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International Law and the U.S. Common Law of Foreign Official Immunity

Curtis A. Bradley

Duke University School of Law

Laurence R. Helfer

Duke University School of Law

May 18, 2011

Supreme Court Review, p. 213, 2011

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits "may still be barred by foreign sovereign immunity under the common law". At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the immunity of foreign officials under customary international law ("CIL").

In this Article, we explain why, notwithstanding the Supreme Court’s inattention in Samantar to the international law backdrop of the case, CIL immunity principles are likely to be relevant to the development of the post-Samantar common law of immunity. In considering the relationship between CIL and common law immunity, the Article makes three contributions. First, it sets forth a case for CIL’s relevance that is not dependent on a single theoretical perspective regarding the domestic status of CIL. Second, it presents a balanced assessment of the rapidly evolving CIL landscape, noting in particular the erosion of immunity protections for human rights violations in criminal proceedings and the lack of a similar erosion - at least so far - in civil suits for damages. Third, by emphasizing institutional considerations rather than arguing for a particular outcome, it isolates and analyzes particular variables - such as the views of the Executive Branch and the policies embodied in domestic statutes - that will shape how CIL affects the common law of immunity after Samantar.

Number of Pages in PDF File: 61

Keywords: International law, customary international law, CIL, foreign sovereign immunities act, FSIA, foreign official immunity, Executive Branch, jus cogens, international crimes, universal jurisdiction, federal common law, U.S. Supreme Court, Samantar, Alien Tort Statute, ATS, Torture Victim Protection Act

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Date posted: December 5, 2010 ; Last revised: December 21, 2014

Suggested Citation

Bradley, Curtis A. and Helfer, Laurence R., International Law and the U.S. Common Law of Foreign Official Immunity (May 18, 2011). Supreme Court Review, p. 213, 2011. Available at SSRN: http://ssrn.com/abstract=1719707

Contact Information

Curtis A. Bradley (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
Laurence R. Helfer
Duke University School of Law ( email )
210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)
HOME PAGE: http://law.duke.edu/fac/helfer/
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