Academic journal article Harvard Law Review

Interpreting Silence: The Roles of the Courts and the Executive Branch in Head of Head of State Immunity Cases

Academic journal article Harvard Law Review

Interpreting Silence: The Roles of the Courts and the Executive Branch in Head of Head of State Immunity Cases

Article excerpt

The resolution of head of state immunity claims is often effective, even if not particularly principled. In many cases, the executive branch--speaking through the State Department --provides a "suggestion of immunity" on behalf of a putative head of state that the courts treat as legally dispositive. In some suits, however, the State Department does not communicate its views, leaving the courts to determine whether head of state immunity should bar the suit or individual claims made by plaintiffs. Unsurprisingly, courts are not adept at analyzing as precedent heavily politicized State Department suggestions of immunity in prior cases when determining overarching State Department policy, and the entire judicial enterprise in such situations is fraught with the peril of impacting American foreign relations. Not much has changed in the twenty-five years since one scholar asserted that "[t]he law of head of state immunity is undeveloped and confused." (1)

This Note analyzes various possibilities for producing outcomes that are both more efficient and more likely to emphasize the institutional strengths of the courts and the executive branch than is the current legal regime, which often forces courts to decide claims of head of state immunity without the guidance of the State Department. Part I analyzes current head of state immunity doctrine and its evolution in American courts over the past 200 years. It concludes that the current doctrine is inconsistent and that it rests on politicized precedents that are difficult for courts to apply in a nonpoliticized manner. Part II discusses the Supreme Court's recent decision in Samantar v. Yousuf, (2) in which the Court held that the Foreign Sovereign Immunities Act of 1976 (3) (FSIA) does not apply to individuals. Although most lower courts had already concluded that head of state immunity and the FSIA were independent bodies of law, Samantar illustrates the multifarious and nebulous scenarios in which claims of head of state immunity can arise and demonstrates the unsatisfactory state of the current doctrine. Part II further argues that the increasingly non-state-based international system and the simultaneous expansion of federal court jurisdiction in cases with potentially strong foreign affairs repercussions together suggest that complex cases like Samantar will put more strain on head of state immunity doctrine in the future. Part III offers possible improvements to the status quo, including a statutory solution resembling the FSIA, an administrative solution in which the State Department would publish head of state immunity guidelines, and a legal presumption regime under which the courts would introduce a rebuttable presumption of the applicability or inapplicability of immunity. Ultimately, this Note concludes that a presumption against the applicability of head of state immunity is the solution most likely to allow courts to make principled decisions, engage the State Department in dialogue, and expedite the resolution of cases. Nonetheless, any of the proposed solutions would be a positive development in comparison to the current state of the doctrine.


Generally, head of state immunity protects foreign heads of state from the jurisdiction of domestic courts according to the law of the domestic state. (4) The underlying purpose of the doctrine is based "on the need for comity among nations and respect for the sovereignty of other nations." (5) Head of state immunity is a particular category of the numerous immunities that potentially apply to the acts of foreign sovereigns and their agents. (6) Among these other sources of immunity are foreign sovereign immunity as defined in the FSIA, diplomatic immunity, (7) and functional immunity. (8) Foreign sovereign immunity implies a broader form of immunity concerning nations themselves as legal actors and their property. (9)

A. Historical Origins and Evolution of Immunities in American Law

Although these several doctrines have diverged over the past 200 years, the 1812 Supreme Court case The Schooner Exchange v. …

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