I have argued in a recently published article that the U.S. government lacks the power to making foreign official immunity determinations that are binding on the U.S. courts.
The article, entitled Foreign Official Immunity Determinations in U.S. Courts: The Case against the State Department, maintains that the executive branch lacks such power for constitutional, statutory, and functional reasons. This issue arises in cases like those against foreign governmental officials, which do not come within the Foreign Sovereign Immunities Act. Before the FSIA was enacted in the late 1970s, the executive branch made immunity determinations that were viewed as binding in U.S. courts; however, FSIA ended this practice for suits against nation states themselves.
Cases against individuals are not covered by FSIA, as the U.S. Supreme Court ruled in Samantar v. Yousuf (2010) (prior IntLawGrrls posts here, here, here, here, and here). The executive branch claims the power to make immunity determinations for such defendants. In addition to countering this position, my article argues, consistent with the well-established Charming Betsy canon, that courts in making immunity determinations should not risk putting the U.S. in violation of international law.
My focus here is a very brief comparative analysis, an issue that I did not tackle in the article.
I am currently living in Berlin, and the reaction of foreign scholars and lawyers to the U.S. executive branch’s assertion of power in immunity cases is, let’s say, very skeptical. To my knowledge, no other country in the world gives its executive branch the power to make immunity determinations binding in their courts – with the arguable exception of India.
► The British courts have acknowledged the executive suggestion practice in the U.S. courts (prior to the enactment of FSIA) – and, in The Philippine Admiral, 15 I.L.M. 133, 142 (1977), rejected it.
► The Italian Constitutional Court rejected as unconstitutional a statute that prohibited execution against the property of foreign states without the consent of the Minister of Justice. Condor and Filvern v. National Shipping Co. of Nigeria, 33 I.L.M. 593 (1992).
► Greece has a similar statute, and has refused to permit the execution of judgments against Germany for World-War II related crimes. (See this 2003 German Law Journal article by Kerstin Bartsch and Björn Elberling.) The statute was upheld by the Greek courts and by the European Court of Human Rights, which, in Kalogeropoulou et al. v. Greece and Germany, (2002), available here, rejected the argument that the statute impermissibly interfered with the applicants’ access to courts. Even in Greece, however, the power of the executive branch just goes to the execution of judgment against property in Greece – not to immunity in the underlying law-suit.
► A statute in India does give the government the power to make foreign state immunity determinations – but the Supreme Court of India has held that it has the power to review such determinations to make sure they are not “arbitrary” or “whimsical.” The Court has sent at least one immunity determinations back to the government for re-consideration. Harbhajan Singh Della v. Union of India, 92 I.L.R. 530 (1986).
Obviously, this is a very cursory list. If readers know of any cases, articles or other materials on executive power and immunity determinations in any other country, please leave a comment, or email me at email@example.com.
With respect to U.S. practice, in addition to my article, the Vanderbilt Journal of Transnational Law is publishing a symposium issue this fall. Articles will include one by IntLawGrrls guest/alumna Chimène Keitner entitled Foreign Official Immunity After Samantar, as well as others by John Bellinger, Sarah Cleveland, Harold Koh, Peter Rutledge, and Lewis Yelin, none of which are posted yet. Outside of the symposium, Rutledge has a forthcoming article that discusses separation of powers issues in U.S. immunity cases: Samantar, Official Immunity and Federal Common Law.