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FSIA and Holy See
On November 24, 2008, the United States Court of Appeals for the Sixth Circuit in O'Bryan et. al. v. Holy See, docket numbers 07-5078/5163, affirmed a decision of the United States District Court for the Western District of Kentucky at Lousville. Plaintiffs had brought an action against the Holy See, alleging its liability for sexual molestation suffered at the hands of Roman Catholic priests in the United States. The District Court had dismissed the claims in part, and confirmed that other grounds for defendant's liability remain.
The appellate court affirmed after discussing a variety of issues arising out of suits against foreign sovereigns. It ruled in favor of the Holy See as a foreign state within the meaning of the FSIA, refusing plaintiff's construction of the defendant entity as a somewhat hybrid sovereign and non-sovereign actor, the latter being liable for its actions as acta iure gestiones outside the scope of the FSIA.
Further, the court decided the commercial activity exception in 28 USC §1605 (a)(2) of the FSIA would not apply because the gravaman of plaintiff's claims was non-commercial. The FSIA tortious act exception in 28 USC §1605 (a)(5) would apply in part, however, to defendant's alleged misconduct, as it constitutes violations of the customary international law of human rights, neglicence and breach of fiduciary duty.
The key here is its issuance of a legislative text in 1962 that required, inter alia, bishops in the United States not to report child abuse to civil or criminal authorities.
The case offers an in-depth look into the very idea of foreign sovereign immunity from different angles. It also deals with some of the most difficult and contentious issues at the crossroads between law and the supremacy of political deliberations by pursuing the restrictive theory of sovereign immmunity in legislating the FSIA and its amendments. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.
Tue, / Embassy Law Link