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15 Lewis & Clark L. Rev. 633 (2011)
Samantar and the Future of Foreign Official Immunity

handle is hein.journals/lewclr15 and id is 649 raw text is: SAMANTAR AND THE FUTURE OF FOREIGN OFFICIAL IMMUNITY by David P. Stewar The U.S. Supreme Court's recent decision in Samantar v. Yousuf resolved a long-standing issue of U.S. law by determining that the Foreign Sovereign Immunities Act does not apply to claims brought against individual foreign government officials, as opposed to the foreign government itself The Court also said, however, that individual officials might instead be entitled to immunity under common law principles of foreign sovereign immunity. In remanding the case for a determination of that question, the Court effectively required the executive branch to clarify the circumstances in which such immunity might apply to visiting officials of foreign government for actions taken by them on behalf of their governments. This Article examines the background and reasoning of the Samantar decision as well as the subsequent determination of the U.S. government to deny immunity in the circumstances of that case. It contrasts that determination with a submission by the executive branch in a separate case recommending that limited testimonial immunity for a former President of Columbia. In this developing area of the law, these two submissions presumably reflect the executive branch's considered view of how relevant legal principles of customary international law should be applied in future cases as well. The Article raises a number of questions about the practical as well as theoretical implications of the government's position. I. INTRODUCTION .......................................... 634 II. THE DOCTRINE OF SOVEREIGN IMMUNITY...... ...... 636 III. THE SAMANTAR DECISION .................... .... ...... 644 IV. SUBSEQUENT DEVELOPMENTS ........... ............ 648 V. DOCTRINAL IMPLICATIONS .................. .............. 651 VI. THE URIBE SUBPOENA. ......................... ..... 659 VII. CONCLUSION ......................................... 662 Visiting Professor (International and Transnational Law), Georgetown University Law Center, stewartd@law.georgetown.edu. Professorial Lecturer, Johns Hopkins University School of Advanced International Studies. Member, Inter- American juridical Committee. The author previously served as Assistant Legal Adviser, U.S. Department of State. 633

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