The case of the day is Livnat v. Palestinian Authority (D.C. Cir. 2017). In 2011, Ben-Yosef Livnat was killed, and Yitzhak and Natan Safra were wounded, in a terrorist attack at Joseph’s Tomb, a holy site in Nablus. The Livnat and Safra families sued the Palestinian Authority, alleging that the terrorists in the incident were the security guards the PA had hired to guard the site. The claims were under the Anti-Terrorism Act, 18 U.S.C. § 2333, and for common-law torts. The PA moved to dismiss for lack of personal jurisdiction. The district court granted the motion, and the plaintiffs appealed.

Ordinarily, there would be no personal jurisdiction in a case such as this, where the defendant had no real connection with the forum. But the rule is that foreign states have no rights under the Due Process Clause, because they are not “persons” in the relevant sense. If a claim against a foreign state is within an exception to the FSIA’s rule of immunity, then the foreign state is subject to the court’s personal jurisdiction, no matter what the outcome would be under an ordinary Due Process analysis.

Both sides in the case took the position that Palestine was not a state. We’ve seen examples of this surprising and perhaps cynical view, on the part of the Palestinian authorities, before. The question was whether the same rule that applies to states should nevertheless apply to the PA because it “functions as a government.” The court held that the key to the rule that US states and foreign states are not persons for purposes of the Due Process Clause is sovereignty.

The frontispiece of Hobbes's Leviathan

Who says the sovereign is not a person? Credit: Josh Petersen

There is a semantic component: the word “person,” the court said, simply doesn’t include the sovereign. Also, foreign states are the juridical equals of the United States with privileges on the international plane based on comity and international law. Persons who are not the juridical equals of the United States may need the protections of the Due Process Clause. Finally, granting due process rights to foreign states could raise practical problems and give foreign states standing to sue the United States for essentially political decisions that affect foreign states. Applying these considerations, the court held that the PA was not a sovereign and therefore did have Due Process rights. Applying ordinary Due Process considerations, the court held that there was no personal jurisdiction.

As I mentioned in my discussion of Puerto Rico v. Sánches Valle, I’m wary of constitutional tests that rely on notions of sovereignty. Sovereignty is a notoriously difficult concept, particularly if we are thinking about it from the perspective of US domestic law rather than from the perspective of international law. I haven’t put it quite like this before, but I think that from the perspective of US law, we can say that the United States is sovereign. Things start to get fuzzy when we ask about the status of the US states, and US territories, such as Puerto Rico, a sovereign. And when we turn to foreign countries, it’s difficult to say anything coherent about foreign sovereigns. Is it really just the lack of US recognition that makes Palestine a non-sovereign? If the government recognized Palestine as a state, would Palestine suddenly be a sovereign even if no facts changed on the ground? Maybe more fundamentally, what makes a sovereign a sovereign, in the sense we are talking about, is its ability to say that it will not be subject to the jurisdiction of the US courts without its own consent. The US states have some sovereignty in this sense, though not absolute sovereignty. Foreign states have no sovereignty in this sense: their immunity from the jurisdiction of the US courts can be overridden by the US Congress (though overriding their immunity might violate international law). I think this is the kind of observation that Ralph Janik had in mind in his recent piece at Opinio Juris about Hegel:

Hegel’s monism is nowadays generally seen as a relic of the past. In particular Hans Kelsen, already in the first edition of his Pure Theory of Law from 1934, forcefully argued that “a monistic construction based on the primacy of the legal system of one’s own state is completely incompatible with the notion of plurality of coordinate states, equally ordered and legally separated from each other in their spheres of validity … the primacy of the state legal system implies in the end not only the denial of the sovereignty of all other states, and thereby their legal existence as states (in terms of the dogma of sovereignty), but also the denial of international law.”

Anyway, I’m suggesting that making constitutional doctrines turn on sovereignty, either in the domestic context (the US states) or in the international context (foreign states) is not ideal, because defining sovereignty is so slippery and difficult.