Keitner: Foreign Official Immunity and the 'Baseline' Problem

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted Foreign Official Immunity and the 'Baseline' Problem (Fordham Law Review, forthcoming). Here's the abstract:

In several recent cases, domestic courts in the United Kingdom, New Zealand, Australia, the United States, and Canada have grappled with the scope of conduct-based immunity as a matter of common law, statutory law, and customary international law. In so doing, some courts have failed to distinguish between precedents involving defendants who are physically present on the forum state’s territory and precedents involving defendants who have not been served within the jurisdiction. Insisting on this distinction might at first seem counter-intuitive, because conduct-based immunity attaches to the act, not the individual. However, all cases of immunity involve competing jurisdictional principles. When a defendant is not physically present within the forum state, there is no competing principle of territorial jurisdiction (unless the conduct occurred in the forum state, in which case most states recognize an exception to state immunity for tortious conduct that results in personal injury or death or property damage or loss). When a defendant is physically present within the forum state, a competing principle of plenary jurisdiction over territory must be taken into account. In these cases, conduct-based immunity might not preclude the exercise of adjudicatory jurisdiction, leaving it to other abstention doctrines (such as the political question doctrine and the act of state doctrine) to curb the exercise of adjudicatory jurisdiction where appropriate.