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Foreign Official Immunity After Samantar: A United States Government Perspective, Harold H. Koh
Foreign Official Immunity After Samantar: A United States Government Perspective, Harold H. Koh
Vanderbilt Journal of Transnational Law
I am delighted to speak here at Vanderbilt regarding the U.S. Government's perspective on Foreign Official Immunity after Samantar v. Yousuf.' In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court's …
Head Of State Immunity As Sole Executive Lawmaking, Lewis S. Yelin
Head Of State Immunity As Sole Executive Lawmaking, Lewis S. Yelin
Vanderbilt Journal of Transnational Law
At the request of the Executive Branch, courts routinely dismiss private suits against sitting heads of foreign states. Congress has never delegated authority to the Executive Branch to identify principles governing head of state immunity. The courts' practice thus appears inconsistent with the conventional view that the Executive Branch lacks authority to affect private rights unless authorized by Congress to do so. This Article argues that the Executive Branch's practice of determining head of state immunity is an example of sole executive lawmaking, deriving from the President's constitutional responsibility as the only authorized representative of the United States in its …