The Scholar: St. Mary's Law Review on Race and Social Justice


Altercations between Border Patrol agents and nationals along the United States-Mexico border continue to reveal a trend of disproportionate use of force. This often results in death and a lack of justice in American courts. To hold the American government accountable for the actions of their agents, the United States should adopt a policy of waiving its sovereign immunity in cases where there have been violations of fundamental human rights.

The foreign sovereign immunity doctrine states a foreign sovereign cannot be brought into a United States court without first waiving its sovereign immunity from suit. With this, the United States is precluded from examining the acts of a foreign nation within their territory. This contributes to the idea that every sovereign is on an equal standing within the international community. These protections award States the right to invoke sovereign immunity when challenged in foreign courts, even for the most serious allegations.

While the reluctance to waive sovereign immunity is understandable, the United States already recognizes several instances where a sovereign may not invoke immunity. Thus, the same sentiment should be extended to the interactions taking place at the border. Violations of extrajudicial killings should be provided redress by the American government given that the killings have all been at the hands of a member of the executive branch of government. Violations of jus cogens norms, including that of murder, should not be ignored by the American government through the invocation of sovereign immunity. Rather, the government should take responsibility and provide effective remedies to victims, both through compensatory damages and policy that would lead these violations to be ceased.

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