8 Sovereign and Individual Official Immunity

Abstract

This chapter discusses four types of immunity in U.S. litigation: the immunity of foreign governments and their agencies and instrumentalities; the immunity of international organizations; the immunity of diplomats and consular officials; and the immunity of other foreign officials. Foreign governmental immunity is addressed by an extensive statute that was enacted in 1976—the Foreign Sovereign Immunities Act—and both the historical practice predating the Act and its core provisions are considered here. Among other things, the chapter describes how courts have interpreted some of the exceptions to immunity in the Act, such as for commercial activity and noncommercial torts, and also for certain acts by state sponsors of terrorism. International organization immunity is discussed in light of the Supreme Court’s 2019 decision in Jam v. Int’l Finance Corp. Diplomatic immunity and consular immunity are addressed by multilateral treaties, and this chapter describes those treaties and how they have been applied by U.S. courts. The most unsettled category of immunity concerns suits against other foreign government officials, including against sitting and former heads of state. The chapter describes how the lower courts, since the Supreme Court’s 2010 decision in the Samantar case, have been developing a common law of immunity for these cases, while also often giving deference to the views of the executive branch. The chapter also notes various unresolved issues, including issues concerning the proper level of deference and the extent to which the violation of jus cogens norms of international law can qualify as official conduct for purposes of conduct-based immunity.