Keitner: Prosecuting Foreign States

Chimène Keitner (Univ. of California - Hastings College of the Law) has posted Prosecuting Foreign States (Virginia Journal of International Law, forthcoming). Here's the abstract:

In recent years, the Department of Justice has shown increased interest in prosecuting entities associated with foreign states for activities including cybercrime, economic espionage, and sanctions violations. It has also sought third-party evidence from foreign state-owned entities in connection with high-profile criminal investigations, including the Mueller investigation. These actions raise fundamental questions about the immunities of foreign states and state-owned entities from U.S. criminal proceedings. This article provides the first comprehensive analysis of—and answer to—these basic questions. In doing so, it upends the widespread but misleading perception that the Foreign Sovereign Immunities Act of 1976 (FSIA) provides the sole basis for exercising jurisdiction over foreign states in every context. The better view is that the FSIA neither authorizes nor prohibits criminal proceedings. Until Congress enacts appropriate legislation, claims to immunity from such proceedings will remain a matter of common law.

The common law of foreign state immunity from criminal proceedings warrants legislative attention. First, Congress can and should make explicit that the FSIA only governs civil proceedings. Second, it should clarify that state-owned enterprises are not entitled to blanket immunity from criminal proceedings simply because they are majority-owned by foreign states. Misapplying the FSIA’s expansive definition of “foreign state” to preclude criminal proceedings can impede the effective investigation and prosecution of foreign corporations whose activities have a significant impact in the United States, and that international law does not necessarily view as entitled to immunity. The default position should be that foreign state-owned companies are subject to the criminal jurisdiction of U.S. courts, at least with respect to their commercial activities.

Keitner: Between Law and Diplomacy: The Conundrum of Common Law Immunity

Chimène Keitner (Univ. of California - Hastings College of the Law) has posted Between Law and Diplomacy: The Conundrum of Common Law Immunity (Georgia Law Review, forthcoming). Here's the abstract:

Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts, and those that cannot, has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct is challenged in U.S. courts, and who do not fall within existing statutes. To date, the contours of common-law immunity have only been addressed at the district and circuit court levels. The conundrum thus persists: how to define which claims are barred by immunity, who decides, and which claims are barred?

This Article offers an original historical account of strategies used by litigants, judges, legislators, and executive branch officials to navigate tensions between rules-based approaches to jurisdictional immunity administered by the judiciary and case-by-case approaches administered by the political branches. Part I excavates the practices and understandings of those involved in these cases, as the Executive Branch disclaimed the authority to instruct courts to dismiss claims on immunity grounds. Although past is not necessarily prologue, this early U.S. practice offers important insights into the interplay between legal and political considerations in immunity determinations that persist in the present day. Part II continues the historical narrative by exploring two pivotal twentieth-century cases involving foreign ships, in which the Executive Branch appears to have advanced — and courts ultimately accepted — a more robust political role in immunity determinations. Although cases against foreign officials appear to have been relatively few and far between during the twentieth century, the advent of modern human rights litigation inaugurated a new wave of cases against foreign officials for acts including torture and genocide. Today, privately initiated civil suits continue to be brought against current and former foreign officials in the United States for conduct ranging from torture, war crimes, and kidnapping, to domestic worker abuse. Part II elucidates some of the conceptual and procedural challenges to adjudicating these claims, which continue to defy straightforward resolution.

Curran: The Foreign Sovereign Immunities Act's Evolving Genocide Exception

Vivian Grosswald Curran (Univ. of Pittsburgh - Law) has posted The Foreign Sovereign Immunities Act's Evolving Genocide Exception (UCLA Journal of International Law and Foreign Affairs, forthcoming). Here's the abstract:

The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other than itself. Later, such suits were allowed even where the plaintiffs were deemed by the court to have been formal citizens so long as they had not been treated as such at the time of the expropriation. This tended to occur where states had dispossessed groups of citizens, often minority populations, of their property rights, and often coincided with grave human rights violations.

In the most recent appellate decisions to consider the issue, two circuits, the Seventh and D.C., nationality has been discarded entirely as a criterion to abrogate immunity if a court considers the defendant state’s expropriation to have been part of a policy of genocide. The D.C. circuit has gone still further in the later of the cases and equates the act of property expropriation with genocide. Both circuits initially also imposed a new exhaustion of local remedies requirement. As of 2018, a conflict exists between the two circuits on that issue.

The genocide interpretation with the imposition of exhaustion distorts both the FSIA and international customary law. It risks trivializing the concept of genocide, and in the Seventh Circuit it removes exhaustion from its international law roots in cases that occur exclusively in international tribunals by inserting the requirement into a domestic court framework. Neither development is consistent with the FSIA statute. Coupling the new genocide category with an exhaustion requirement also has a net effect of depriving plaintiffs of recovery inasmuch as lawsuits in the foreign defendant states are unlikely to succeed, and the obstacles are steep for persuading U.S. federal courts subsequently to retry a case once an adverse foreign judgment has been issued.

Mandell: Venezuela v. Helmerich & Payne International Drilling Co.: The Supreme Court Makes It Harder to Bring Claims Against Foreign Sovereigns in U.S. Courts

Daniel Mandell (Cohen & Gresser LLP) has posted an ASIL Insight on Venezuela v. Helmerich & Payne International Drilling Co.: The Supreme Court Makes It Harder to Bring Claims Against Foreign Sovereigns in U.S. Courts.

Tarsis & Varner: Reviewing the Agudas Chasidei Chabad v. Russian Federation, et al. Dispute

Irina Tarsis & Elizabeth Varner have posted an ASIL Insight on Reviewing the Agudas Chasidei Chabad v. Russian Federation, et al. Dispute.

Koh: Foreign Official Immunity After Samantar: A United States Government Perspective

Harold Hongju Koh (Legal Adviser, U.S. Department of State) has published Foreign Official Immunity After Samantar: A United States Government Perspective (Vanderbilt Journal of Transnational Law, Vol. 44, no. 5, p. 1141, November 2011). Here's the opening paragraph:

I am delighted to speak here at Vanderbilt regarding the U.S. Government’s perspective on Foreign Official Immunity after Samantar v. Yousuf. In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court’s decision in Samantar and its implications; and third, the State Department’s “New Samantar Process,” which has been emerging since the Supreme Court’s decision—focusing, in particular, on distinguishing what we call Samantar issues from non-Samantar issues, the effect of a State Department suggestion of immunity, and the effect of State Department silence with respect to a foreign official’s claim of immunity.

Opinio Juris Discussion of Wuerth's Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department

Last week, Opinio Juris hosted a discussion of Ingrid Wuerth's Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department. Wuerth's introduction is here. Curt Bradley, Larry Helfer, and David Stewart wrote responses. Wuerth's reply is here.

Symposium: Foreign State Immunity at Home and Abroad

The Vanderbilt Journal of Transnational Law is hosting a symposium on "Foreign State Immunity at Home and Abroad," February 4, 2011, in Nashville. Here's the program:

Keynote Address

Harold Hongju Koh (Legal Adviser, U.S. Department of State), "Foreign Official Immunity after Samantar: A U.S. Government Perspective."

Panel One: Immunity in U.S. Courts after Samantar

Moderater: Ingrid Wuerth (Vanderbilt Univ. Law)

Panel:

David Bederman (Emory Univ. – Law)

John Bellinger III (formerly, Legal Adviser, U.S. Department of State; Arnold & Porter)

Sarah Cleveland (Columbia Univ. – Law; U.S. Department of State)

Chimène Keitner (Univ. of California Hastings School of the Law)

Panel Two: Head of State, Diplomatic, and Other Immunities

Moderator: Ingrid Wuerth (Vanderbilt Univ. – Law)

Panel:

Michael A. Newton (Vanderbilt Univ. – Law)

Edward Swaine (George Washington Univ. – Law)

Lewis Yelin (U.S. Department of Justice)

Panel Three: State Immunity and Human Rights

Moderator: Klint Alexander (Vanderbilt Univ. – Law)

Panel:

Lorna McGregor (REDRESS/Univ. of Essex)

Roger O'Keefe (Univ. of Cambridge – Law)

Beth Stephens (Rutgers Univ. – Law)

David Stewart (Georgetown Univ. – Law)

Panel Four: The International Law of State Immunity and Its Development by National Institutions

Moderator: Jacob Katz Cogan (Univ. of Cincinnati – Law)

Panel:

David Caron (Univ. of California, Berkeley - Law)

Lori Fisler Damrosch (Columbia Univ. – Law)

Elena Sciso (LUISS Guido Carli - Law)

Paul Stephan (Univ. of Virginia – Law)

Christian Tomuschat (Humboldt-Universität zu Berlin – Law)

Bradley & Helfer: International Law and the U.S. Common Law of Foreign Official Immunity

Curtis A. Bradley (Duke Univ. - Law) & Laurence R. Helfer (Duke Univ. - Law) have posted International Law and the U.S. Common Law of Foreign Official Immunity (Supreme Court Review, forthcoming). Here's the abstract:

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits "may still be barred by foreign sovereign immunity under the common law". At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the immunity of foreign officials under customary international law ("CIL").

In this Article, we explain why, notwithstanding the Supreme Court’s inattention in Samantar to the international law backdrop of the case, CIL immunity principles are likely to be relevant to the development of the post-Samantar common law of immunity. In considering the relationship between CIL and common law immunity, the Article makes three contributions. First, it sets forth a case for CIL’s relevance that is not dependent on a single theoretical perspective regarding the domestic status of CIL. Second, it presents a balanced assessment of the rapidly evolving CIL landscape, noting in particular the erosion of immunity protections for human rights violations in criminal proceedings and the lack of a similar erosion - at least so far - in civil suits for damages. Third, by emphasizing institutional considerations rather than arguing for a particular outcome, it isolates and analyzes particular variables - such as the views of the Executive Branch and the policies embodied in domestic statutes - that will shape how CIL affects the common law of immunity after Samantar.

Stewart: Samantar v. Yousuf: Foreign Official Immunity Under Common Law

David P. Stewart (Georgetown Univ. - Law) has posted an ASIL Insight on Samantar v. Yousuf: Foreign Official Immunity Under Common Law.

Keitner: Officially Immune? A Response to Bradley and Goldsmith

Chimène I. Keitner (Univ. of California, Hastings College of the Law) has posted Officially Immune? A Response to Bradley and Goldsmith (Yale Journal of International Law Online, forthcoming). Here's the abstract:

The Schooner Exchange teaches that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Applying the Foreign Sovereign Immunities Act to grant immunity in U.S. courts to current and former foreign officials for any non-commercial conduct undertaken with the actual or apparent authority of a foreign state would dramatically undercut this basic feature of U.S. sovereignty. Arguments based on logic, policy, and international law do not compel such an extreme result.

Stewart: Supreme Court Preview: The Samantar Case and the Immunity of Foreign Government Officials

David P. Stewart (Georgetown Univ. - Law) has posted an ASIL Insight on Supreme Court Preview: The Samantar Case and the Immunity of Foreign Government Officials.

Bradley & Goldsmith: Foreign Sovereign Immunity and Domestic Officer Suits

Curtis A. Bradley (Duke Univ. - Law) & Jack Landman Goldsmith III (Harvard Univ. - Law) have posted Foreign Sovereign Immunity and Domestic Officer Suits. Here's the abstract:

Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.

Bettauer: Germany Sues Italy at the International Court of Justice on Foreign Sovereign Immunity – Legal Underpinnings and Implications for U.S. Law

Ronald J. Bettauer (George Washington Univ. - Law) has posted an ASIL Insight on Germany Sues Italy at the International Court of Justice on Foreign Sovereign Immunity – Legal Underpinnings and Implications for U.S. Law.

Bradley & Goldsmith: Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation

Curtis A. Bradley (Duke Univ. - Law) & Jack Landman Goldsmith III (Harvard Univ. - Law) have posted Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation. Here's the abstract:

For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.

Cert. Grant: Samantar v. Yousuf

Today, the Supreme Court of the United States granted the petition for a writ of certiorari in Samantar v. Yousuf (No. 08-1555). The opinion below, the petition for certiorari, the brief in opposition, and the petitioner's reply are available here. The question before the Court will be: "Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state."

Ministry of Defense v. Elahi

Today, the Supreme Court of the United States issued its opinion in Ministry of Defense v. Elahi. It can be found here.

Bradley: Foreign Officials and Sovereign Immunity in U.S. Courts

Curtis A. Bradley (Duke Univ. - Law) has posted an ASIL Insight on Foreign Officials and Sovereign Immunity in U.S. Courts.

Ministry of Defense v. Elahi (Transcript)

The transcript of yesterday's argument in Ministry of Defense v. Elahi is now available here.

Ministry of Defense v. Elahi

Today, the Supreme Court of the United States will hear argument in Ministry of Defense v. Elahi (No. 07-615). The question presented is: "Is an attachment against foreign sovereign property permissible when that property is 'at issue in claims against the United States before an international tribunal,' and that property is not a 'blocked asset,' pursuant to the terms of the 2000 Victims of Trafficking and Violence Protection Act and the 2002 Terrorism Risk Insurance Act?" Briefs and a more detailed description of the case can be found here.