When the Sovereign Contracts: Troubling the Public/Private Distinction in International Law

Under current foreign sovereign immunity doctrine, sovereigns are not immune from suit when they engage in "private" acts, such as entering into contracts-in other words, when they act as participants in, rather than regulators of, the market. This Note argues that the distinction between a state's public and private acts is far less stable and clear-cut than it first appears. Many acts in which sovereigns engage are of a mixed nature. Choosing to see an act or transaction as essentially private or public often obscures other features that complicate that characterization. U.S. courts have applied foreign sovereign immunity law in such a way as to selectively recognize the private aspects of such transactions, thereby enabling private actors to bring foreign sovereigns into U.S. courts. This has disproportionately affected Global South nations, where the state is more likely to be involved in the economy and to enter into contracts with private parties to accomplish important sovereign aims. This is a dynamic that I call subordination through privatelaw adjudication . However, in the longer history of foreign sovereign immunity law, I also argue that simply expanding the category of public law cannot decisively end the subordination of Global South sovereigns in transnational and international law.