[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]
As Duncan has pointed out, if a U.S. court sought to exercise jurisdiction over the five Chinese officials indicted by a Pennsylvania grand jury for computer fraud, identity theft, economic espionage, and trade secret theft, the officials would likely claim entitlement to foreign official immunity because they acted on behalf of China. While state action is not a required element of any of the alleged crimes, it permeates the facts of this case, which Attorney General Eric Holder emphasized “represents the first ever charges against a state actor for this type of hacking.”
The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over foreign states and their agencies or instrumentalities, see 28 U.S.C. § 1604, although it remains unsettled whether the FSIA applies to criminal proceedings against entities. The FSIA does not apply to individual foreign officials, see Samantar v. Yousuf, except for the section creating a limited private right of action for state sponsored terrorism, 28 U.S.C. § 1605A(c). Rather, the immunity of current and former foreign officials is governed by applicable treaties (such as the Vienna Convention on Diplomatic Relations, implemented by the Diplomatic Relations Act) and, in the absence of a statute, the common law.
As Duncan indicates and Jack Goldsmith also notes, the question of foreign official immunity will only arise as a practical matter if the Chinese defendants come within the personal jurisdiction of a U.S. court. The officials could not claim status-based immunity unless they were heads of state, diplomats, or members of special diplomatic missions at the time of the legal proceedings. Instead, they would claim conduct-based immunity on the grounds that their acts were all performed on behalf of the Chinese state.
The decision to bring charges suggests that the USDOJ does not view the defendants as lawfully entitled to assert immunity for their alleged conduct. This could be for one of several reasons: (more…)