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The Green Bag


We recently argued in these pages that international law treats official-capacity suits brought against a foreign state’s officers as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses.1 This immunity regime under international law differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. While these officers can invoke individual immunity doctrines, typically qualified immunity, the overall immunity available in domestic officer suits is narrower than the immunity available under international law for suits against foreign officers.

As best we can tell, no one has ever explained why the immunity rules that apply to suits against foreign officials under international law differ from the immunity rules that apply to suits against domestic officials under U.S. domestic law. This essay attempts to provide such an explanation. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.

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