Academic journal article Vanderbilt Journal of Transnational Law

Foreign Official Immunity after Samantar: A United States Government Perspective

Academic journal article Vanderbilt Journal of Transnational Law

Foreign Official Immunity after Samantar: A United States Government Perspective

Article excerpt

TABLE OF CONTENTS

I.   THE WORLD BEFORE SAMANTAR

II.  SAMANTAR AND ITS IMPLICATIONS

III. THE EMERGING POST-SAMANTAR PROCESS
     A. Five Tenets of Official Immunity Practice
     B. Non-Samantar Status Issues
     C. Non-Samantar Procedural Issues
     D. The Sound of Silence

I am delighted to speak here at Vanderbilt regarding the U.S. Government's perspective on Foreign Official Immunity after Samantar v. Yousuf. (1) In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, (2) but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court's decision in Samantar and its implications; and third, the State Department's "New Samantar Process," which has been emerging since the Supreme Court's decision--focusing, in particular, on distinguishing what we call Samantar issues from non-Samantar issues, the effect of a State Department suggestion of immunity, and the effect of State Department silence with respect to a foreign official's claim of immunity.

I. THE WORLD BEFORE SAMANTAR

As almost every American international lawyer knows, the world before the Foreign Sovereign Immunities Act was one in which the U.S. Executive Branch was long considered the appropriate body to determine official immunity by providing courts with so-called suggestions of immunity. The State Department's practice regarding foreign official immunity grew out of its historical practice regarding foreign sovereign immunity. The 1812 decision in The Schooner Exchange v. McFaddon set out the early framework for foreign sovereign immunity, whereby wrongs perpetrated by foreign sovereigns were recognized as appropriate "for diplomatic, rather than legal," resolution. (3) Due to the potentially significant foreign policy consequences of subjecting another sovereign state to suit in our courts, the courts looked to the "political branch of the government charged with the conduct of foreign affairs" to decide whether immunity should be recognized. (4)

Traditionally, the State Department provided the judiciary with suggestions of immunity, based upon the Department's judgments regarding customary international law and reciprocal practice. (5) Before 1952, the State Department followed a theory of absolute foreign sovereign immunity for friendly sovereigns. Under that doctrine, "a sovereign cannot, without [its] consent, be made a respondent in the courts of another sovereign" regardless of the nature of the acts alleged to have been committed. (6) The Department would file "suggestions of immunity" with the court, invoking considerations of international law and international comity to request sovereign immunity in particular cases, and the U.S. courts generally gave absolute deference to those suggestions. (7) As the State Department's practice with regard to suggestions of immunity evolved over time, courts came to adopt a two-track process, under either track looking to State Department policy to see whether official immunity was appropriate. Under one track--which I will call the "suggestion" track--if the State Department offered a suggestion of immunity, the court would allow that immunity and dismiss the case. Under the second track--which I will call the "silence" track--if the State Department stayed silent in a case where a foreign official's immunity was at issue, the court would decide on its own "whether all the requisites for such immunity existed," considering "whether the ground of immunity is one which it is the established policy of [the State Department] to recognize." (8)

In 1952, Acting Legal Adviser of the State Department, Jack Tate, (9) sent a famous letter to the Acting Attorney General that became known as the "Tate Letter. …

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