

    I’m sure that SCOTUS would love to be dealing with all of this, but what part of “all Cases affecting Ambassadors, other public Ministers and Consuls” doesn’t apply here?

  7. One problem I see (and which maybe the article addresses) is how to distinguish dictatorial from non-dictatorial regimes. Was France a dictatorship during the six months in 1958 when Charles de Gaulle and his cabinet was given authority to rule by decree? Similar powers, given to the government of Marshall Petain by the French Parliament in 1940, and by the Reichstag to the government led by Chancellor Hitler in 1933, are generally thought to have made those heads of government into dictators. Surely it can’t be the case that we only call regimes dictatorial if they use their dictatorial powers in ways we disapprove.

    What about Singapore? If it’s a dictatorship, it’s a relatively benign one, but it is effectively a one-party state, and it doesn’t the kind of robust protection of freedom of expression that we tend to regard as a bulwark, if not an essential bulwark, of democracy. And what makes Putin a dictator? Elections in Russia are freely contested; Putin and his party just happen to win them. There may be some election fraud, but it can’t seriously be argued that it’s great enough to sway presidential elections or control of the Duma. What rule can be crafted that tags Russia as a dictatorship but Singapore as a non-dictatorship.

    Finally, one state about which there is no question of its status as a dictatorship is the Vatican City State, where Pope Francis has supreme and exclusive legislative, executive, and judicial power. Are we seriously going to deny the Vatican the right to litigate in U.S. courts?

    1. Just demand equal access. If we can sue them, they can sue us. Let the governments sort themselves out.

  8. ” Are we seriously going to deny the Vatican the right to litigate in U.S. courts?”

    *Can* the Vatican litigate in US courts, or is the actual litigant the relevant archdiocese?

    Without getting into the anti-Catholicism of a century ago, is the US Catholic Church a domestic entity, or agents of a foreign state?

    1. I raised the issue of the Vatican City State, not because I was worried that the Catholic Church (or, rather, the various dioceses in the United States) could bring lawsuits. I was worried that the Vatican City State, which is a separate juridical person, might not be able to. For example, Prof. Zambrano cited the case of Banco Nacional de Cuba v. Sabbatino, in which the state bank of Castro’s Cuba brought an action in federal court. If we’re going to bar such lawsuits because Castro is a dictator, what about lawsuits brought by the Istituto per le Opere di Religione, i.e., the Vatican Bank, which bears the same relationship to the Vatican City State as the Banco Nacional de Cuba bears to the Republic of Cuba. (Admittedly, the Istituto has a terrible reputation, and every generation or so a new pope has to try to clean up the Augean stable that is the Vatican bank, so maybe we don’t mind if the doors to American court are shut to them.)

      So if we don’t like the example of the Istituto per le Opere di Religione, what if the Vatican Office of Posts and Telegraphs wants to sue IBM in a dispute over equipment that IBM sold them? Or if the pope himself hired Ernest Young to shake up the various Vatican dicasteries with their ideosyncratic accounting systems dating back to the 15th century and make them all conform to GAAP (or the EU version thereof), and the relationship broke down, and the Vatican wanted to sue for damaged incurred when the EY contract was cancelled and PwC hired in EY’s place?

      1. I meant to say “sue for *damages* incurred”. (Reason really needs to allow edits to comments. That’s one point on which the Washington Post platform was superior.)

  9. IANAL and I am late to the comments today.

    How does this compare to US courts refusing to recognize foreign legal actions which were not done “appropriately”? There have been several posts here about judges refusing to recognize foreign marriages, divorces, child custody, and other actions, mostly in Muslim countries, where the process itself is considered incompatible with how US courts would have handled it. Are those refusals not an insult to teh foreign country?

    I suppose part of this depends on whether those refusals are because of laws passed by Congress, or whether they come from common law. But they sure seem similar. If we can refuse to recognize a foreign divorce or marriage or child custody agreement, why not refuse to recognize foreign government lawsuits which are not in accordance with US practices?

    Some time back there was a post, possibly a hypothetical, about an American who gets in a traffic accident in Canada, does not flee, but does come back to the US, where, some time later, the Canadians charge him with a crime, or maybe a Canadian brings a civil suit. The question was how to judge it? You obviously can’t judge the Canadian crime by US law. It is impractical to extradite the American to Canadain for a misdemeanor or civil suit, and the American probably won’t voluntarily self-extradite himself.

    The answer was that the American court should apply Canadian law, which strikes me as plain bizarre. Legal systems qre quirky enough fo experienced lawyers and judges; asking them to try to forget everything about their own system and pretend they are a foreign judge is crazy.

    Isn’t this the same problem? How can you possibly expect a US court to apply foreign laws when a foreign government brings suit in an American court?

    The doctrine thus operates as a choice of law provision, forcing U.S. courts to apply foreign law to a foreign sovereign’s act. So if you are a plaintiff in U.S. court and Fidel Castro, Stalin, or Mao expropriated property and killed your family members abroad, U.S. courts will throw-up their hands and say “Sorry, I have to apply Cuban/Soviet/Chinese law and find this act valid.”

  10. The concept of international comity is not so easily dismissed. By having having agreements whereby the US respects foreign sovereign immunity, actions of state, etc., the US avoids having foreign countries do the same.

    Do we really want foreign courts to be free to sue the US, seize its assets, etc. whenever they consider their interest threatened?

    Fundamentally, the constitution exists to protect US persons. As the Supreme Court held in Agency for International Development vs. Alliance for Open Society International, foreign citizens outside US territory have no constitutional rights at all. They are constitutional non-persons, the constitutional equivalent of third trimester fetuses. And the essence of Roe v. Wade is that, even where third trimester fetuses and their equivalents are concerned, the courts will scrutinize laws protecting constitutional non-persons and strike them down if they interfere with Americans’ rights and interests too much. The idea of universal humanity equating to universal rights has not exactly fared well in the Supreme Court. To the contrary, moral values like human universalism, the sanctity of human life, etc. etc. are at best indulged by the courts, and then only to a limited extent, if it doesn’t pose too undue a burden on Americans’ rights.

    I agree that Congress, as the choice maker, has the power to base foreign policy on moral values if it wants. It could indeed open up our courts to suits by foreign nationals against their governments if it cares to. But the United States is hardly the sort of hegemonic superpower it imagines itself to be, if it ever was. It is economically in an increasingly weak position vis-a-vis fhe rest of the world, and its military position is still strong but getting comparatively weaker as well. It has to get by in a world where powers ruled by dictators have power, potentially the power to conquor it, and certainly the power to strangel its ecomomy and make its life miserable. The idea that we have the ability to impose our will on foreign superpowers just because we think it’s the right thing to do without expecting them to attempt to impose their will on us, and without that attempt having significant consequences, displays a considerable naivete.

  11. For example, do we the descendants of Chinese citizens discriminated against by the United States in the 19th Century able to sue the United States and American companies in Chinese courts and seize their assets? Native Anericans? Slaves? It’s not like our hands are exactly clean. Other countries have no obligation to have any statute of limitations. They can also pass laws especially designed to make it easier to rake over our past and sue us.

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