The Scope of Sovereign Criminal Immunity: Instrumentalities Under the Foreign Sovereign Immunities Act

MEGAN Q. LIU*

For over four decades since its enactment, the Foreign Sovereign Immunities Act (FSIA) has governed sovereign immunity in civil actions. There is no question that Congress set out a comprehensive framework to address claims for immunity in civil contexts. Yet courts must now determine whether foreign sovereign entities can raise similar claims in criminal contexts. With no guidance from the Supreme Court, lower courts have diverged in their answers to this question. Courts are divided on a number of issues: not only on whether the FSIA’s general grant of immunity applies in criminal proceedings, but also if and how the enumerated exceptions apply.

This lacuna matters. Foreign sovereigns and their instrumentalities increasingly engage in corporate crime and economic espionage. Despite its pressing importance, the doctrine of sovereign criminal immunity is underdeveloped in legal literature. This Note seeks to remedy the gap. It argues that the FSIA does not extend to criminal cases. Instead, the scope of sovereign criminal immunity is better defined through a separate federal statute, 18 U.S.C. § 3231, which provides courts with broad jurisdiction over all offenses against the laws of the United States. This Note proposes a new statutory framework for criminal immunity and calls for greater obligations for all three branches of government.

* J.D. Candidate, 2022, Columbia Law School. Thank you to the staff of the Journal for their editorial assistance, to Emilie Sims for helpful comments and her friendship, and to the Hon. Katherine Polk Failla for teaching that inspired this Note. I owe my deepest debt of gratitude to Dan Richman, who provided incisive and invaluable guidance throughout the writing process. I end with thanks to my Mom, Dad, Nana, and Yaya for their biased love and support. All errors are my own.