Suing Foreign Officials in U.S. Courts: Upholding Separation of Powers by Limiting Judicial Abrogation of Immunity

By Hogarth, Sarah P. | Notre Dame Law Review, May 2014 | Go to article overview

Suing Foreign Officials in U.S. Courts: Upholding Separation of Powers by Limiting Judicial Abrogation of Immunity


Hogarth, Sarah P., Notre Dame Law Review


INTRODUCTION

As human rights atrocities continue to shock our world media, the international community is calling for ways to hold accountable the government actors who commit egregious acts of terror against their people. (1) Advocates have turned to U.S. courts as one arena in which violations of human rights may be vindicated. (2) Yet, no matter how commendable the fight for international human rights may be, there remains a fundamental jurisdictional bar to these suits: sovereign immunity.

Although sovereign immunity for foreign states has been codified in the Foreign Sovereign Immunities Act (FSIA), (3) the Supreme Court held in Samantar v. Yousuf that the FSIA does not codify immunity with respect to foreign officials or heads of state. (4) The Supreme Court opined, however, that a suit against a foreign official "may still be barred by foreign sovereign immunity under the common law." (5) The Supreme Court's holding in Samantar left it to the lower courts to decide how foreign official immunity should be treated under the "common law." (6) On remand, the Fourth Circuit concluded that foreign officials "are not entitled to foreign official immunity for jus cogens violations [of international law]," (7) which include atrocities such as genocide, (8) torture, and extrajudicial killing. (9) The court reasoned that because foreign officials may only claim immunity for acts "arguably attributable to the state," and "jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign," foreign officials are not entitled to immunity for jus cogens violations. (10) This conclusion, however, poses considerable problems, both constitutionally and pragmatically. Most importantly, submitting foreign officials to the jurisdiction of U.S. courts significantly affects U.S. foreign relations--an area delegated by the Constitution to the political branches. (11)

This Note will propose the constitutional framework courts should implement when suits are brought against individual foreign officials post-Samantar, specifically arguing that the constitutional allocation of foreign affairs powers requires U.S. courts to broadly insulate foreign officials from suit absent authorization from a political branch. (12) Part I examines the law of nations and its incorporation into the specific foreign relations powers delegated by the Constitution to the political branches, highlighting that the power to affect relations with foreign sovereigns resides in the political branches. Part II explains the Supreme Court's development of foreign sovereign immunity and the act of state doctrine--which were both informed by the law of nations--leading up to its decision in Samantar. Part III analyzes Samantar after remand, with particular emphasis on the Fourth Circuit's judicially created abrogation of immunity for foreign officials when plaintiffs allege violations of jus cogens norms of international law. This Part also describes the considerable problems, particularly constitutionally but also pragmatically, with recognition of a judicially created jus cogens exception to immunity.

Part IV proposes the constitutional framework under which analysis of a foreign official's amenability to suit should proceed. Specifically, this Note argues that the Constitution itself requires U.S. courts to abstain from entering a judgment against current and former officials of recognized foreign sovereigns, absent express authorization from a political branch. Therefore, the Fourth Circuit's judicially created abrogation of immunity for allegations of jus cogens violations runs afoul of the separation of powers because it usurps the constitutionally delegated powers of the political branches to shape U.S. foreign relations. Courts should first employ two separate immunity doctrines in suits involving foreign officials: status-based immunity, which bars suits against sitting heads of state and foreign officials, and conduct-based immunity, which bars suits for acts committed by officials in their official capacities. …

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