ATS vs. FSIA, ATS wins?

by Duncan Hollis

I’m interrupting my current teaching assignment in Rome (a tough gig I know) to flag for reader’s the U.S. Supreme Court’s decision today in Samantar v. Yousef (see here).  As Julian noted in an earlier post, the question before the Court in this case was whether the Foreign Sovereign Immunities Act (FSIA) immunized foreign government officials for their official acts.  For human rights activists, however, the case had real import for the future of litigation under the Alien Tort Statute (ATS).  Simply put, the FSIA already makes it difficult to bring an ATS suit vs. a foreign state directly (barring the application of one of that statute’s exceptions to immunity).  If the FSIA were read to also afford immunity to foreign officials who commit international law violations, the pool of possible ATS defendants would be quite small indeed (and, ironically, might end up being limited primarily to non-state actors for their complicity in bad acts performed by the very state and government officials who had immunity under the FSIA). 

The Court today, however, declined to go down that road.  Instead, it found that the FSIA does not apply to foreign government offcials.  I’d welcome commentary on what folks think this means for the future of ATS suits or the FSIA itself.  My own first take, however, is a simple one, namely, that human rights activists should be breathing a huge sigh of relief tonight.  The Court had a chance here to gut the ATS, and it declined to do so.  Now, maybe foreign government officials will eventually find an alternative path to immunity (the Court, for example, declined to address the question of whether such officials qualify for common law immunities).  But, at least in the near term, it seems foreign government offiicals remain inside the potential ATS defendant pool.

http://opiniojuris.org/2010/06/01/ats-vs-fsia-ats-wins/

5 Responses

  1. We will aslo see what the Court says on ATCA corporate liability when they hear the Pfizer case.  Lots of interesting stuff there – are corps “liable” under int’l law for starters.
    Another case they may take is Talisman the pls filed their cert petition from the 2nd Circuit ruling on Apr 15. Issue of purpose or knowledge standard for secondary liability (aiding/abetting and complicity) will be addressed if the Court takes it on.  There is indeed a split among the Circuits.

  2. I’d disagree with the suggestion that the “FSIA already makes it difficult to bring an ATS suit vs. a foreign state directly. . .” not on the grounds that it’s easy to do so under the ATS, but on the ground that it was (and, I would assume, is) substantially more difficult to do so under common law (law of nations) foreign state immunity.  It’s pretty hard to find a case from the War of 1812 (Schooner Exchange) to the Ford administration (FSIA) permitting plaintiffs to sue a foreign state, especially where the foreign state’s sovereign acts are at stake.  For Yousuf, I think the “hard part” has now officially begun.

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  1. [...] [Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case.]  At Opinio Juris, Duncan Hollis offers his initial reaction to the ruling: “[H]uman rights activists should be [...]

  2. [...] [Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case.]  At Opinio Juris, Duncan Hollis offers his initial reaction to the ruling: “[H]uman rights activists should be [...]

  3. [...] [Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case.]  At Opinio Juris, Duncan Hollis offers his initial reaction to the ruling: “[H]uman rights activists should be [...]