International human rights law, foreign sovereign immunity, and national courts.

Position::International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Thursday, March 25, by its moderator, Curtis A. Bradley of Duke University School of Law, who introduced the panelists: Michael J. Edney, of Gibson, Dunn & Crutcher LLP; Rosanne van Alebeek, of the University of Amsterdam's Center for International Law; Sarah Cleveland, of the U.S. Department of State; and Samuel Estreicher, of New York University.*

* Sarah Cleveland and Samuel Estreicher did not submit remarks for the Proceedings.

INTRODUCTORY REMARKS BY CURTIS A. BRADLEY ([dagger])

As its title suggests, this panel considered the relationship between sovereign immunity and international human rights norms in national courts, particularly in civil suits seeking damages.

At the time of the panel, this relationship was at issue in two widely discussed pending cases--one in the U.S. Supreme Court and the other in the International Court of Justice. The case in the Supreme Court was Yousuf v. Samantar. (1) This case involved a suit brought under the Alien Tort Statute and the Torture Victim Protection Act against a former highlevel official of the Somali government for atrocities committed by the Somali military during the 1980s. The defendant argued that the suit was barred by the Foreign Sovereign Immunities Act, but the U.S. Court of Appeals for the Fourth Circuit had held that the Act does not apply to suits against individual officials and that, even if it did, it would not apply to suits against former officials. (2)

The case in the International Court of Justice was Germany v. Italy. (3) Germany was challenging a series of decisions in Italian courts in which the courts have awarded damages to victims of Nazi war crimes during Germany's occupation of Italy between 1943 and 1945. The most prominent of these decisions is the Ferrini v. Germany decision from 2004, which involved claims against Germany relating to the deportation of an individual from Italy to Germany to perform forced labor. (4) The court in Ferrini reasoned that a state's jurisdictional immunity in another nation' s courts does not extend to conduct that constitutes an international crime. Germany argues that there is in fact no such exception to sovereign immunity under customary international law.

We had four very well-qualified panelists to address this topic. In the order in which they spoke, the panelists were as follows:

Michael Edney, a lawyer at Gibson, Dunn & Crutcher who authored an amicus brief on behalf of several former U.S. attorneys general in support of the defendant in the Samantar case;

Rosanne van Alebeek, an assistant professor at the Amsterdam Center for International Law at the Amsterdam Law School, and author of a 2008 book, The Immunity of States and Their Officials in International Criminal Law;

Sam Estreicher, the Dwight D. Opperman Professor of Law at NYU, and an expert on U.S. foreign relations law as well as employment law, and someone who has been involved in Alien Tort Statute litigation; and

Sarah Cleveland, then-Counselor on International Law in the Legal Advisor's Office of the U.S. State Department, and also the Louis Henkin Professor in Human and Constitutional Rights at Columbia Law School.

Two of the panelists--Michael Edney and Rosanne van Alebeek--prepared written remarks for these Proceedings.

([dagger]) Richard A. Horvitz Professor, Duke Law School.

(1) 552 F.3d 371 (4th Cir. 2009), cert. granted, No. 08-1555 (Sept. 30, 2009).

(2) For additional discussion of the issues posed by this case, see Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation, 13 GREEN BAG 2D 9 (2009); Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity and Domestic Officer Suits, 13 GREEN BAG 2D 137 (2010).

(3) See Jurisdictional Immunities of the State (F.R.G.v. Italy), 2008 I.C.J. 44 (Dec. 23).

(4) See Ferrini v. Germany, Cass., sez. un., 6 nov. 2003, n.5044, ILDC 19.

REMARKS BY MICHAEL J. EDNEY *

The Supreme Court's decision in Samantar v. Yousuf will significantly affect the predictability of sovereign immunity for foreign government officials acting in their official capacity. At the heart of Samantar is a complex question of statutory interpretation, addressed at length by the parties in the case and described by Professor Bradley in his opening remarks. Much rides on the answer to that question: It either will leave foreign officials immune from suit under the Foreign Sovereign Immunities Act, or it will instead make foreign officials subject to the common law system of sovereign immunity, which heavily depends on the State Department's suggestion of immunity. The common law system proved"troublesome," the Supreme Court explained, because the State Department's practice of filing suggestions of immunity appeared unpredictable and based on diplomatic pressures and political considerations. (1) The result was that sovereign immunity standards were "neither clear nor uniformly applied." (2) The Foreign Sovereign Immunity Act was meant to address these shortcomings-Samantar will determine how effective Congress was in its attempt to do so.

Placing the sovereign immunity of foreign government officials in the hands of the State Department's views will have two consequences.

First, the executive branch will have less control, not more, over the foreign policy of the United States. This seems counterintuitive. After all, the common law system assigns almost dispositive weight to the State Department' s suggestions of immunity. (3) The Solicitor General's position in Samantar therefore was not a surprise because it would preserve the executive branch's discretion over each particular case of a foreign official requiring sovereign immunity. But a foreign official's sovereign immunity involves far more weighty issues than the disposition of his particular case, and the common law system shifts control over those more important issues away from the executive branch.

Selection of priorities and the identification of opportunities for progress with our foreign partners are at the heart of effective foreign relations. But when the decision on a foreign official's immunity rests with the executive branch in the first instance, private parties decide when the executive branch officials will take a position regarding a foreign government's actions. How? Simply by filing a lawsuit against a foreign official. Anyone with a bar license and an aggrieved client can set the agenda for U.S. foreign policy by filing a complaint against a foreign official. That complaint will force the United States to a choice on whether to expend its limited diplomatic resources to take a public position on the acts of a foreign government or its officials.

The State Department, of course, could prevent judicial scrutiny of the foreign governmental acts in question by suggesting immunity for the officer. But the filing of a lawsuit forces the executive branch to make a decision regarding the foreign government's conduct. With as little as a change in caption, every foreign sovereign act could be reached in a suit against the sovereign's officials. (Several of the Justices recognized this problem during the Samantar oral argument.) Although technically a legal issue, decisions on the sovereign immunity of foreign officials will be perceived as an endorsement or condemnation of the official's actions. Even the State Department's silence in the face of pending litigation, and judicial and foreign state requests to take a position on a case, will be perceived as negative commentary on the foreign official's actions.

That problem would not present itself if the FSIA applies to foreign governments and foreign officials. A lawsuit against a foreign official would not...

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