Between Law and Diplomacy: The Conundrum of Common Law Immunity

72 Pages Posted: 6 Jun 2019 Last revised: 11 Oct 2019

See all articles by Chimène Keitner

Chimène Keitner

University of California Hastings College of the Law

Date Written: May 17, 2019


Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts, and those that cannot, has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct is challenged in U.S. courts, and who do not fall within existing statutes. To date, the contours of common-law immunity have only been addressed at the district and circuit court levels. The conundrum thus persists: how to define which claims are barred by immunity, and who decides?

This Article offers an original historical account of strategies used by litigants, judges, legislators, and executive branch officials to navigate tensions between rules-based approaches to jurisdictional immunity administered by the judiciary and case-by-case approaches administered by the political branches. Part I excavates the practices and understandings of those involved in these cases, as the Executive Branch disclaimed the authority to instruct courts to dismiss claims on immunity grounds. Part II continues the historical narrative by exploring two pivotal twentieth-century cases involving foreign ships, in which the Executive Branch appears to have advanced — and courts ultimately accepted — a more robust political role. Although cases against foreign officials appear to have been relatively few and far between during the twentieth century, the advent of modern human rights litigation inaugurated a new wave of cases against foreign officials for acts including torture and genocide. The "common law immunity" identified (but not elucidated) by the Samantar court governs whether U.S. courts have jurisdiction in these cases. The original research and analysis offered in this Article provides the necessary foundation for approaching, and ultimately answering, persistent questions about what common law immunity entails.

Keywords: jurisdiction, immunity, fsia, samantar, executive branch, foreign relations

Suggested Citation

Keitner, Chimène, Between Law and Diplomacy: The Conundrum of Common Law Immunity (May 17, 2019). Georgia Law Review, Forthcoming; UC Hastings Research Paper No. 348. Available at SSRN:

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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