Between Law and Diplomacy: The Conundrum of Common Law Immunity

Abstract

Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those that cannot has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct is challenged in U.S. courts, and who do not fall within existing statutes. The original research and analysis offered in this Article provides the necessary foundation for approaching, and ultimately answering, persistent questions about what common law immunity entails.

This research reveals that the deferential judicial posture of the 1940s was an aberration, and that courts retain the authority to assess the rationales for varying degrees of judicial deference in different types of cases. Unpacking these cases points strongly towards the conclusion that, although the Executive Branch remains best situated to assess the potential foreign policy consequences of pending litigation, courts are ultimately responsible for making jurisdictional determinations, including decisions regarding common law immunity.

Keywords: jurisdiction, immunity, fsia, samantar, executive branch, foreign relations