Archive for the ‘Samantar v. Yousuf’ Category

My New Article in the Canadian International Lawyer

October 21, 2011

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.

A pdf copy of the article is available for download here.

Peter B. Rutledge, “Samantar, Official Immunity and Federal Common Law”

March 8, 2011

Peter B. Rutledge (University of Georgia Law School) has published “Samantar, Official Immunity and Federal Common Law”, Lewis & Clark Law Review, Forthcoming/UGA Legal Studies Research Paper No. 11-04. The abstract reads:

This essay examines the theoretical underpinnings of the immunity of foreign government officials following the Supreme Court’s recent decision in Samantar. Part of a forthcoming symposium with the Lewis and Clark Law Review, the paper tackles the federal common law in the Court’s decision and, more broadly, international civil litigation. It criticizes the Court’s unexamined assumption that its federal common law power extended to create an immunity that, at best, coexists only uncomfortably alongside the legislative framework of the FSIA. It explains the problematic implications of this assertion of federal common law, both for suits against foreign officials and for international civil litigation more generally. Drawing on a longstanding stream of statutory interpretation literature, the paper concludes that the Court should have declined to exercise its gap-filling authority in this context and, instead, employed an information-forcing default rule that would have induced congressional action in the field.

The paper is available for download at SSRN here.

Chimène I. Keitner on "The Common Law of Foreign Official Immunity"

September 29, 2010

Chimène I. Keitner (University of California, Hastings College of the Law) has posted a new paper on SSRN entitled, “The Common Law of Foreign Official Immunity”, Green Bag 2D, Vol. 13, Autumn 2010. Here’s the abstract:

In Samantar v. Yousuf, the U.S. Supreme Court unanimously rejected the argument that the Foreign Sovereign Immunities Act (FSIA) should be read to encompass all suits brought against individual foreign officials for acts performed in an official capacity. Instead, an individual defendant’s immunity “is properly governed by the common law.” Individual immunities fall into two categories: status-based immunities, which enable certain incumbent foreign officials to perform their duties unencumbered by legal proceedings; and conduct-based immunities, which shield individuals from legal consequences for some — but not all — acts performed during their tenure in office. International law, and many countries’ domestic laws, impose individual responsibility on officials who commit acts such as war crimes, genocide, and crimes against humanity, even when they commit these acts under color of law. Conduct-based immunity will not automatically shield individual defendants from the legal consequences of these acts, whether in the form of criminal penalties or civil damages. Although dismissing all human rights claims on immunity grounds might be an efficient way to clear the docket of these cases, neither historical practice nor common law doctrine justifies that result.


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