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Foreign State Immunity and the Right to Court Access

62 Pages Posted: 25 Jan 2014  

Christopher A. Whytock

University of California, Irvine, School of Law

Date Written: January 21, 2014

Abstract

This article explores the tension between the foreign state immunity doctrine and the right to court access and it proposes a strategy for mitigating that tension. Part I explains the origins, evolution, and justifications of the foreign state immunity doctrine, according to which states are generally immune from suit in other states’ courts.

Part II traces the more recent emergence of the right to court access, according to which a person is entitled to a hearing by an independent court for the determination of a legal claim. The right to court access, whether or not it has become a legally binding rule of international law, is widely accepted and increasingly legalized. Therefore, one important criterion for normative evaluation of the foreign state immunity doctrine is its impact on court access.

Part III uses a combination of doctrinal and empirical analysis to elucidate the tension between these two doctrines. This part shows that beyond the truism that the foreign state immunity doctrine can deny court access in the forum state regardless of the merits, it can also preclude court access in third states, even when there would be no court access in the foreign state. It then uses statistical analysis of an original dataset of more than 350 foreign state immunity decisions by U.S. district court judges to shed light on how the court access consequences of the foreign state immunity doctrine play out in real-world litigation. U.S. district courts frequently deny court access on foreign state immunity grounds; both foreign nationals and U.S. nationals, and both individuals and businesses, are affected; and the likelihood of meaningful court access in the foreign state is often low when court access is denied in the United States.

Part IV argues that so far international and regional courts have done more to exacerbate than to mitigate the tension between the foreign state immunity doctrine and the right to court access. It therefore develops a strategy for mitigating the impact of the foreign state immunity doctrine on court access — one that takes seriously both the underlying functions of foreign state immunity and the importance of court access.

Keywords: International Law, International Litigation, Transnational Litigation, Foreign State Immunity, Foreign Sovereign Immunity, Court Access, Access to Court, Access to Justice, Fragmentation, Foreign Sovereign Immunities Act, International Court of Justice, European Court of Human Rights, Human Rights

Suggested Citation

Whytock, Christopher A., Foreign State Immunity and the Right to Court Access (January 21, 2014). Boston University Law Review, Vol. 93, No. 6, 2013; UC Irvine School of Law Research Paper No. 2014-10. Available at SSRN: https://ssrn.com/abstract=2383372

Christopher A. Whytock (Contact Author)

University of California, Irvine, School of Law ( email )

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Irvine, CA 92697-8000
United States
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