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Foreign officials immunity from jurisdiction in U.S. courts Probe

Author: ChengGuoJia
Tutor: QinXiaoCheng
School: Foreign Service Institute
Course: International law
Keywords: official immunity FSIA exceptions
CLC: DD916.2
Type: Master's thesis
Year: 2009
Downloads: 64
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Abstract

On international plane, there already exist several theories concerning immunity. Among these immunity theories, some uncertainties and disputes have emerged. All these kinds of immunities derive from the sovereign immunity doctrine or customary international law. While the official immunity shares this feature, its own characteristics give rise to many issues, which come to the fore these years.The United States has abundant of judicial practice in official immunity, which deserves our deeply study. This paper analyzed preliminarily above this topic.The FSIA and case laws provide four legal elements related to foreign official immunity: First, the relationship between the United States and the foreign state. Whether the United States recognized the foreign state and foreign government is the fundamental factor to decide the official’s status. Second, the timing factor. The status of foreign official was decided at the time: When the official performed the conduct or when the suit was filed in the U.S courts. Third, the official activities. Whether the official activities were in the officials’capacity authorized by their state? To act within his or her official capacity is the most important factor to decide whether the immunity is granted to the official. Last but not the least, the exceptions. There exist several exceptions in the FSIA. If the official activities fall within one of these exceptions, the immunity cannot be entitled to the foreign official. These exceptions are clearly listed in the FSIA.Besides these four legal elements, the court need take something else into consideration beyond: International law (international agreements and customary international law); the intent of executive branch (State Department’s Suggestion); the intent of defendant state; and the outcome of the decision to the international society.If a foreign official, whose state is recognized by the United States government, acts in his or her official capacity which is authorized by his or her state and not in violation of any jus cogens in international law, and his or her conduct is not located in these exceptions provided by the FSIA, when he or she is charged in the U.S. court for his or her conduct, his or her state does not waive his or her immunity under the state sovereignty and expresses to grant immunity to this official, and the U.S. government suggests to grant immunity to this official, this foreign official is highly likely to be entitle to subject jurisdictional immunity under the FSIA.Given the practice of the United States above and the status quo of China in the relevant area of practice, I am trying to get some illumination from the U.S. research of this doctrine and practice, which would be helpful in the practice and study of this area in China.

Foreign officials immunity from jurisdiction in U.S. courts Probe

Abstract

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