Officially Immune? A Response to Bradley and Goldsmith

Abstract

Curt Bradley and Jack Goldsmith have recently proposed applying the Foreign Sovereign Immunities Act of 1976 (FSIA) to suits against current and former foreign officials for actions taken in their official capacity, including suits for human rights violations. They appeal to three basic sources of support for their proposal: logic, policy, and international law. In this brief essay, I examine each of these sources in turn. I conclude that these sources do not support reading the FSIA to encompass suits against natural persons, even when such persons have acted under color of foreign law. Current and former foreign officials should continue to invoke the well-established sources of immunity that they already have under relevant treaties, customary international law, and the common law, without creating the myriad problems associated with forcing individuals into the ill-fitting text of the FSIA.

Keywords: sovereign immunity, official capacity, Yousuf v. Samantar, Foreign Sovereign Immunities Act