Immunity Games: How the State Department Has Provided Courts with a Post-Samantar Framework for Determining Foreign Official Immunity
In 2010, the Supreme Court ruled in Samantar v. Yousuf that the Foreign Sovereign Immunities Act ("FSIA") does not govern the application or determination of foreign official immunity.' Instead, the Court found that the immunity of foreign officials was "properly governed by the common law."2 While the Court failed to explicitly define these common-law principles, it did note that the State Department would play a role in individual official immunity determinations.3 In the years since, the State Department has done just that. Through officially submitted Suggestions of Immunity and Statements of Interest, the State Department has rejuvenated its standards for granting foreign official immunity for both heads of state and current and former officials. These standards draw upon the foundational principles of customary international law for official immunity and establish the criteria by which officials are entitled to such immunity in the United States. Nevertheless, this area of law is still fairly undeveloped. Courts struggle over questions of foreign official immunity and the appropriate amount of deference to give the State Department. This Note seeks to alleviate this ambiguity by demonstrating that the State Department's post-Samantar Suggestions of Immunity and Statements of Interest reveal a consistent and reliable framework for determining whether a foreign official is immune from suit.
Erica E. Smith,
Immunity Games: How the State Department Has Provided Courts with a Post-Samantar Framework for Determining Foreign Official Immunity,
67 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol67/iss2/6