[Cross posted at Phallacies. Whoops.]
Here’s an interesting order issued by a Bronx trial court denying Dominique Strauss-Kahn’s motion to dismiss a civil action filed against him by Nafissatou Diallo. DSK argued that the court lacked subject matter jurisdiction on the basis that DSK enjoyed absolute immunity from suit as a result of his position as head of the IMF. (DSK had to base his motion on absolute immunity, as opposed to “official acts” or “functional” immunity, because whatever happened in Sofitel Hotel plainly did not involve DSK acting in his official capacity.)
Because the Bretton Woods Agreement Act (codifying the Bretton Woods Agreement) only confers official acts immunity on IMF employees, DSK argued instead (a) that absolute immunity for heads of international agencies is a norm of customary international law and (b) that CIL is federal law binding on state courts by virtue of the Supremacy Clause. To establish that absolute immunity for heads of international agencies is a norm of CIL, DSK pointed to the Specialized Agencies Convention’s provision conferring such immunity. While the United States is not a party to that Convention, 118 other countries are, which, DSK argued, was adequate to establish that it stated a norm of CIL.
The New York trial court came close to conceding that head-of-agency absolute immunity is CIL, but nonetheless denied that it worked to bar the suit. It made three moves. First, it held that the IMF had opted out of the immunity conferred by the Specialized Agencies Convention, so the norm of CIL it reflected did not extend as far as DSK’s position. Second, it held that, to the extent CIL provides the default norms of federal law, the International Organizations Immunity Act, conferring only official acts immunity on employees of international organizations, superseded any norm of absolute immunity (including for heads of those organizations). Finally, it flagged the possibility that CIL is federal common law of the sort the Supreme Court in Erie v. Tompkins repudiated, as opposed to a residuum of federal common law that survives post-Erie.
Finally, in case you are wondering, the reason this suit has been filed in the Bronx is that, in New York, civil suits are filed in a litigant’s county of residence, and Diallo lives in the Bronx.
Update: Opinio Juris has a brief comment on the matter here.