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Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department

dc.contributor.authorWuerth, Ingrid Brunk
dc.date.accessioned2014-10-27T21:50:21Z
dc.date.available2014-10-27T21:50:21Z
dc.date.issued2011
dc.identifier.citation51 Va. J. Int'l L. 915 (2011)en_US
dc.identifier.urihttp://hdl.handle.net/1803/6827
dc.descriptionarticle published in law journalen_US
dc.description.abstractThe immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Sovereign Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court recently held in Samantar v. Yousuf. Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims that it holds constitutional power to make individual immunity determinations on a case-by-case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination. I argue in this article that the executive branch lacks such "lawmaking" power. I examine the text and structure of the Constitution, functional and historical arguments, the Court's case law, and implied congressional authorization, and I reject each of these as possible grounds for the power asserted by the executive branch. Instead, I assert that the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds. Federal common law should be constrained in some respects, however, by the content of the FSIA, by customary international law, and by the views of the executive branch on certain discrete issues.en_US
dc.format.extent1 PDF (63 pages)en_US
dc.format.mimetypeapplication/pdf
dc.language.isoen_USen_US
dc.publisherVirginia Journal of International Lawen_US
dc.subject.lcshDiplomatic privileges and immunities -- United Statesen_US
dc.titleForeign Official Immunity Determinations in U.S. Courts: The Case Against the State Departmenten_US
dc.typeArticleen_US
dc.identifier.ssrn-urihttp://ssrn.com/abstract=1811604


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