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Published online by Cambridge University Press: 15 January 2021
For more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between an “effect-of-judgment” approach that would confer immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state, and a broader “nature-of-act” approach that would confer immunity whenever the plaintiff's case is challenging conduct carried out on behalf of the state. The Comment argues in favor of the nature-of-act approach and explains why analogies in this context to domestic civil rights litigation are misplaced.
1 See 560 U.S. 305 (2010).
2 See, e.g., id. at 324 (“Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law.”).
3 See infra text accompanying notes 44–45.
4 Restatement (Second) of the Foreign Relations Law of the United States § 66(f) (1965).
5 See, e.g., Akande, Dapo & Shah, Sangeeta, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, 21 Eur. J. Int'l L. 815 (2010)CrossRefGoogle Scholar.
6 For a detailed account of the Pinochet decision, see Bradley, Curtis A. & Goldsmith, Jack L., Pinochet, and International Human Rights Litigation, 97 Mich. L. Rev. 2129 (1999)CrossRefGoogle Scholar.
7 See Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, [2006] UKHL 26 (UK), available at https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060614/jones.pdf.
8 See, e.g., id., para. 10 (Lord Bingham). For similar reasoning from a court in Australia, see Zhang v. Zemin, [2010] NSWCA 255, para. 66 (New South Wales Ct. App. Oct. 5, 2010) (Austl.), available at https://documents.law.yale.edu/sites/default/files/zhang_243flr299.pdf.
9 Vienna Convention on the Law of Treaties, Art. 53, May 23, 1969, 1155 UNTS 331.
10 See A v. Ministère Public de la Confédération, B and C (2012) (Fed. Cr. Ct. Switz. July 25, 2012) (Switz.), translated into English at https://www.asser.nl/upload/documents/20130221T040104-Nezzar_Judgm_Eng_translation%2025-07-2012.pdf.
11 See Helfer, Curtis A. Bradley & Laurence R., International Law and the Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213, 239–40Google Scholar. But cf. Ingrid Wuerth, Pinochet's Legacy Reassessed, 106 AJIL 731, 732 (2012) (arguing, based on a review of state practice, that there is no established human rights or international crimes exception to conduct immunity); O'Keefe, Roger, An “International Crimes” Exception to the Immunity of State Officials from Foreign Criminal Jurisdiction: Not Currently, Not Likely, 109 AJIL Unbound 167, 168 (2015)Google Scholar (similar).
12 See Case of Jones and Others v. The United Kingdom, App. Nos. 34356/06 and 40528/06, Judgment (Eur. Ct. Hum. Rts. Jan. 14, 2014), available at https://www.justsecurity.org/wp-content/uploads/2014/01/Jones-v-United-Kingdom-ECtHR-2014.pdf.
13 Id., para. 215.
14 Id., para. 213. For a critique of the decision, see William S. Dodge, Is Torture an “Official Act?” Reflections on Jones v. United Kingdom, Opinio Juris (Jan. 15, 2014), at http://opiniojuris.org/2014/01/15/guest-post-dodge-torture-official-act-reflections-jones-v-united-kingdom.
15 See Int'l L. Comm'n Rep., Immunity of State Officials from Foreign Criminal Jurisdiction, 69th Sess., UN Doc. A/CN.4/L.893 (July 10, 2017), at https://legal.un.org/docs/?symbol=A/CN.4/L.893.
16 See Sean D. Murphy, Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where Is the State Practice in Support of Exceptions?, 112 AJIL Unbound 4 (2018).
17 See Case C/09/554385/HAZA18/647, Judgment (Hague Dist. Ct. Jan. 29, 2020) (Neth.), at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2020:667#_3d669af3-966f-40db-ba3a-4a53baab9313.
18 See Samantar, 560 U.S. 305 at 310 n. 3.
19 See id. at 315–18.
20 Id. at 322.
21 Id. at 319.
22 Id. at 324.
23 Id. at 322.
24 See Fed. R. Civ. Proc. 19(a)(1)(B)(i) (describing parties that are required to be joined in a suit in federal court, including where “disposing of the action in the [party's] absence may . . . as a practical matter impair or impede the person's ability to protect the interest”). See also Republic of Philippines v. Pimentel, 553 U.S. 851, 867 (2008) (“[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign.”).
25 Samantar, 560 U.S. at 325.
26 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978)).
27 Id. at 166.
28 Samantar, 560 U.S. at 325.
29 See, e.g., David P. Stewart, Samantar and the Future of Foreign Official Immunity, 15 Lewis & Clark L. Rev. 633, 648–49 (2011); Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int'l L. 915, 967 (2011); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964) (referring to “enclaves of federal judge-made law which bind the States”).
30 See, e.g., Rodriguez v. FDIC, 140 S. Ct. 713, 717 (2020) (“Judicial lawmaking in the form of federal common law plays a necessarily modest role under a Constitution that vests the federal government's ‘legislative Powers’ in Congress and reserves most other regulatory authority to the States.”).
31 See Ernest A. Young, Preemption and Federal Common Law, 83 Notre Dame L. Rev. 1639, 1642–43 (2008) (“It is just a step beyond this idea of explicit or implicit delegation to say that when Congress leaves gaps in federal statutes . . . it means for the courts to fill in those gaps through federal common lawmaking.”); see also Ingrid Wuerth, The Future of the Federal Common Law of Foreign Relations, 106 Georgetown L.J. 1825, 1852 (2018) (“[T]he law governing individual immunities is extremely closely linked to the law governing foreign state immunity.”).
32 For a discussion of the president's recognition power, see Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).
33 See Sabbatino, 376 U.S. at 425.
34 Samantar, 560 U.S. at 323.
35 See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (“It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.”).
36 Samantar, 560 U.S. at 323 n. 19.
37 In its amicus brief to the Court, the executive branch argued in favor of a remand to the lower courts “to consider whether [Samantar] is entitled to official immunity under background principles recognized by the Executive and the courts.” Brief for the United States as Amicus Curiae Supporting Affirmance, Samantar v. Yousuf, No. 08-1555, at 28 (U.S. Sup. Ct. Jan. 2010), at https://www.justice.gov/osg/brief/samantar-v-yousuf-amicus-merits.
38 See generally Wuerth, supra note 29. For arguments in support of absolute deference to the executive branch on issues of foreign official immunity, see John B. Bellinger III & Stephen K. Wirth, Foreign-Official Immunity Under the Common Law, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (Paul B. Stephan & Sarah H. Cleveland eds., 2020); and Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. J. Transnat'l L. 911 (2011).
39 See First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) (six of the nine Justices rejected case-specific executive branch control over the act of state doctrine). The separation of powers concerns are probably greater in cases involving conduct immunity than in cases involving status immunity. An implied executive authority to determine whether a sitting head of state should receive immunity can potentially be seen as flowing from the executive's broad authority over the recognition of foreign governments. Conduct immunity, however, is less directly tied to the executive branch's recognition power, since it turns not on whether the official holds a particular position in a recognized foreign government but rather on the nature of the conduct in question.
40 See Restatement (Third) of the Foreign Relations Law of the United States § 114 (1987); Restatement (Fourth) of the Foreign Relations Law of the United States § 309(1) and reporters’ note 1 (2018); id. § 406; see also Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .”).
41 Samantar, 560 U.S. at 320 n. 14.
42 See, e.g., Hafer v. Melo, 502 U.S. 21, 27–28 (1991).
43 28 U.S.C. § 1350 note, Sec. 2.
44 See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).
45 See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).
46 See, e.g., Manoharan v. Rajapaksa, 711 F.3d 178, 180 (D.C. Cir. 2013) (per curiam); Habyiarimana v. Kagame, 696 F.3d 1029, 1032 (10th Cir. 2012).
47 See, e.g., Brief for the United States of America as Amicus Curiae Supporting Petitioner, Doğan v. Barak, No. 16-56704, at 11 (9th Cir. July 26, 2017), available at https://ccrjustice.org/sites/default/files/attach/2017/07/41_7-26-17_US%20Amicus%20Brief%20web.pdf (“Governing precedent of the Supreme Court and this Court requires a court to dismiss a civil suit against a foreign official when the State Department determines that the official is immune from suit.”).
48 Samantar v. Yousuf, 699 F.3d 763, 773 (4th Cir. 2012).
49 Id.
50 Id. at 773.
51 See, e.g., Doe v. Zedillo Ponce de Leon, 555 Fed. Appx. 84, 85 (2d Cir. 2014); Burma Task Force v. Sein, 2016 U.S. Dist. LEXIS 42326, *3 (S.D.N.Y. Mar. 30, 2016); Ben-Haim v. Edri, 453 N.J. Super. 526, 537 (N.J. Super. App. Div. 2018).
52 See, e.g., Statement of Interest of the United States of America, Yousuf v. Samantar, Civ. No. 1:04 CV 1360 (LMB) (E.D. Va. Feb. 14, 2011), available at https://2009-2017.state.gov/documents/organization/194067.pdf (attaching letter from State Department Legal Adviser referring to a variety of case-specific circumstances, “relevant principles of customary international law,” and “the overall impact of this matter on the foreign policy of the United States”).
53 See Curtis A. Bradley, International Law in the U.S. Legal System ch. 5 (3d ed. 2020).
54 Vienna Convention on the Law of Treaties, supra note 9, Art. 53; see Samantar, 699 F.3d at 777.
55 For rejection of a jus cogens exception, see, for example, Doğan v. Barak, 932 F.3d 888, 897 (9th Cir. 2019); Doe v. Buratai, 318 F. Supp. 3d 218, 236 (D.D.C. 2018); and In re Terrorist Attacks on September 11, 2001, 122 F. Supp. 3d 181, 189 (S.D.N.Y. 2015). For a rejection of such an exception by the executive branch, see, for example, Brief for the United States as Amicus Curiae, Ali v. Warfaa, No. 15–1345, at 18 (U.S. Sup. Ct. May 2017), available at https://www.justice.gov/sites/default/files/briefs/2017/05/30/15-1345_ali_ac_pet.pdf.
56 See, e.g., Buratai, 318 F. Supp. 3d at 233–35.
57 See, for example, the two concurring opinions in Lewis v. Mutond, 918 F.3d 142 (D.C. Cir. 2019).
58 See, e.g., Doğan, 932 F.3d at 897; Buratai, 318 F. Supp. 3d at 236.
59 See, e.g., Brief for the United States of America, Doğan v. Barak, supra note 47, at 15 (“The TVPA does not address, let alone abrogate, the common law immunity of foreign officials.”).
60 See, e.g., Chimène Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 70–71 (2010); Beth Stephens, The Modern Common Law of Foreign Official Immunity, 79 Fordham L. Rev. 2669, 2707–10 (2011).
61 See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
62 See Stephens, supra note 60, at 2672 (arguing that “U.S. law governing the immunity of domestic officials establishes an important framework for key decisions about the scope of foreign official immunity”).
63 See Ex parte Young, 209 U.S. 123 (1908).
64 Id. at 160.
65 See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 270 (1997).
66 Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, 209 U.S. at 160).
67 See, e.g., Hafer, 502 U.S. at 27.
68 See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014); see also John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47 (1998).
69 See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Dep't of Treasury of Indiana, 323 U.S. 459 (1945).
70 See Erwin Chemerinsky, Federal Jurisdiction 584 (8th ed. 2020).
71 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
72 See Chemerinsky, supra note 70, at 577; see also Jack M. Beermann, Common Law Elements of the Section 1983 Action, 72 Chi. Kent L. Rev. 695, 698 (1997) (noting that the Supreme Court has “presumed that Congress intended to incorporate well-established common law rules that were in operation at the time the statutes were passed into the causes of action created by the statutes”).
73 918 F.3d 142 (D.C. Cir. 2019), cert. denied, 2020 U.S. LEXIS 3396 (2020).
74 Id. at 146.
75 Id.
76 Id. at 147. See also Stephens, supra note 60, at 2678 (interpreting Section 66 of the Restatement (Second) as applying only when “the state itself would be bound by a judgment against the official”).
77 Doğan, 932 F.3d 888.
78 Id. at 894.
79 Unlike in Lewis, the State Department had submitted a suggestion of immunity to the court in Doğan. The court in Doğan said that the suggestion was entitled at least to “considerable weight,” but it did not decide whether the suggestion merited absolute judicial deference. Id. at 893–94.
80 See, e.g., Buratai, 318 F. Supp. 3d at 232; Smith v. Ghana Commer. Bank Ltd., 2012 U.S. Dist. LEXIS 99735 (D. Minn. 2012).
81 See Samantar, 560 U.S. at 325. For examples after Samantar in which courts have found a foreign state to be the real party in interest in a suit nominally brought against a foreign official, thereby triggering application of the FSIA, see Nnaka v. Fed. Republic of Nigeria, 238 F. Supp. 3d 17, 30–31 (D.D.C. 2017); and Odhiambo v. Republic of Kenya, 930 F. Supp. 2d 17, 34–35 (D.D.C. 2013).
82 One might also question whether it makes sense to put much weight on an observation by the American Law Institute about the state of the common law, published nearly a half-century before Samantar and before the enactment of the FSIA, when discerning the post-Samantar common law of immunity. For doubts about this, see Lewis, 918 F.3d at 148–50 (Randolph, J., concurring in the judgment).
83 Buratai, 318 F. Supp. 3d at 232–33; see also, e.g., Smith, 2012 U.S. Dist. LEXIS 99735, *29 (“Allowing an American court to reach the merits of a suit against a public official for acts taken on behalf of the foreign state, and, thereby enforcing a rule of law against the foreign state, would certainly affect the ‘power and dignity’ of that foreign state.”).
84 See 28 U.S.C. § 1605(a)(5) (exception to immunity for noncommercial torts applies only if the harm occurs in the United States); Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 439 (1989) (“Congress’ primary purpose in enacting § 1605(a)(5) was to eliminate a foreign state's immunity for traffic accidents and other torts committed in the United States, for which liability is imposed under domestic tort law.”).
85 Courts have consistently rejected the argument that states implicitly waive their immunity under the FSIA by engaging in jus cogens violations. See, e.g., Price v. Socialist People's Libyan Jamahiriya, 101 F.3d 239, 242–44 (2d Cir. 1996).
86 See Bellinger & Wirth, supra note 38 (“The conduct at issue [in the traffic accident illustration] is not of a sovereign nature, and the official's negligence is in no way attributable to the foreign state.”).
87 Cf. Hernandez v. Mesa, 140 S. Ct. 735, 748 (2020) (“Where Congress has not spoken at all, the likelihood of impinging on its foreign affairs authority is especially acute.”); Kiobel, 569 U.S. at 116 (noting that “the danger of unwarranted judicial interference in the conduct of foreign policy is magnified” where the “question is not what Congress has done but instead what courts may do”).
88 See Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment, 2012 ICJ Rep. 99 (Feb. 3).
89 See International Law Commission, Responsibility of States for Internationally Wrongful Acts, Arts. 4, 7, II Y.B. Int'l L. Comm'n (2001), available at https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.
90 See Chimène I. Keitner, Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity, 26 Duke J. Comp. & Int'l L. 451, 458 (2016); Dodge, supra note 14; see also International Law Commission, supra note 89, Art. 58 (“These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”).
91 Cf. Ger. v. It., supra note 88, at 140, para. 93 (“The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.”).
92 140 S. Ct. 735.
93 Id. at 744.
94 Id. at 745.
95 See Kiobel, 569 U.S. at 124 (expressing concern about the possibility of generating “diplomatic strife”); Jesner, 138 S. Ct. at 1408 (“The political branches . . . surely are better positioned than the Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good relations with foreign governments.”).
96 Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004).
97 See, e.g., In re “Agent Orange” Prod. Liability Litig., 373 F. Supp. 2d 7, 45 (E.D.N.Y. 2005) (“Requests for extraterritorial injunctions often raise serious concerns for sovereignty and enforceability which compel denial.”).
98 Harlow, 457 U.S. at 818.
99 United States v. Stanley, 483 U.S. 669, 695 n. 13 (1987) (quoting Barr v. Mateo, 360 U.S. 564, 576 (1959) (plurality)).
100 For an argument that courts should create a qualified immunity doctrine for suits against foreign officials, see John Balzano, A Hidden Compromise: Qualified Immunity in Suits Against Foreign Governmental Officials, 13 Ore. Rev. Int'l L. 71 (2011). One potential problem with this argument is that the domestic qualified immunity doctrine seeks to balance considerations that may not apply in suits against foreign officials, such as the need to vindicate federal law within a national legal system.
101 See Samantar, 560 U.S. at 320.
102 See note 72 supra.
103 See, e.g., Samantar, 560 U.S. at 320 (“[W]e do not think that the [FSIA] codified the common law with respect to the immunity of individual officials.”).
104 See H. Rpt. No. 102-367, 102d Cong., 1st Sess. 5 (Nov. 25, 1991); S. Rpt. No. 102-249, 102d Cong., 1st Sess. 7–8 (Nov. 26, 1991).
105 See S. Rpt., supra note 104, at 8.
106 See id. (“To avoid liability by invoking the FSIA, a former official would have to prove an agency relationship to a state, which would require that the state ‘admit some knowledge or authorization of relevant acts.’ 28 U.S.C. 1603(b). Because all states are officially opposed to torture and extrajudicial killing, however, the FSIA should normally provide no defense to an action taken under the TVPA against a former official.”).
107 See, e.g., U.S. Amicus Brief in Doğan v. Barak, supra note 47, at 16–20.
108 See text accompanying note 40 supra.
109 See Bradley & Helfer, supra note 11, at 252 (“A court that interprets immunity broadly will not violate [customary international law], whereas a court that interprets immunity narrowly may.”); Wuerth, supra note 29, at 974 (“Denial of immunity by U.S. courts to foreign officials thus risks putting the United States in violation of international law with unclear diplomatic and foreign policy risks.”).
110 Lewis, 918 F.3d at 150 (Randolph, J., concurring in the judgment); see also Stephens, supra note 60, at 2704 (“A blanket grant of immunity to foreign officials who act under color of law would contradict the statute.”).
111 918 F.3d at 150 (Randolph, J., concurring in the judgment).
112 Cf. Buratai, 318 F. Supp. 3d at 232 (emphasizing that “the defendants’ alleged actions were part of their official duties within the Nigerian government, military, and police”).
113 Cf. Doğan, 932 F.3d at 895 (“The parties agree that Congress expected foreign states would generally disavow conduct that violates the TVPA because no state officially condones such actions.”); see also Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir 1994) (citing letter from the Philippine government urging the court to exercise jurisdiction over its former president for “acts of torture, execution, and disappearance [that] were clearly acts outside of his authority”).
114 Buratai, 318 F. Supp. 3d at 238. A requirement that the foreign state attest that the alleged actions were taken in an official capacity would ensure that the state accepts responsibility in return for its officials receiving immunity in U.S. courts. Cf. Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment, 2008 ICJ Rep. 177, 244, para. 196 (June 4) (noting that “a State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs”).
115 See, e.g., In re Grand Jury Proceedings, Doe # 700 (Under Seal), 817 F.2d 1108, 1110–11 (4th Cir. 1987); Paul v. Avril, 812 F. Supp. 207, 210 (S.D. Fla. 1992).
116 See, e.g., Buratai, 318 F. Supp. 3d at 238.
117 Samantar, 560 U.S. at 322 n. 17.
