留学生宪法Law Essay [4]
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关键词:留学生宪法Law EssayUsa International Law司法管辖权FSIA
摘要:本文是一篇留学生宪法Law Essay,2010年4月在访问美国时,道路运输和高速公路部长卡迈勒?纳特因涉嫌参与1984年的锡克教徒暴乱问题而被联邦地区法院送去了通知。案件是司法部根据《外国人侵权索赔法案》对锡克教组锡克教徒的反人类,有辱人格的待遇和非法杀害的罪名提起诉讼。
immunity, however, does not extend to rulers after they have stepped down from office. [25]
Head-of-state immunity is usually granted only to heads of state and foreign ministers. [26] However, Courts have applied the doctrine to Prime Ministers as well. [27] Further, since the Head-of-State Immunity Doctrine arises from the notion that a State and its ruler are one, for purposes of immunity, and that heads of state must be able to freely perform their duties at home and abroad without the threat of civil and criminal liability in a foreign legal system [28] , other officials in the government can, arguably, seek immunity as well.
However, in El-Hadad v. Embassy of United Arab Emriates [29] , Minister of Higher
Education & Scientific Research was not allowed immunity. The Court held, “the head of state immunity doctrine…is limited only to the sitting official head of state. The Court declines to expand the head of state immunity doctrine to cover all agents of the head of state”. In First American Corp. v. Al-Nahyan, [30] the Court did not grant immunity to Minister of Defense of the United Arab Emirates. However, in Weixum v. Xilai [31] , China's former Minister of Commerce was allowed immunity.
(iii) Waiver of immunity
The government of a foreign state which is recognized by the Executive Branch may waive its head-of-state immunity. In the case In re Grand Jury Proceedings [32] , the former President of the Philippines and his wife were not shielded by head-of-state immunity from compulsory process of grand jury investigating possible corruption in American companies' arms contracts with the Philippines; this was because the acting Philippine government had waived whatever head-of-state immunity was enjoyed by the former President and his wife. The Court held that “failure to give effect to the current government's waiver would undermine the international comity that the head-of-state immunity doctrine was designed to promote.” [33]
Part III: Impact of the SC decision in Samantar v. Yousuf
The question of whether Head of State Immunity (and other common law immunities) is affected by the FSIA has come up numerous times, most recently before the US Supreme Court in Samantar v. Yousuf [34] . The answer to this would depend on whether the Courts have held the purpose of the FSIA to include codification of the common law principles of immunity. The answer to this is a unequivocal “No”, pursuant to several District Court decisions, as well as the Supreme Court one.
In Chuidian v. Philippine National Bank [35] , the Ninth Circuit had concluded that an individual acting in his or her official capacity on behalf of a foreign sovereign was entitled to immunity under the FSIA. However, the district court explicitly rejected the Ninth Circuit's view that the FSIA incorporates head-of-state immunity and thus provides the sole framework for analyzing such immunity claims; it held that:
“The view that the FSIA is inapplicable to a head-of-state comports with both the
history of the FSIA and its underlying policy of comity. The FSIA was not designed to apply to diplomatic or other consular officials. Instead, it was crafted primarily to allow state-owned companies, which had proliferated in the communist world and in the developing countries, to be sued in United States courts in connection with their commercial ac
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