The East Asian Legal Studies Program: A Legacy Will Never Be Forgotten

The immunity of foreign officials from legal proceedings in U.S. courts has drawn significant attention from scholars, advocates, and judges in the wake of the Supreme Court’s decision in Samantar v. Yousuf, 130 S.Ct. 2278 (2010), which held that foreign official immunity is governed by the common law rather than the Foreign Sovereign Immunities Act (FSIA). The common law of foreign official immunity, which the Samantar Court did not define, operates at the intersection of international law and domestic law, and it implicates the constitutional separation of powers between the executive and judicial branches. Conflicting visions of the substance and process of common law immunity have already emerged in the wake of the Samantar opinion, and will continue to compete until the Supreme Court revisits this issue in a future case. At stake is not only the ability of suits to proceed against foreign officials, but also the relationship between the executive branch and the judiciary in matters affecting foreign affairs. The original research presented in this Article yields two striking observations. First, a claim that the defendant acted in his official capacity did not operate as an automatic barrier to adjudication on the merits; foreign officials who were neither diplomatic officials nor heads of state were “on the same footing” as any other foreigner with respect to their “suability.” Second, the Executive believed that it did not have constitutional authority to instruct a court to dismiss a private suit on immunity grounds. Although twenty-first century advocates might make policy arguments for blanket immunity or absolute Executive discretion, such choices are not consistent with — let alone compelled by — the eighteenth-century practices and understandings recovered here.

International events since the landmark Pinochet case, increased human rights advocacy, efforts at a culture of accountability, as well as the recent pro-democratic up-rising in the Arab states sustain impetus for the consideration of Head of state immunity in international law.

2011

The American Journal of International Law, 1985

European Journal of International Law, 2014

2012

The present contribution stems from a number of judicial decisions concerning immunity of State officials from foreign domestic jurisdiction, with specific regard to criminal jurisdiction. In particular, the article aims at analysing current trends concerning immunity of State officials from foreign domestic jurisdiction. In order to do so, an analysis of the customary rules concerning immunity of State officials, either personal or organic, is sketched out first of all, also taking into consideration the recent work of the International Law Commission on the topic in point. Subsequently, international and domestic case law are dealt with. In particular, the analysis considers the stance taken by international as well as domestic courts with regard to organic immunity in cases of international or common crimes. Lastly, some conclusions are drawn, also pointing towards some small openings in current case law so as to suggest a possible balance between competing claims.