ATS vs. FSIA, ATS wins?
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.