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I. OPENING PLAY: INTRODUCTION
In 2010, the Supreme Court ruled in Samantar v. Yousuf that the Foreign Sovereign Immunities Act ("FSIA") does not govern the application or determination of foreign official immunity.1 Instead, the Court found that the immunity of foreign officials was "properly governed by the common law."2 While the Court failed to explicitly define these common-law principles, it did note that the State Department would play a role in individual official immunity determinations.3 In the years since, the State Department has done just that. Through officially submitted Suggestions of Immunity and Statements of Interest, the State Department has rejuvenated its standards for granting foreign official immunity for both heads of state and current and former officials. These standards draw upon the foundational principles of customary international law for official immunity and establish the criteria by which officials are entitled to such immunity in the United States.
Nevertheless, this area of law is still fairly undeveloped. Courts struggle over questions of foreign official immunity and the appropriate amount of deference to give the State Department. This Note seeks to alleviate this ambiguity by demonstrating that the State Department's post-Samantar Suggestions of Immunity and Statements of Interest reveal a consistent and reliable framework for determining whether a foreign official is immune from suit. Courts should defer to the State Department's application of this framework and apply it themselves in the face of State Department silence.
This Note proceeds in five parts. Part II explains the dichotomy between status-based and conduct-based official immunity as well as a brief history of foreign sovereign immunity practice in the United States through the Samantar decision. Part III discusses the evolution of the Samantar litigation through the Supreme Court ruling and further developments on remand.4 In addition, Part III also discusses the recent Fourth Circuit decision holding that State Department determinations of head-of-state immunity are entitled to absolute judicial deference while determinations of foreign official immunity are not controlling.
Part IV presents detailed case studies of the post-Samantar State Department submissions in six head-of-state immunity cases and five foreign official immunity cases, analyzing the reasoning behind the Department's pronouncements on immunity and the level of deference claimed by the Department and awarded by the courts. Part V proposes a two-tiered...