Christopher A. Whytock, Foreign State Immunity and the Right to Court Access, 93 B.U. L. Rev. 2033 (2013).
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.