Between Law and Diplomacy: the Conundrum of Common Law Immunity

• Publication year: 2019

Between Law and Diplomacy: The Conundrum of Common Law Immunity

Chimène I. Keitner

BETWEEN LAW AND DIPLOMACY: THE CONUNDRUM OF COMMON LAW IMMUNITY

Chimène I. Keitner^*

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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 U.S. 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. The original research and analysis offered in this Article provides the necessary foundation for approaching, and ultimately answering, persistent questions about what common law immunity entails. This research reveals that the deferential judicial posture of the 1940s was an aberration and that courts retain the authority to assess the rationales for varying degrees of judicial deference in different types of cases. Unpacking these cases points strongly towards the conclusion that, although the Executive Branch remains best situated to assess the potential foreign policy consequences of pending litigation, courts are ultimately

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responsible for making jurisdictional determinations, including decisions regarding common law immunity.

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Table of Contents

I. Introduction..........................................................................220

II. The Historical Roots of Foreign Official Immunity .... 225

A. EXECUTIVE DISCLAIMERS: SINCLAIR AND COLLOT..........2270
B. EXECUTIVE SUGGESTIONS: THE CASSIUS........................233
C. EXECUTIVE CLASSIFICATIONS: DIPLOMATS AND CONSULS.......................................................................240
D. EXECUTIVE PREDICAMENTS: THE SCHOONER EXCHANGE AND SPANISH CARGO.....................................................248

1. An Analysis of The Schooner Exchange..................248
2. An Analysis of The Santissima Trinidad................256

III. The Evolution of Common Law Immunity Doctrine.....266

A. THE RISE OF JUDICIAL DEFERENCE.................................267

1. The Tradition of Judicial Independence.................268
2. The shift Towards Judicial Deference.................... 278

B. THE ROLE OF "REASONS OF STATE".................................282
C. APPLYING "PRINCIPLES OF POSITIVE LAW"......................287

IV. Conclusion..........................................................................295

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I. Introduction

The question whether, and in what circumstances, jurisdictional immunities shield foreign officials from proceedings in U.S. courts has perplexed jurists since the Founding Era.¹ Yet the Supreme Court has addressed this issue only once in living memory.² In Samantar v. Yousuf, the Court held that the Foreign Sovereign Immunities Act of 1976 (FSIA) does not govern suits against foreign officials unless the foreign state is the "real party in interest."³ Although this decision clarified where the U.S. law of foreign official immunity cannot be found, it said little about where such law can be found, absent an applicable statute.⁴ Lower courts have thus been left to figure out what the non-statutory law of foreign official immunity entails.⁵

The doctrine of foreign state immunity—which is distinct from but related to foreign official immunity—rests on the proposition that one country cannot exercise jurisdiction over another without violating the core principle par in parem no habet imperium ("an equal has no power over an equal").⁶ In practice, however, the

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pervasiveness of cross-border travel and commerce creates a demand for the adjudication of transnational disputes in domestic courts, including disputes involving the activities of foreign states.⁷ Litigation involving foreign states and foreign officials can carry implications for the Executive Branch's conduct of foreign relations. As a policy matter, the United States' interest in providing a forum for vindicating the legal rights of its citizens and residents, and ensuring accountability for unlawful conduct, weighs against special treatment for foreign official defendants in U.S. courts. On the other hand, concerns about creating diplomatic tensions and legitimizing legal proceedings against U.S. officials in foreign courts pull in the opposite direction.

To determine the contours of foreign official immunity and the circumstances in which it can be invoked, one must first identify the source of the applicable law. The Samantar opinion offers scant guidance on this point. The Court indicated that "[t]he doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976," but it devoted less than one page to describing that development, which was not material to its interpretation of the scope of the FSIA.⁸ However, tracing the common law development of this doctrine is required to determine what "the common law of official immunity," which the Court identified as governing the immunities of foreign officials, entails.⁹ This Article draws on original archival research to provide the most comprehensive available account of the genesis of the doctrine of common law immunity from civil suit in U.S. courts.

Although "the common law of official immunity" referred to in the samantar opinion cannot necessarily be reduced to historical

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practice, it is certainly informed by it. This practice, in turn, was heavily influenced by judicial understandings of the requirements of international law.¹⁰ Because the Samantar Court took the position that the FSIA left the "common law of official immunity" unchanged, the question naturally arises: unchanged from what? The Executive Branch has, in recent years, asserted that it is entitled to absolute judicial deference if it informs a U.S. court that a current or former foreign official enjoys jurisdictional immunity for his or her conduct.¹¹ As Department of Justice attorney Lewis Yelin, writing in his personal capacity, has indicated, "[a]lthough denominated a 'suggestion' of immunity, the government's filing informs the courts that the Executive Branch's immunity determination is binding."¹² As I have previously recounted, however, this position is radically different from that of the Executive Branch in the Founding Era, which disclaimed the authority to instruct courts to dismiss claims on immunity grounds.¹³

This Article is divided into several main parts. Part I introduces the doctrines of foreign state immunity and foreign sovereign immunity. Part II excavates the practices and understandings associated with eighteenth- and nineteenth-century cases that challenged U.S. jurisdiction over claims involving foreign states. It

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focuses on doctrinally significant cases that have been cited in subsequent judicial opinions but are not well-documented or explored in the literature. It also revisits better-known cases in light of newly unearthed docket entries and diplomatic correspondence and explores the interplay between legal and diplomatic considerations in the resolution of these disputes.

Part III extends the historical narrative to encompass the twentieth century and recounts the previously untold backstories of a trilogy of cases involving foreign ships. In the latter two cases, the U.S. Supreme Court accepted a new, more robust role for the Executive Branch in making binding immunity determinations.¹⁴ These cases form the touchstone of the Executive Branch's current view that it is entitled to absolute judicial deference in cases involving claims to non-statutory forms of immunity. Part IV concludes.

Judicial deference to Executive Branch determinations regarding foreign ships does not self-evidently compel absolute deference in cases involving foreign officials. This is especially true where a foreign official's entitlement to immunity does not turn on whether the Executive Branch has recognized him or her as a bona fide representative of a foreign state. The question of degree of deference is more than merely academic. Although cases against foreign officials were relatively sparse during most of the twentieth century,¹⁵ the advent of modern human rights litigation inaugurated a new wave of cases against foreign officials for conduct such as torture¹⁶ and genocide.¹⁷ Today, in the twenty-first century, 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

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abuse.¹⁸ In a case decided in August 2019 by the U.S. Court of Appeals for the Ninth Circuit, the panel declined to decide "the level of deference owed to the State Department's suggestion of immunity" because giving the suggestion either "substantial weight" or "absolute deference" would have yielded the same result of dismissal.¹⁹ At the time of writing, a petition for certiorari was pending in another case in which the D.C. Circuit found that the defendants were "not entitled to foreign official immunity under the common law,"²⁰ in part because the State Department "never issued a request that the District Court surrender its jurisdiction."²¹

The development of common law immunity doctrine by the courts should take account of the historical immunity practice elucidated here. This research shows that the deferential judicial posture of the 1940s was an aberration and that courts remain free to examine the rationales for varying degrees of judicial deference in different types of cases. By holding that...