The “Common Law Regime” of Foreign Sovereign Immunity: The Actual Possession Rule in Admiralty
It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a “common-law regime” that pre-existed the Foreign Sovereign Immunities Act (FSIA), this article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has been hotly disputed. Resolution of this question has broad implications, including the measure of deference that should be given to Executive Branch positions and the extent to which foreign sovereign interests should be accommodated in all forms of collective proceedings.