The Dog that Caught the Car: Observations on the Past, Present, and Future Approaches of the
The Supreme Court’s decision in Samantar v. Yousuf vindicated the position of the State Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S. The State Department will be lobbied both by foreign governments who want to protect their officials and by plaintiffs and human rights advocates who would like to recognize exceptions to official immunities. In deciding whether to
recognize the immunities of foreign government officials, the State Department will have to consider the reciprocal impact on U.S. officials who may be sued in foreign courts.