Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation

Green Bag 2D, Vol. 13, p. 9, 2009

Harvard Public Law Working Paper No. 10-05

16 Pages Posted: 10 Oct 2009 Last revised: 22 Dec 2014

See all articles by Curtis Bradley

Curtis Bradley

Duke University School of Law

Jack Landman Goldsmith

Harvard Law School

Abstract

For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.

Keywords: sovereign immunity, human rights litigation, alien tort statute

Suggested Citation

Bradley, Curtis and Goldsmith, Jack Landman, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation. Green Bag 2D, Vol. 13, p. 9, 2009; Harvard Public Law Working Paper No. 10-05. Available at SSRN: https://ssrn.com/abstract=1485667

Curtis Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Jack Landman Goldsmith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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