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

61 Pages Posted: 5 Dec 2010 Last revised: 21 Dec 2014

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Laurence R. Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: May 18, 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.

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

Suggested Citation

Bradley, Curtis 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:

Curtis Bradley (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
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)


University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics