Foreign Official Immunity after Samantar

16 Pages Posted: 9 Jul 2011 Last revised: 13 Nov 2012

See all articles by Chimène Keitner

Chimène Keitner

University of California Hastings College of the Law

Date Written: August 11, 2011

Abstract

In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that civil immunity and criminal immunity are not fundamentally distinct. Under presence, I emphasize that a defendant who enters the forum state’s territory might justifiably have a weaker claim to conduct-based immunity than one who does not. Part III suggests some factors that should guide lower courts in determining an individual defendant’s entitlement to immunity going forward.

Keywords: Samantar v. Yousuf, foreign official immunity, jurisdiction, U.S. courts, state responsibility

Suggested Citation

Keitner, Chimène, Foreign Official Immunity after Samantar (August 11, 2011). Vanderbilt Journal of Transnational Law, Vol. 44, p. 843, 2011. Available at SSRN: https://ssrn.com/abstract=1876665

Chimène Keitner (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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