One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade Organization; the growing influence of nongovernmental organizations; the emergence of a new global economy; and the formation of a worldwide consumer culture, to name just a few. The law, it is argued, must adapt.
The decline of the nation state is, of course, the premise that underlies this conference. I question that premise. In my view, the decline of the nation state is greatly exaggerated. There are good reasons to believe that, contrary to the conventional wisdom, the nation state will remain "the building block of international relations" for the foreseeable future. Indeed, the force of nationalism around the world, particularly among groups that do not yet have their own states, suggests that the next century will see many new entities asserting statehood and seeking admission to the community of nations.
An increase in the number of entities claiming to be states has the potential to implicate an interesting and largely unexplored question of United States jurisdiction. The Foreign Sovereign Immunities Act of 1976 (the "FSIA") confers on United States courts jurisdiction of actions against a "foreign state." But what if the "foreign state" is a new one that the President has not recognized? Would jurisdiction exist in those circumstances? I argue in this Article that, under the FSIA, United States courts have no jurisdiction of actions against an unrecognized foreign state. I argue further that this reading of the FSIA comports with sound policy.
Movsesian, Mark L., "The Persistent Nation State and the Foreign Sovereign Immunities Act" (1996). Faculty Publications. 112.