The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.