The immunity of state officials under the UN Convention on Jurisdictional Immunities of States and Their Property.

• Author: Stewart, David P.
• Position: Symposium: Foreign State Immunity at Home and Abroad

ABSTRACT

The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. This Article examines the relevant provisions of the Convention and related decisional law.

TABLE OF CONTENTS I. BACKGROUND OF THE CONVENTION II. THE CONVENTION'S APPLICATION TO INDIVIDUALS III. SPECIFIC EXCEPTIONS A. Torts B. Violations of International Law IV. SUBSEQUENT DEVELOPMENTS V. CONCLUSION In deciding in Samantar v. Yousuf (1) that the Foreign Sovereign Immunities Act of 1976 (FSIA) does not apply to claims lodged in U.S. courts against individual foreign government officials, the Supreme Court relied primarily on traditional principles of domestic law relating to statutory interpretation. International law appears to have played no role whatsoever.

Perhaps this is unremarkable. While expressly acknowledging that the FSIA had in fact been enacted in large part on the basis that it codified then-existing customary international law, (2) the majority opinion by Justice Stevens explained that "[b]ecause we are not deciding that the FSIA bars petitioner's immunity but rather that the Act does not address the question, we need not determine whether declining to afford immunity to petitioner would be consistent with international law." (3)

Questions of international law were, nonetheless, presented during the proceedings. The district court granted Samantar's motion to dismiss on grounds that no exception to immunity under the FSIA applied to the case--rejecting the argument that Samantar was not entitled to immunity because, in allegedly violating international law, he had necessarily been acting beyond the scope of his authority. (4) The court of appeals did not contradict that holding but reversed on the ground that the FSIA did not govern, and that was the decision affirmed by the Supreme Court. (5)

The district court's decision was consistent with the substantive provisions adopted by the international community in the 2004 UN Convention on the Jurisdictional Immunities of States and Their Property, which explicitly assimilates to the state its representatives acting in their official capacity and which contains no exception to immunity for actions alleged to have violated international law. (6) In his merits brief to the Supreme Court, petitioner Samantar referred to the Convention. (7) Not unsurprisingly, the respondents omitted any such mention in their reply brief, although it was referred to in one amicus brief filed in respondents' support. (8) Nor was the Convention mentioned in the brief of the United States supporting affirmance. (9) However, the representative of the government did contend at oral argument that under international law the immunity exists for the benefit of the state, not the individual--without noting that the Convention adopts that very approach. (10)

That these references found no traction with the Court may be unsurprising for another (and simpler) reason: the United States has not signed, much less ratified, the UN Convention, and indeed the Convention is not yet in force. However, as a result of the Court's decision in Samantar, U.S. courts are now required to determine the immunity of foreign government officials under the common law. (11) Because the Convention represents the most recent and carefully considered international thinking on the point, it may thus be taken as informative (some might even say a form of "soft law"). An examination of its provisions is therefore appropriate to determine how they might bear on the issue of the immunity of foreign government officials for acts taken in their official capacity.

1. BACKGROUND OF THE CONVENTION

   The UN Convention on Jurisdictional Immunities of States and Their Property was adopted by the UN General Assembly on December 2, 2004, ending more than a quarter of a century of intense international negotiations. (12) The Convention is the first modern multilateral instrument to articulate a comprehensive approach to the question of the immunity of sovereign states from suits in foreign courts. It was intended to codify existing principles of customary international law and to provide a basis for substantial harmonization of national laws in a vital area of transnational practice. (13) Although approved unanimously, it has yet to come into force. As of the beginning of October 2011, it had garnered thirteen of the required thirty ratifications (six in the past eighteen months alone: Kazakhstan, Switzerland, Japan, Saudi Arabia, France, and Spain), together with an additional eighteen signatures. (14)

   Substantively the Convention embraces the so-called "restrictive theory" of sovereign immunity. Until the early to mid-twentieth century, there was virtual unanimity in international law and practice that sovereigns (both states and heads of state) were absolutely immune from the jurisdiction of foreign courts (under the doctrinal maxim par in parem non habet imperium). (15) By contrast, under the more recent restrictive theory, states maintain their immunity when engaged in sovereign activities (acta jure imperii) but are treated as private entities when claims arise from their commercial transactions or "private law" activities (acta jure gestionis). (16) The Convention embraces that approach and, in accord with the most developed domestic practices, provides that governments (and their agencies and instrumentalities) are subject to essentially the same jurisdictional rules as private entities in respect of their commercial transactions. (17)

   The central exception is found in Article 10, which provides that a state cannot invoke immunity in a proceeding arising out of "a commercial transaction with a foreign natural or juridical person" when "by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State." (18) This exception does not apply in the case of a commercial transaction between states or if the parties to the commercial transaction have expressly agreed otherwise. (19)

   While that provision lies at the conceptual heart of the Convention, the limitations on immunity extend far beyond the exception for commercial transactions. Thus, Article 7 covers situations in which the state in question has expressly consented to the exercise of jurisdiction by the court with regard to a specific matter or case by international agreement, in a written contract, or by declaration or written communication. (20) Under Articles 8 and 9, a state cannot invoke immunity where it has itself instituted or intervened in a specific proceeding or taken any other step relating to the merits of that proceeding, nor can it avoid jurisdiction in respect of any counterclaim arising out of the same legal relationship or facts as the principal claim. (21)

   Other exceptions include, inter alia, claims arising from contracts of employment; (22) personal injury and damage to property; (23) ownership, possession, and use of property; (24) intellectual and industrial property; (25) participation in public companies; (26) state-owned or state-operated ships used for other than government noncommercial purposes; (27) and certain matters relating to arbitration proceedings. (28) The text also sets forth exceptions to protection from pre- and post-judgment measures of constraint. (29) Separate articles provide criteria for service of process and rendering default judgments. (30)

   Several of these provisions need to be read in light of related "understandings" adopted in response to various substantive difficulties which arose during the negotiations. (31) These understandings are set forth in the Annex to the Convention, which in accordance with Article 25 "forms an integral part of the Convention." (32) In addition, reference is appropriately made to the pertinent reports of the International Law Commission (ILC), to the reports of the Ad Hoc Committee, and to the General Assembly resolution adopting the Convention that together form relevant travaux prgparatoires. (33) Also relevant is a definitive statement by the chair of the Ad Hoc Committee, Gerhard Hafner, which the General Assembly expressly took into account in its resolution adopting the Convention and which is included in the Summary Records of the Sixth Committee. (34)

   For purposes of a proper interpretation of the Convention, attention must be drawn to two important limitations on the scope of application found in these extra-textual materials. First, it was clearly understood during the negotiations, and was so stated by the chair of the Ad Hoc Committee in his introductory statement to the Sixth Committee, that the provisions of the Convention do not cover criminal proceedings. (35) The General Assembly explicitly agreed with that interpretation in its resolution adopting the Convention. (36) Second, the Convention does not apply to military activities--a point expressly affirmed by the chair in his introductory statement and subsequently repeated by several ratifying states. (37)

   Article 4 sets forth the general rule that the Convention is not retroactive; that is, it does not apply to any question of jurisdictional immunities of states or their property arising in a proceeding instituted against a state before a court of another state prior to the Convention's entry into force for the states concerned. (38)

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