The U.S. Supreme Court as Quasi-International Tribunal: Reclaiming the Court's Original and Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States
Thomas H. Lee
Fordham University School of Law
Columbia Law Review, Vol. 104, No. 7, November 2004
Fordham Law Legal Studies Research Paper No. 55
The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in the supreme national tribunal-situated as an intermediary between the semi-sovereign States and the fully sovereign foreign states - for the sake of international peace. State breaches of the 1783 Treaty of Peace with Great Britain were considered the principal potential cause for a shooting or trade war by the founders of the new Republic.
The thesis is supported by the constitutional text of Article III as amended by the Eleventh Amendment and by the historical evidence of original intent, including the inaugural implementation of the Original Jurisdiction Clause by Section 13 of the First Judiciary Act of 1789. Nor is it inconsistent with the principle of sovereign dignity for a semi-sovereign State to be sued by a fully sovereign foreign state that filters the claims of its citizens through its domestic political process. That the Court had original and exclusive jurisdiction over treaty-based suits by foreign states against States was an opinion shared by Supreme Court justices and constitutionalists throughout the nineteenth and first quarter of the twentieth centuries, but awareness of the jurisdiction was lost by the time of the Court's decision in Monaco v. Mississippi, 292 U.S. 313 (1934), when the United States' great power status in the world was incontestable. Reclaiming the Court's lost jurisdiction today would require a narrowing of that decision but makes sense given the recent resurgence of American federalism and the increasing pace of globalization of law and legal institutions.
Number of Pages in PDF File: 121Accepted Paper Series
Date posted: August 12, 2004
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