United States Alien Tort Claims Act Litigation and the Proposed Human Rights Exception to Foreign Sovereign Immunity

Abstract

This paper deals with the law of foreign sovereign immunity in the United States. Specifically, it takes Alien Tort Claims Act case-law as a lens through which to view the problem. The material is separated into analysis of cases against foreign governments and cases against foreign officials. This is because recent Supreme Court precedent has dictated separate regimes for these species of cases. The Foreign Sovereign Immunities Act of 1976 governs suits against foreign governments, while the Supreme Court has ruled that suits against foreign officials are to be governed by the common law of foreign official immunity, which has been held to have survived the passage of the Foreign Sovereign Immunities Act. The paper culminates in a detailed analysis of the Samantar litigation throughout its various stages, along with coverage of related cases. The post-Samantar legal landscape is also explained. Readers will be familiarised with the differences in federal circuit court treatments of the issue in the aftermath of the Supreme Court’s ruling in the Samantar case.