Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation

For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability

Congressional Authorization and the War on Terrorism

This Article presents a framework for interpreting Congress\u27s September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court\u27s plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUME Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the necessary and appropriate force that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists

Foreign Sovereign Immunity and Domestic Officer Suits

Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials

Sosa, Customary International Law, and the Continuing Relevance of Erie

Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This modern position came under attack by so-called revisionist critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court\u27s 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of self-executing federal common law. As this Article explains, the decision in Sosa did not in fact embrace the modern position, and, indeed, is best read as rejecting it. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (i.e., the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute ( ATS ), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa\u27s rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely admiralty and interstate disputes), and gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS; application of CIL to the war on terrorism; and the use of foreign and international materials in constitutional interpretation

Estimation and optimal designing under latent variable models for paired comparisons studies via a multiplicative algorithm

We consider:<BR/> 1. The problem of estimating the parameters of latent variable models such as the Bradley Terry or Thurstone Model by the method of maximum likelihood, given data from a paired comparisons experiment. The parameters of these models can be taken to be weights which are positive and sum to one;<BR/> 2. The problem of determining approximate locally optimal designs for good estimation of these parameters; i.e of determining optimal design weights which are also positive and sum to one

Phase-space analysis of bosonic spontaneous emission

We present phase-space techniques for the modelling of spontaneous emission in two-level bosonic atoms. The positive-P representation is shown to give a full and complete description and can be further developed to give exact treatments of the interaction of degenerate bosons with the electromagnetic field in a given experimental situation. The Wigner representation, even when truncated at second order, is shown to need a doubling of the phase-space to allow for a positive-definite diffusion matrix in the appropriate Fokker-Planck equation and still fails to agree with the full quantum results of the positive-P representation. We show that quantum statistics and correlations between the ground and excited states affect the dynamics of the emission process, so that it is in general non-exponential.Comment: 16 pages, 6 figure

Eigenspace techniques for active flutter suppression

The use of eigenspace techniques for the design of an active flutter suppression system for a hypothetical research drone is discussed. One leading edge and two trailing edge aerodynamic control surfaces and four sensors (accelerometers) are available for each wing. Full state control laws are designed by selecting feedback gains which place closed loop eigenvalues and shape closed loop eigenvectors so as to stabilize wing flutter and reduce gust loads at the wing root while yielding accepatable robustness and satisfying constrains on rms control surface activity. These controllers are realized by state estimators designed using an eigenvalue placement/eigenvector shaping technique which results in recovery of the full state loop transfer characteristics. The resulting feedback compensators are shown to perform almost as well as the full state designs. They also exhibit acceptable performance in situations in which the failure of an actuator is simulated

Possible petrogenetic associations among igneous components in North Massif soils: Evidence in 2-4 mm soil particles from 76503

Studies of Apollo 17 highland igneous rocks and clasts in breccias from the North and South Massifs have described magnesian troctolite, norite, anorthositic gabbro, dunite, spinel cataclasites, and granulitic lithologies that may have noritic anothosite or anorthositic norite/gabbro as igneous precursors, and have speculated on possible petrogenetic relationships among these rock types. Mineral compositions and relative proportions of plagioclase and plagioclase-olivine particles in samples 76503 indicate that the precursor lithology of those particles were troctolitic anorthosite, not troctolite. Mineral and chemical compositions of more pyroxene-rich, magnesian breccias and granulites in 76503 indicate that their precursor lithology was anorthositic norite/gabbro. The combination of mineral compositions and whole-rock trace-element compositional trends supports a genetic relationship among these two groups as would result from differentiation of a single pluton. Although highland igneous lithologies in Apollo 17 materials have been described previously, the proportions of different igneous lithologies present in the massifs, their frequency of association, and how they are related are not well known. We consider the proportions of, and associations among, the igneous lithologies found in a North Massif soil, which may represent those of the North Massif or a major part of it