Foreign-Official Immunity under the Common Law

Abstract

Abstract This chapter looks at foreign-official immunity. Foreign-official immunity is divided into status-based immunity, which affords absolute immunity to sitting heads of state, heads of government, and foreign ministers, and conduct-based immunity, which affords immunity to sitting and former foreign officials for official conduct undertaken on behalf of the foreign sovereign. Each of these immunities has deep roots in customary international law and the common law. And for nearly two centuries, U.S. courts applied common-law principles of immunity, as articulated by the executive branch in court filings known as “suggestions of immunity,” to assess whether a foreign state or foreign official was immune from suit in the United States. The Fourth Restatement of Foreign Relations Law does not yet include a section on the immunity of foreign officials in U.S. courts. The American Law Institute may consider including this passionately debated topic in a future volume. In the meantime, the chapter provides a background on the state of the case law and executive-branch practice, identifies several challenging open questions, and outlines some principles that may be useful to the eventual drafters of the Fourth Restatement’s section on the topic.