The Forgotten History of Foreign Official Immunity

June
2012
Chimène I. Keitner

The immunity of foreign officials from legal proceedings in U.S. courts has drawn significant attention from scholars, advocates, and judges in the wake of the Supreme Court’s decision in Samantar v. Yousuf, which held that foreign official immunity is governed by the common law rather than the Foreign Sovereign Immunities Act (FSIA). The common law of foreign official immunity, which the Samantar Court did not define, operates at the intersection of international and domestic law, and it implicates the constitutional separation of powers between the executive and judicial branches. Conflicting visions of the substance and process of common law immunity have already emerged following the Samantar opinion and will continue to compete until the Supreme Court revisits this issue in a future case. At stake is not only the ability of suits to proceed against foreign officials, but also the relationship between the executive branch and the judiciary in matters affecting foreign affairs.

The original research into eighteenth-century practices presented in this Article yields two important observations. First, claims that defendants acted in their official capacities did not automatically bar adjudication on the merits: Foreign officials who were neither diplomatic officials nor heads of state were on the same “footing” as “every other foreigner” with respect to their “suability.” Second, the Executive believed that it did not have constitutional authority to instruct courts to dismiss private suits on immunity grounds. Although twenty-first century advocates might make policy arguments for blanket immunity or absolute executive discretion, such choices are not consistent with—let alone compelled by—the eighteenth-century practices and understandings recovered here.

This article appears in the June 2012 Issue: Volume 87, Number 3