I recently had occasion to review the international law jurisprudence of Judge Merrick Garland as part of an evaluation prepared by the American Bar Association’s Standing Committee on the Federal Judiciary of the professional qualifications of Judge Garland to be the next Associate Justice of the Supreme Court of the United States. The Standing Committee, which has conducted independent and comprehensive evaluations of the professional qualifications of nominees to the federal bench since 1953, considers nominees’ integrity, professional competence, and judicial temperament (but not his or her ideology or judicial philosophy), and then issues a rating of either “Well Qualified,” “Qualified,” or “Not Qualified.” (A backgrounder is here). In so doing, the Committee relies on the assessments of a range of stakeholders, including: federal and state judges (with all circuits represented), lawyers in private practice and government service, law school professors and deans, legal services and public interest lawyers, and community leaders, among others. Stanford Law School convened one such Academic Reading Group, chaired by my colleague Professor Bernadette Meyler. Not surprisingly, the Standing Committee rated Judge Garland as “Well Qualified” and generated a glowing evaluation of his professional qualifications.

Judge Garland on International Law

In terms of substance, the bulk of Judge Garland’s “international law” cases actually involve a US statute: the Foreign Sovereign Immunity Act, or FSIA (28 USC § 1602, et seq.), appearing at times in tandem with the act-of-state doctrine. The latter is a common law rule of decision that directs US courts to avoid questioning “the validity of public acts (acts jure imperii) performed by other sovereigns within their own borders.” (From Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004)). It is not, however, a principle of complete abstention, nor is it a bar to suit whenever a case touches upon foreign affairs issues. “Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them” as the court found in W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990).

Judge Garland has had occasion to cite and apply international law in the narrowest sense, mostly in the form of treaties that have been ratified (or not, on one occasion) by the United States, although there are some passing references to customary international law in his opinions as well. In engaging in the process of treaty interpretation, Judge Garland adheres to the methodology established by the Vienna Convention on the Law of Treaties of May 29, 1969 — a treaty that the United States has not yet ratified, but that is regularly relied upon by US judges — and marshals a wide variety of relevant sources, including the records of the negotiations that produced the treaties, or the travaux préparatoires, other states parties’ interpretations of the treaty, and the international context in which the treaty was promulgated. He cites foreign law judiciously, for example to reveal the way in which the United States’ multilateral treaty parties have construed and enforced shared treaty language. See Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (with Justice Antonin Scalia, dissenting: “When we interpret a treaty, we accord the judgments of our sister signatories ‘considerable weight’” (citations removed)). Only one of Judge Garland’s prior opinions involved the Alien Tort Statute, which often serves as a vehicle for US judges to adjudicate international law. That suit had not yet reached the stage in which the sufficiency of the substantive claims were at issue, however, so how Judge Garland would apply Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), remains to be seen.

Given the relative paucity of his international law opinions, it is difficult to draw broad conclusions about Judge Garland’s approach to international law, particularly with respect to some of the more contentious doctrinal issues, such as the justiciability of customary international law, the force of non-self-executing treaties, and the relevance of international or foreign law to constitutional interpretation. To the extent that he does consider international law, however, Judge Garland articulates positions that are well within the mainstream interpretive approach. The cases also reveal Judge Garland to be willing and able to adapt ordinary domestic rules to extraordinary international events and to keep US courts open to victims of grave violations of international law where US law allows it.

The Foreign Sovereign Immunity Act Cases

The courts of the District of Columbia often play host to suits against foreign states under the FSIA given the presence of many foreign states in the District and the relevant venue rules. Although many of these cases go to default judgments, some have ended up before the D.C. Circuit (and Judge Garland), often on interlocutory appeal per the collateral order doctrine. These cases require US judges to navigate complicated shoals — internationally, as one would expect (in terms of advancing US foreign policy priorities and protecting US bilateral relationships), but also domestically (in terms of managing potential Congressional-Executive discord).

By way of background, for much of history, foreign sovereigns enjoyed the privilege of virtually complete immunity from suit in domestic courts, including our own. This state of affairs is rooted in the fictive sovereign equality of nations. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983). As states began engaging in commercial activities around the turn of the last century, this uncompromising principle began to erode. In the so-called Tate Letter, 26 Dep’t State Bull. 984 (1952), the US State Department announced that it would henceforth adopt a “restrictive theory” of immunity, which would distinguish sovereign public acts (acts jure imperii) from commercial or proprietary acts (acts jure gestionis). In 1976, Congress subsequently codified the restrictive theory in the FSIA, which is now the sole avenue by which US courts obtain jurisdiction over foreign sovereigns. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992).

Under the FSIA, foreign sovereigns enjoy immunity from suit unless one of the statutory exceptions applies. These exceptions largely, but not exclusively, track the restrictive view of immunity as originally articulated in the Tate Letter. For example, and of particular relevance to Judge Garland’s jurisprudence as will be discussed, sovereign immunity is abrogated in suits in which:

  • “a foreign state has waived its immunity either explicitly or by implication” (the “waiver” exception).
  • “the action is based upon a commercial activity carried on in the United States by the foreign state” (the “commercial activity” exception).
  • “rights in property taken in violation of international law are in issue and that property … is present in the United States in connection with a commercial activity carried on in the United States by the foreign state” (the “expropriation” exception).
  • “money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment” (the “non-commercial tort” exception). This exception is, in turn, subject to its own exception for claims arising out of libel or slander so long as the commercial activity exception is not at issue. (See 28 USC § 1605(a)(5)(B)).

Recent amendments to the FSIA have proven to be more politically contentious, particularly when the Executive Branch seeks to freeze sovereign assets for its own purposes. By way of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress expanded the list of exceptions to sovereign immunity and opened the door to suits involving a range of violations of international law. After some subsequent congressional tweaking, the relevant provision now abrogates immunity in suits in which “money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” Three additional requirements must be met to proceed: The foreign state must be designated a state sponsor of terrorism; the foreign state must be given a reasonable opportunity to arbitrate the claim if the conduct in question occurred within the United States; and the claimant or victim must be a US national. This latter requirement was an issue in Oveissi v. Islamic Republic of Iran, 573 F.3d 835 (D.C. Cir. 2009), discussed below. State sponsors of terrorism are designated by the Secretary of State under Section 6(j) of the Export Administration Act and other statutory authorities. This has become a bit of a shrinking pool; at the moment, only Iran, Sudan, and Syria are so designated. Cuba was removed from the list in May 2015 with the normalization of bilateral relations.

Although this newest exception to sovereign immunity was designed to enable victims of grave human rights violations to hold deep-pocketed states liable, it does not always receive a warm welcome from the Executive Branch. Indeed, successive administrations have intervened to object to the attachment of sovereign assets to satisfy judgments, articulating a range of reasons: attachments remove a source of leverage against foreign states, they may cause the United States to violate its treaty obligations to respect the immunity of the diplomatic and consular property of other states and put the United States’ own property at risk of reciprocal action, and they may privilege some plaintiffs over other deserving victims. (See statements by Treasury Deputy Secretary Stuart Eizenstat, Defense Under Secretary for Policy Walter Becker Slocombe, and State Under Secretary Thomas Pickering during an Oct. 27, 1999 Senate Judiciary Committee hearing titled “Terrorism: Victims’ Access to Terrorist Assets”).

This Executive resistance — coupled with the scarcity of foreign assets in the United States to begin with — has made meaningful recovery difficult under the terrorism exception to immunity. Over the years, Congress has responded by liquidating frozen assets for the purpose of paying compensatory damages; appropriating funds to pay judgments, most recently in the Consolidated Appropriations Act of 2016 and via other legislative work-arounds, as in the Terrorism Risk Insurance Act of 2002 (TRIA), at issue in Bennett.

These statutory exceptions to immunity are exhaustive; if none applies, the suit is dismissed for want of subject matter jurisdiction, as in the case of Saudi Arabia v. Nelson. Many key terms within these exceptions are left undefined, which leaves courts with some latitude to apply the FSIA’s provisions to the factual scenarios before them. As the Supreme Court has noted in Nelson, US courts “do not have the option to throw up [their] hands” and must rather accept “judicial responsibility to determine what a ‘commercial activity’ is for the purposes of the Act.” Judge Garland has had occasion to undertake this responsibility with respect to several of these exceptions, as I will discuss in a follow-up post. (Steve Vladeck’s discussion of Judge Garland’s national security/Guantánamo docket is available here, while Deborah Pearlstein’s slightly different take is here.)