by Jeffrey Kahn
VOLUME 56 :: No. 1
VOLUME 56 :: No. 1
Affirmative Target Identification: Operationalizing the Principle of Distinction for U.S. Warfighters
The Tide of the Times? A Sectoral Approach to Latin America’s Resistance to the Investor-State Arbitration System
The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Soveriegn Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court recently held in Samantar v. Yousuf. Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body of federal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims that it holds constitutional power to make indvidual immunity determinations on a case-by- case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination.
I argue in this article that the executive branch lacks such "lawmaking" power. I examine the text and structure of the Constitution, functional and historical arguments, the Court's case law, and implied congressional authorization, and I reject each of these as possible grounds for the power asserted by the executive branch. Instead, I assert that the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds. Federal common law should be constrained in some respects, however, by the content of the FSIA, by customary international law, and by the views of the executive branch on certain discrete issues.
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