Academic journal article Proceedings of the Annual Meeting-American Society of International Law

International Human Rights Law, Foreign Sovereign Immunity, and National Courts

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

International Human Rights Law, Foreign Sovereign Immunity, and National Courts

Article excerpt

This panel was convened at 9:00 a.m., Thursday, March 25, by its moderator, Curtis A. Bradley of Duke University School of Law, who introduced the panelists: Michael J. Edney, of Gibson, Dunn & Crutcher LLP; Rosanne van Alebeek, of the University of Amsterdam's Center for International Law; Sarah Cleveland, of the U.S. Department of State; and Samuel Estreicher, of New York University.*

* Sarah Cleveland and Samuel Estreicher did not submit remarks for the Proceedings.


As its title suggests, this panel considered the relationship between sovereign immunity and international human rights norms in national courts, particularly in civil suits seeking damages.

At the time of the panel, this relationship was at issue in two widely discussed pending cases--one in the U.S. Supreme Court and the other in the International Court of Justice. The case in the Supreme Court was Yousuf v. Samantar. (1) This case involved a suit brought under the Alien Tort Statute and the Torture Victim Protection Act against a former highlevel official of the Somali government for atrocities committed by the Somali military during the 1980s. The defendant argued that the suit was barred by the Foreign Sovereign Immunities Act, but the U.S. Court of Appeals for the Fourth Circuit had held that the Act does not apply to suits against individual officials and that, even if it did, it would not apply to suits against former officials. (2)

The case in the International Court of Justice was Germany v. Italy. (3) Germany was challenging a series of decisions in Italian courts in which the courts have awarded damages to victims of Nazi war crimes during Germany's occupation of Italy between 1943 and 1945. The most prominent of these decisions is the Ferrini v. Germany decision from 2004, which involved claims against Germany relating to the deportation of an individual from Italy to Germany to perform forced labor. (4) The court in Ferrini reasoned that a state's jurisdictional immunity in another nation' s courts does not extend to conduct that constitutes an international crime. Germany argues that there is in fact no such exception to sovereign immunity under customary international law.

We had four very well-qualified panelists to address this topic. In the order in which they spoke, the panelists were as follows:

Michael Edney, a lawyer at Gibson, Dunn & Crutcher who authored an amicus brief on behalf of several former U.S. attorneys general in support of the defendant in the Samantar case;

Rosanne van Alebeek, an assistant professor at the Amsterdam Center for International Law at the Amsterdam Law School, and author of a 2008 book, The Immunity of States and Their Officials in International Criminal Law;

Sam Estreicher, the Dwight D. Opperman Professor of Law at NYU, and an expert on U.S. foreign relations law as well as employment law, and someone who has been involved in Alien Tort Statute litigation; and

Sarah Cleveland, then-Counselor on International Law in the Legal Advisor's Office of the U.S. State Department, and also the Louis Henkin Professor in Human and Constitutional Rights at Columbia Law School.

Two of the panelists--Michael Edney and Rosanne van Alebeek--prepared written remarks for these Proceedings.

([dagger]) Richard A. Horvitz Professor, Duke Law School.

(1) 552 F.3d 371 (4th Cir. 2009), cert. granted, No. 08-1555 (Sept. 30, 2009).

(2) For additional discussion of the issues posed by this case, see Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 GREEN BAG 2D 9 (2009); Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity and Domestic Officer Suits, 13 GREEN BAG 2D 137 (2010).

(3) See Jurisdictional Immunities of the State (F.R.G.v. Italy), 2008 I. …

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