Suing foreign officials in U.S. courts: upholding separation of powers by limiting judicial abrogation of immunity.

Author:Hogarth, Sarah P.


As human rights atrocities continue to shock our world media, the international community is calling for ways to hold accountable the government actors who commit egregious acts of terror against their people. (1) Advocates have turned to U.S. courts as one arena in which violations of human rights may be vindicated. (2) Yet, no matter how commendable the fight for international human rights may be, there remains a fundamental jurisdictional bar to these suits: sovereign immunity.

Although sovereign immunity for foreign states has been codified in the Foreign Sovereign Immunities Act (FSIA), (3) the Supreme Court held in Samantar v. Yousuf that the FSIA does not codify immunity with respect to foreign officials or heads of state. (4) The Supreme Court opined, however, that a suit against a foreign official "may still be barred by foreign sovereign immunity under the common law." (5) The Supreme Court's holding in Samantar left it to the lower courts to decide how foreign official immunity should be treated under the "common law." (6) On remand, the Fourth Circuit concluded that foreign officials "are not entitled to foreign official immunity for jus cogens violations [of international law]," (7) which include atrocities such as genocide, (8) torture, and extrajudicial killing. (9) The court reasoned that because foreign officials may only claim immunity for acts "arguably attributable to the state," and "jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign," foreign officials are not entitled to immunity for jus cogens violations. (10) This conclusion, however, poses considerable problems, both constitutionally and pragmatically. Most importantly, submitting foreign officials to the jurisdiction of U.S. courts significantly affects U.S. foreign relations--an area delegated by the Constitution to the political branches. (11)

This Note will propose the constitutional framework courts should implement when suits are brought against individual foreign officials post-Samantar, specifically arguing that the constitutional allocation of foreign affairs powers requires U.S. courts to broadly insulate foreign officials from suit absent authorization from a political branch. (12) Part I examines the law of nations and its incorporation into the specific foreign relations powers delegated by the Constitution to the political branches, highlighting that the power to affect relations with foreign sovereigns resides in the political branches. Part II explains the Supreme Court's development of foreign sovereign immunity and the act of state doctrine--which were both informed by the law of nations--leading up to its decision in Samantar. Part III analyzes Samantar after remand, with particular emphasis on the Fourth Circuit's judicially created abrogation of immunity for foreign officials when plaintiffs allege violations of jus cogens norms of international law. This Part also describes the considerable problems, particularly constitutionally but also pragmatically, with recognition of a judicially created jus cogens exception to immunity.

Part IV proposes the constitutional framework under which analysis of a foreign official's amenability to suit should proceed. Specifically, this Note argues that the Constitution itself requires U.S. courts to abstain from entering a judgment against current and former officials of recognized foreign sovereigns, absent express authorization from a political branch. Therefore, the Fourth Circuit's judicially created abrogation of immunity for allegations of jus cogens violations runs afoul of the separation of powers because it usurps the constitutionally delegated powers of the political branches to shape U.S. foreign relations. Courts should first employ two separate immunity doctrines in suits involving foreign officials: status-based immunity, which bars suits against sitting heads of state and foreign officials, and conduct-based immunity, which bars suits for acts committed by officials in their official capacities. Finally, when suit is brought against an individual who was or is an official of a recognized sovereign for acts committed in his official capacity and within his sovereign territory, U.S. courts should invoke the act of state doctrine to dismiss the suit because it is impermissible for American courts to "sit in judgment on the acts of the government of another, done within its own territory," (13) absent express authorization from a political branch. By refraining from entering judgment in suits against foreign officials, U.S. courts uphold the constitutional allocation of foreign affairs powers to the political branches. (14)


    At the Founding, the law of nations provided the background upon which the drafters of the Constitution relied when allocating foreign relations powers among the branches. (15) Emmerich de Vattel's treatise, The Law of Nations, was well known to the Founders and informed "the men who ... drew up the Constitution of the United States." (16) The law of nations embodied certain "perfect rights" of sovereign nations, which "included the rights to exercise territorial sovereignty, conduct diplomatic relations, exercise neutral rights, and peaceably enjoy liberty." (17) These rights were "so fundamental that interference with any of them provided just cause for war." (18) In fact, "[o]f all the rights possessed by a Nation," Vattel wrote in The Law of Nations, "that of sovereignty is doubtless the most important, and the one which others should most carefully respect if they are desirous not to give cause for offense." (19) As an element of sovereignty, Vattel noted that "[n]o foreign State may inquire into the manner in which a sovereign rules, nor set itself up as judge of his conduct." (20) At the time of ratification, the perfect rights of sovereigns were well understood, and the Constitution was structured so as to empower the new federal government to "conduct foreign relations" in light of these perfect rights. (21)

    The Constitution allocates specific foreign relations powers to each of the political branches. (22) Article I grants Congress the power to, inter alia, "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations," (23) "declare War, grant Letters of Marque and Reprisal," (24) "raise and support Armies," (25) and "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." (26)

    Article II vests "[t]he executive Power ... in a President," (27) and provides that "[t]he President shall be Commander in Chief of the Army and Navy," (28) that "[h]e shall have Power, by and with the Advice and Consent of the Senate, to make Treaties," (29) that "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors," (30) and that "he shall receive Ambassadors and other public Ministers." (31) This power to send and receive ambassadors "enabled the political branches, on behalf of the United States, to recognize foreign nations as equal and independent sovereigns under the law of nations." (32) This allocation of powers granted the authority to conduct foreign relations to the federal political branches, and by implication, excluded the judiciary. (33) The role of the Court, then, in upholding the powers of the political branches is to understand perfect sovereign rights as default principles to be employed until either political branch properly exercises its power to infringe another nation's sovereign rights. (34)


    This Part explores the history of foreign sovereign immunity and the act of state doctrine, both of which arose out of the law of nations' understanding of a sovereign's "perfect rights." Although head of state immunity and the act of state doctrine in positive federal law can both be traced to Chief Justice Marshall's opinion in The Schooner Exchange, (35) they are now distinct concepts. Head of state immunity shields foreign individual officials from the jurisdiction of U.S. courts. (36) The act of state doctrine, on the other hand, prohibits courts from questioning the validity of an act of a foreign sovereign taken within its own territory, and thus merits dismissal of the suit for failure to state a claim on which relief may be granted. (37) Neither doctrine is expressly written into the Constitution, but denial of their protections to foreign sovereigns traditionally would have been just cause for war. (38) Today, it is not only unwise, but also an usurpation of the constitutional allocation of foreign affairs powers, for courts, by exercising jurisdiction or rendering judgment, to singlehandedly cause the United States to become mired in a foreign conflict; such power is reserved to Congress and the President. In the absence of a political branch exercising one of its powers, courts should broadly apply immunity doctrines and the act of state doctrine--thereby erring on the side of greater recognition of the perfect sovereign rights of foreign nations in order to preserve the Constitution's delegation of foreign affairs powers to the political branches.

    1. Head of State Immunity

      Head of state immunity arose out of the law of nations--"[the sovereign's] dignity alone, and the regard due to the Nation which he represents and governs ... exempts him from the jurisdiction of the [foreign] country." (39) Thus during the Framing, the person representing the sovereign would have been understood as immune from U.S. courts' jurisdiction. (40) This Section will explore the American development of head of state immunity and its incorporation of the law of nations from John Marshall's opinion in The Schooner Exchange (41) through modern head of state immunity. Modern head of state immunity still echoes the law of nations principle that a court, by...

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