President Trump’s foreign business dealings and his own exposure to suit in foreign courts, Russian meddling in U.S. elections and cybersecurity more broadly, as well as the President’s thin-skinned, personal style of politics all illustrate the dangers of allowing the executive branch to make foreign official immunity determinations binding on the courts.
Ingrid Wuerth is the Helen Strong Curry Professor of International Law at Vanderbilt Law School, where she also directs the international legal studies program. She is a leading scholar of foreign affairs, public international law and international litigation. She serves on the State Department’s Advisory Committee on Public International Law, she is a Reporter on the American Law Institute’s Restatement (Fourth) on U.S. Foreign Relations Law, and she is on the editorial board of the American Journal of International Law. She has won Fulbright and Alexander von Humboldt awards permitting her to spend substantial time in Germany and she is an elected member of the German Society of International Law.
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A little-noticed bill to amend the Foreign Sovereign Immunities Act (“FSIA”) passed both houses of Congress in December and was signed into law by President Obama on Dec. 16, 2016. The bill (“ The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJCA)” or “Art Museum Amendment”) narrows the expropriation exception in the FSIA to provide greater immunity for foreign states which send works of art to the United States for temporary exhibit. Unfortunately, the FCEJA may ultimately be more harmful than helpful to foreign states.
The Trump administration should use the post-human rights era as an opportunity to promote a different international law agenda: building a strong core of international law dedicated to protecting international peace and security.
Congress has overridden President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). JASTA has been rightly criticized by other commentators (for example here and here); my purpose here is to analyze several of its important features and to raise some questions about how they will be interpreted.
Whatever economic problems China and Russia may be experiencing, the foreign policy of both countries of growing importance to global peace and security. Russia’s military intervention in Syria and Ukraine have changed the political and military calculus in the Middle East and Eastern Europe. China’s land reclamation in the South China Sea has made that region into a global hotspot of interstate conflict, one that is unlikely to be diffused by the Permanent Court of Arbitration’s decision in Philippines v. China.
There is a downturn in civil and political rights in many of the world’s largest and most geopolitically significant countries, especially Russia, China, and Turkey, but also other countries such as Venezuela. These developments have broad potential consequences for international law. In particular, they have implications for: the success of regional human rights treaties and courts; the “right to democracy”; the meaning of sovereignty; and the overall effectiveness of international law.
As expected, the Supreme Court unanimously held in Sachs v. OBB Personenverkehr that OBB, a railroad owned by the Austrian government, was immune under the Foreign Sovereign Immunities Act.