8 Sovereign and Official Immunity
Curtis A. Bradley
- Immunity from jurisdiction — Heads of state and other senior officials — Peremptory norms / ius cogens — Terrorism, financing — Diplomatic immunity
This chapter discusses three types of immunity in U.S. litigation: the immunity of foreign governments and their agencies and instrumentalities; the immunity of diplomats and consular officials; and the immunity of other foreign officials. Foreign governmental immunity is addressed today the Foreign Sovereign Immunities Act, and both the historical practice predating the Act and its core provisions are considered here. Diplomatic immunity and consular immunity are addressed by multilateral treaties and this chapter describes those treaties and how they have been applied by U.S. courts. The most unsettled category of immunity concerns suits against other foreign government officials, including against sitting and former heads of state. The chapter describes how the lower courts, since the Supreme Court’s 2010 decision in the Samantar case, have been developing a common law of immunity for these cases, while also often giving deference to the views of the executive branch.