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s in the enquiry in one approach, but not in the other. Which approach the State Department chooses to follow in our case will ultimately determine whether or not immunity will be granted. Both these approaches are described below.

(a) Approach 1: Where the alleged act is a consideration

The landmark judgment of US v. Noreiga states that “a head of state is not subject to the jurisdiction of foreign courts, at least as to official acts taken during the ruler's term of office.” [12] [emphasis added] Numerous cases suggest that the “inquiry examines whether the official was ‘authorized’ to perform the act at issue” [13] , and that an official’s immunity only extends to the actions that the sovereign empowers him to do. [14]

If this approach is followed, the question of presumption may arise. Acts that a public person performs are presumed to be as acts done within official capacity. [15] However, if this approach is adopted, and the allegation is of violation of an international treaty, or violation of preemptory norms of international law – i.e. jus cogens norms – then the presumption is that they were not performed within the official capacity of the Head of State. [16]

(b) Approach 2: Where the alleged act is not a consideration

This approach arises from the landmark judgment of Lafontant v. Aristide. [17] The District Court held unequivocally that “[a] head-of-state recognized by the United States government is absolutely immune from personal jurisdiction in United States courts unless that immunity has been waived by statute or by the foreign government recognized by the United States”. [18]

The Court divided its inquiry into three questions: (1) was Aristide a head-of-state; if so, (2) had Aristide's immunity been waived by Haiti; and, if not, (3) does the FSIA provide a waiver for head-of-state immunity. [19] Because the State Department indicated that the United States recognized Aristide as the head of Haiti, the court concluded that Aristide was absolutely immune from suit, absent a waiver. The court went on to find that neither Haiti nor Congress via the FSIA had waived Aristide's immunity. The Court, therefore, held that “President Aristide is the head-of-state of the Republic of Haiti who is recognized by the U.S. government. He enjoys head-of-state immunity unless there has been a waiver of immunity”. [20]

This judgment is particularly helpful as it states that immunity cannot be overlooked or bypassed even if the acts are alleged to be “private, unauthorized criminal acts”. [21] Indeed, the Court expressly said that “[w]e need not consider whether an act of President Aristide in ordering the killing would be official or private because he now enjoys head-of-state immunity. The courts are barred from exercising personal jurisdiction over him”. [22]

Therefore, if the State Department adopts the approach followed in the Lafontant Case, only the recognition of the official as a Head of State (and the absence of a waiver) will be the deciding factor in granting immunity.

(ii) Who can claim the immunity?

The immunity extends only to the person the United States government acknowledges as the official head-of-state. [23] In order to assert head of state immunity, a government official must be recognized as a head of state. Noriega has never been recognized as Panama's Head. [24] The