International Arbitration ♦ Online 65 Va. J. Int’l L. Online 1 (2024)

Serving Sovereigns: In Republic of Sudan v. Harrison, the Supreme Court Maintained the Inviolability of Foreign Embassies Against Service of Process Despite the FSIA Anti-Terrorism Exception’s Remedial Goals

JEFFREY A. VAN DETTA

What has Congress done—and not done—to assist the victims of state-sponsored terrorism in winning and collecting damages judgments against sponsors of international terrorism? The question once more had to be put to the U.S. Supreme Court because of unclear statutory language—which gave an answer that sends a case arising out of the Sudanese-sponsored terrorist bombing of the U.S.S. Cole from a multimillion-dollar default judgment back to square one. The case turned on acquiring personal jurisdiction over the Sudan in an American court under the Foreign Sovereign Immunities Act (FSIA) anti-terrorism exception. In Republic of Sudan v. Harrison, two titans of textualism—Justices Samuel Alito and Clarence Thomas—engaged in a duel of words and ideas about their shared statutory faith—textualism as the primary mode of statutory interpretation. The relevant FSIA provision, 28 U.S.C. § 1608(a)(3), permits service “by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” To the critical question in the case—“whether service under Section 1608(a)(3) may be accomplished by requesting that the clerk mail the service package to the embassy of the foreign state in the United States, if the papers are directed to the minister of foreign affairs, or whether Section 1608(a)(3) requires that process be mailed to the ministry of foreign affairs in the country concerned”—Justice Alito’s textualism led to a hard ‘no’ on the first alternative and a hard ‘yes’ on the second, whereas Justice Thomas’ textualism led to permissive ‘yes’ answers as to both alternatives. This schism in wielding the ascendant mode of statutory interpretation on the Court creates a crisis of confidence in the Court’s most basic function, and calls into question the viability of the textualist enterprise. The flaws in textualism revealed in Harrison militate for the reinvigoration of the more flexible and time-honored approach of “dynamic statutory interpretation” through “practical reasoning” as the preferred tool the Court must use to retain consistency and, ultimately, its legitimacy.