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Foreign Sovereign Immunity and the Enforcement Dilemma: Impeding International Institutions Ability

Foreign sovereign immunity, the legal doctrine that bestows states with immunity from the enforcement of other states’ laws, is rooted in the principles of equality and mutual respect among nations. However, this doctrine often shields states from international consequences when they fail to fulfill their commitments and objectives. While there are exceptions to sovereign immunity, such as in cases of international law violations, many international institutions lack the means to enforce their judgements and decisions, relying on voluntary compliance from states. Moreover, political considerations frequently impede or obstruct these institutions from taking action against countries for certain violations, evidenced by the security council veto power held by China, France, Russia, the United Kingdom, and the United States within the United Nations System.

Although institutions like the International Criminal Court, and the World Trade Organization utilize enforcement mechanisms, these measures are frequently constrained and narrow in scope. For example, these organizations can use economic sanctions, which many times are more detrimental and do not result in any changes, or these organizations can utilize legal means. The International Criminal Court can find individuals, and governments, guilty of crimes such as human rights violations, and genocide, and maintains the ability to prosecute them. Although, even when found guilty the court lacks the ability to enforce these rulings, and relies on the cooperation of countries and voluntary acceptance of their rulings. As a result of this lack of enforcement mechanisms for international institutions smaller state actors may be targeted by international institutions and face more consequences such as aid withdrawal for failing to meet their obligations or an increased level of prosecution by the Criminal Court, due to their lack of strength and power. Meanwhile, larger state actors enjoy relative immunity due to their greater resources and autonomy. Consequently, international institutions face escalating difficulties in enforcing comprehensive solutions to issues that impact all states.

Attempts to amend foreign sovereign immunity have sparked controversy, as exemplified by the United States’ endeavors in 1990 to curtail immunity in cases of state-sponsored terrorism. Such initiatives encountered opposition from foreign states and international institutions, who expressed concerns about potential diplomatic complications and the potential exploitation of sovereign immunity by the United States. Recent attempts by the United States to limit sovereign immunity concerning China’s role in the coronavirus pandemic have prompted legal scholars to consider the role of civil liabilities as a means of enforcing international law, acknowledging that economic sanctions alone are insufficient as a foreign policy tool.

While economic sanctions should ideally have a more significant impact, historically, economic sanctions have not proven to be effective in resolving global issues. When economic sanctions were imposed on Russia in response to its 2022 invasion of Ukraine, they presented challenges to Russia’s financial and energy sectors, restricted access to Western technology and trade, and implemented broad sanctions targeting the overseas economic activities of Russian decision-makers. Despite these measures, the sanctions have been insufficient in curbing the Russian war against Ukraine and have even created additional international complications. Russia, being a vital global supplier of oil, natural gas, metals, and chemical gasses, has experienced international losses due to these sanctions. Moreover, countries with trade links to Russia have felt repercussions, leading to trade network and supply chain issues, which have contributed to a slowdown in global economic growth. In fact, the IMF reported a decline in global economic growth from 6% in 2021 to 3% in 2022. If economic sanctions were imposed on an even larger country that significantly contributes to global trade and economic growth, while also supporting smaller state actors, such sanctions would prove highly detrimental to the international sphere. For instance, implementing economic sanctions on China would severely disrupt international trade, hinder economic growth, and give rise to issues like rising commodity prices, which directly impede the economic growth of developing countries and undermine human rights. In light of the challenges associated with economic sanctions, policymakers must carefully consider the potential benefits, costs, and consequences of employing them as an enforcement tactic. It is crucial to explore a range of diplomatic, economic, and political tools in order to effectively address global issues.

One of the most pressing challenges linked to foreign sovereign immunity and the lack of enforcement by international institutions is the global climate crisis. While smaller state actors can face repercussions for non-compliance, the ability to impose consequences dissolves with larger state actors, despite their far more significant contributions to greenhouse gas emissions and the climate crisis. An example of the vast differences in emissions shows that in 2020 Mexico had 802 Million metric tons of Carbon Dioxide emissions, while the United States had 7.016 billion metric tons of Carbon dioxide emissions. The 2015 Paris Agreement, a legally binding treaty on climate change, established goals and commitments to reduce emissions and promote climate action and adaptation. However, the world's largest emitters, including China, the United States, the European Union, and India, have failed to meet these goals, highlighting the diminishing efficacy of the Paris Agreement. Similarly, Scotland’s failure to achieve its climate change objectives at COP26 reflects the limitations faced by international institutions in addressing global issues. Furthermore, it is crucial for international institutions to consistently maintain their authority over large state actors, irrespective of changes in political leadership or party affiliations. For instance, while the United States’ entry and exit from the Paris Climate Change Conference under different administrations increased the price of carbon for other countries while reducing its own, and massively reduced the amount of funding for developing countries hoping to curtail emissions, it also underscored the necessity of steadfastly enforcing pledges, avoiding inconsistency during periods of political transition.

These examples highlight the inherent challenges that arise when addressing global problems and the necessity for robust enforcement measures. International institutions must maintain the authority to impose legally binding actions on all states that fail to uphold their obligations. This ensures that consequences carry genuine weight, and effectiveness, and are treated with the utmost seriousness. While the Foreign Sovereign Immunity Act strives to safeguard the self-governance of all states, its coexistence with the dearth of enforcement mechanisms within international institutions hinders the international sphere from achieving enduring solutions to intricate global issues. Without the ability of international institutions to intervene and enforce compliance across all state actors, the question remains: how can problems confronting the global community be effectively resolved?

To cultivate international unity and tackle common objectives among all nations, the global system must possess the authority to enforce pledges and commitments among countries. This necessity grows increasingly urgent as the world grapples with pressing challenges such as climate change. International institutions need to wield greater influence over larger state actors to ensure the equitable and effective resolution of global issues becomes attainable, as political considerations and individual state goals will inevitably continue to influence decision-making.


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