Publication Date

2010

Publication Title

The Supreme Court Review

Abstract

In Samantar v Yousuf,1 the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not apply to lawsuits brought against foreign government officials for alleged human rights abuses.2 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.”3 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), the body of international law that “results from a general and consistent practice of states followed by them rom a sense of legal obligation.”4 Not only were international law issues extensively briefed by the parties and amici, but the question of whether foreign officials are immune from suits alleging human rights violations had recently been extensively litigated in other national courts and international tribunals, and these decisions were brought to the Court’s attention.

Notwithstanding the Supreme Court’s inattention to the inter-national law backdrop in Samantar, CIL immunity principles are likely to be relevant to the development of the common law of foreign official immunity. The Court has taken account of CIL in related contexts and has endorsed a canon of statutory construction designed to avoid unintended breaches of CIL. Both Congress and the Executive Branch have also indicated that they consider CIL to be relevant to immunity, and the judiciary is usually attentive to the views and actions of the political branches when developing common law relating to foreign affairs.

There is also a rich and growing body of CIL materials that courts can draw upon. As we will explain, these materials show that CIL traditionally extended immunity to individual officials in proceedings in foreign courts for actions taken on behalf of their state. In the criminal context, this immunity has eroded over the past decade, with national courts outside of the United States increasingly exercising criminal jurisdiction over former officials, including heads of state, charged with human rights violations. No comparable erosion has yet occurred, however, in the civil context. Although a few decisions have embraced a human rights exception to immunity, the courts of several other countries have expressly declined to adopt such an exception. At the same time, the relationship between immunity and human rights law is still very much in flux, and inter-national tribunals currently are considering cases that concern this relationship.

The unsettled state of CIL raises important issues concerning the role and competence of U.S. courts as they develop the common law of foreign official immunity. On the one hand, they have an opportunity to participate in a global judicial dialogue over the proper balance between immunity and accountability and to shape international law’s future trajectory. On the other hand, the un-certain state of the law may indicate that U.S. courts should exercise caution before advancing an interpretation of CIL that may offend foreign governments or create foreign relations difficulties for the Executive Branch. Ultimately, as we will discuss, a variety of institutional and policy considerations are likely to shape the relevance of CIL to the post-Samantar common law of immunity.

The development of this body of common law immunity also implicates long-standing debates over the incorporation of CIL into federal common law. In the past, scholars who argued for such incorporation did so primarily to promote accountability for past human rights abuses and to expand the opportunities for litigating human rights claims in U.S. courts. Other scholars, however, challenged the federal adjudication of customary human rights norms on the basis of domestic considerations such as separation of powers. There may be a reversal of positions in the wake of Samantar. Commentators who previously opposed adjudication of CIL in U.S. courts may be favorably disposed to incorporating international immunity rules into the common law—a doctrinal move that could significantly narrow the scope of international human rights litigation. Conversely, commentators who previously supported application of CIL by U.S. courts may now oppose the incorporation of CIL in this context, or argue that it is too indeterminate, and urge courts to apply instead the immunity principles of domestic civil rights law—principles that may facilitate holding foreign government officials accountable for human rights abuses.

This article self-consciously avoids taking a position on these theoretical debates or on the ultimate question of the proper scope of foreign official immunity. Instead, we seek to make three contributions. First, we set forth a case for CIL’s relevance to the post-Samantar common law of immunity that is not dependent on a single theoretical perspective regarding the domestic status of CIL. Second, we present what we believe is a relatively dispassionate assessment of the evolving CIL landscape, an assessment that is aided by the fact that we ourselves have somewhat differing perspectives about the proper role of international law in general and in human rights litigation in U.S. courts in particular. Third, by emphasizing institutional considerations, we are able to isolate 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.

The article proceeds as follows. Part I briefly discusses the history of foreign sovereign immunity in the United States. It then reviews the facts, procedural history, and decision in Samantar, highlighting the international law backdrop of the case. Part II reviews the CIL of foreign official immunity and recent national and international court rulings. Part III returns to the United States. It explains how the relevance of CIL immunity rules will depend not only on international law’s relationship to federal common law, but also on other considerations such as the degree to which U.S. courts should be active players in the development of CIL, the authority of the Executive Branch to affect ongoing litigation, and the policies reflected in existing statutes.

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