The Politics of ‘Suggestions of Immunity’: An Empirical Analysis of the State Department’s Sovereign Immunity Decisions from 1952 to 1977

Abstract

In a major shift of customary international law, in 1952 the United States adopted a restrictive theory of sovereign immunity. After this shift in policy, the State Department had the power to determine if a foreign government deserved a “suggestion of immunity” that would grant it relief from the jurisdiction of U.S. courts. In 1977, however, Congress stripped the State Department of this power due to concerns that political considerations were overshadowing the rights of plaintiffs. Despite the perfect opportunity that this period presents to study what considerations motivate American foreign policy, this topic has not been the subject of a single empirical study. As a result, I have created an original dataset of suggestions of immunity filed with the State Department from 1952 to 1977. After estimating a series of models, my results suggest that extending favors to NATO allies was a significant concern of the State Department during this period.