62 Pages Posted: 17 Apr 2011 Last revised: 26 May 2011
The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Sovereign Immunities Act (“FSIA”). This statute does not apply to the immunity of individual foreign officials, however, as the Court recently held in Yousuf v. Samantar, 130 S.Ct. 2278 (2010). Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims the constitutional power to make individual immunity determinations on a case-by-case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination.
This article argues that the executive branch lacks such “lawmaking” power. The text and structure of the Constitution, functional and historical arguments, the Court’s case law, and implied congressional authorization are all examined and rejected as possible grounds for the power asserted by the executive branch. Instead, the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds. Federal common law should be constrained in some respects, however, by the content of the FSIA, by customary international law, and by the views of the executive branch on certain discrete issues.
Keywords: immunity, international law, separation of powers, Samantar, federal common law, federalism, foreign relations
JEL Classification: K33, K10, K19
Suggested Citation: Suggested Citation
Wuerth, Ingrid B., Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department. Virginia Journal of International Law, Vol. 51, No. 4, p. 1, 2011; Vanderbilt Public Law Research Paper No. 11-24. Available at SSRN: https://ssrn.com/abstract=1811604