Conventional wisdom and many lower court cases hold that foreign states are not entitled to constitutionally based personal jurisdiction protections in federal courts because they are not “persons” protected by the Fifth Amendment. That reasoning is incorrect as a matter of constitutional text and history, and it leads to poor results as a matter of policy for reasons explored at length in a forthcoming article and summarized here.
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.
Subscribe to this Lawfare contributor via RSS.
In May 2017, protests in Washington, D.C., against Turkish President Recep Tayyip Erdogan ended in violence by Turkish security officials.
The growing challenges both to international human rights law and to the international legal system as a whole count as old news by now. The sources of these threats are many: the rise in populism and nationalism, the growth in power and assertiveness of both China and Russia, growing income inequality, the election of Donald Trump, Brexit, and so on. Even in this context, however, the past year has been an especially difficult one for human rights.
On Jan. 8, the U.S. Court of Appeals for the D.C. Circuit released its redacted opinion In re Grand Jury Subpoena, the mysterious case with apparent links to the Mueller investigation concerning an unnamed corporation (“the Corporation”) owned by an unnamed foreign country.
A mysterious judgment in a case with purported ties to the Mueller investigation highlights a topic of growing significance: the criminal prosecution of foreign-state-owned enterprises. The judgment by the U.S. Court of Appeals for the D.C.
Writing in Lawfare in April 2018, I considered the role of foreign sovereign immunity in the Democratic National Committee’s lawsuit against the Russian Federation and Russian individuals and entities. The case raised an interesting set of issues, I noted, but “these questions will only arise if Russia and the state-related defendants are properly served and if they decide to litigate rather than default.” The courts may get to think through some of these questions after all.
The Supreme Court will soon hear oral arguments in Jam v. International Finance Corp. The case, which will be argued on October 31, 2018, raises an important threshold question about the immunity of international organizations from suit in the United States. But the briefing does not provide the full answer.