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11. Lessons from the Past for Foreign Sovereign Immunity After Samantar v. Yousuf

Author:
Saurrabh Sanghvi
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In Samantar v. Yousuf,2 the Supreme Court held that an individual sued personally for acts taken as a foreign official did not enjoy any immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), a statute governing when courts should provide foreign states with sovereign immunity.3 After Samantar, immunity in any individual official suit will likely be determined through reference to the pre-FSIA federal common law. This report outlines the pre-FSIA practices4 of the U.S. Department of State (“State Department”) and the courts to provide insight into how individual official suits may be handled in the wake of Samantar.5 If courts follow historical practice, they will likely rely heavily on State Department “suggestions of immunity” in determining whether immunity will be granted to individuals for actions taken as foreign officials. Moreover, when the Department is silent, the courts will likely interpret State Department policy to determine whether immunity is appropriate.
Topic:
Foreign Policy, Law, Legal Theory, and Immunity
Political Geography:
North America and United States of America

12. THE ROLE OF THE COMMITTEE TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

Author:
Chelsea Purvis
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report analyzes the role of the Committee to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). It provides an overview of the Committee’s mandate under CEDAW, finding that its mandate is similar to those of other human rights treaty bodies to which the United States reports. Like other human rights treaty bodies, the CEDAW Committee engages with States parties through a process of dialogue. It cannot consider complaints from individuals against states that have not ratified CEDAW’s Optional Protocol. The report then reviews the principle criticisms of the Committee by opponents of U.S. ratification of the Convention, exploring both the Committee’s most controversial recommendations and its contested legal authority. It discusses the contexts in which the Committee has made its most controversial recommendations and notes that each recommendation has had limited practical effect. The report explains that the CEDAW Committee does not have the legal authority to compel a State party to modify its law or values. If the United States were to ratify the Convention, the Committee’s findings and recommendations would have no direct binding legal authority under either domestic or international law. Finally, the report considers the effect that American participation might have on the Committee. U.S. ratification of CEDAW would allow the United States to contribute to the Committee’s process of dialogue. The United States has found engagement with other human rights treaty bodies productive, even though it does not consider recommendations made by human rights committees to be legally binding. U.S. ratification would also permit the United States to participate in the selection of Committee members, making it more likely that Committee recommendations would even more fully reflect U.S. standards.
Topic:
Gender Issues, Law, Women, and Discrimination
Political Geography:
United States of America and North America