Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity

Abstract

For more than a decade, the lower federal courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials. Although the Foreign Sovereign Immunities Act comprehensively regulates the immunity of foreign states, the Supreme Court concluded in a 2010 decision, Samantar v. Yousuf, that this statute does not address the immunity of individual foreign government officials. The Court did not dispute that foreign officials are entitled to some immunity from suit, but it indicated that this immunity was to be governed by judicial application of common law rather than by statute. Provided with little guidance about how to discern and develop this body of common law, the lower courts are now divided on a number of issues relating to the scope of foreign official immunity. A key source of the division concerns how to properly conceptualize foreign official immunity. Based in part on their interpretation of a provision in the Restatement (Second) of Foreign Relations Law, some courts apply an “effect-of-judgment” approach that confers immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state. Other courts apply a broader “nature-of-act” approach, whereby immunity would apply whenever the plaintiff’s case is challenging conduct carried out on behalf of the state. This essay critiques the effect-of-judgment approach, explaining that it is difficult to reconcile with Samantar, does not take sufficient account of the foreign relations concerns implicated in suits against foreign officials, and does not constitute the best reading of the Restatement (Second). The essay also contends that, although the effect-of-judgment approach can find some support in domestic civil rights litigation, that litigation is not a useful analogue for suits brought against foreign officials.