Document Type

Article

Disciplines

International Law

Abstract

Since his indictment on February 4, 1988,1 General Manuel Antonio Noriega [Noriega] has been popularly considered a notorious profiteer in the international narcotics trade and labeled an outlaw head of state.' Noriega is widely characterized as the de facto head of Panama, though he has not declared himself as such and is officially the Commandante of the Panamanian Defense Forces [PDF] . Since Noriega abrogated the Panamanian presidential elections of May 7, 1989, it has become increasingly clear that he intends to hold onto his dictatorial power despite the Panamanian people's opposition and the diplomatic pressures to the contrary exerted by the Organization of American States [OAS] and the United States." The indictment may have even strengthened Noriega's resolve.

The Noriega case is unique because it is the first criminal indictment ever prosecuted by the United States against an entrenched dictator.5 As a military dictator, Noriega is considered by many to be the defacto head of Panama 6 although the United States has steadfastly refused to officially recognize him as such.7 Noriega was allowed to make a special appearance, through counsel, to contest the court's jurisdiction after his indictment by the Federal Grand Jury sitting in Miami, Florida.' Noriega relied upon the doctrines derived from traditional foreign sovereign immunity, principally, head-of-state immunity and the act-of-state doctrine.' The court upheld the validity of the indictment and the court's jurisdiction for several reasons: deference to the Executive Branch which prosecuted this case, the determination of the State Department that Noriega was not recognized as the head of Panama, and the clearly illegal character of the alleged acts.

This note discusses the Noriega case and focuses on the head-ofstate immunity claim. It briefly outlines the background of head-ofstate immunity, the related act-of-state doctrine, and the arguments presented by Noriega and the government. It then analyzes Noriega's claim of head-of-state immunity vis-a-vis the act-of-state doctrine, the Foreign Sovereign Immunities Act of 1976 [FSIA]," and the international political considerations.

In view of the recent Supreme Court jurisprudence addressing the FSIA,' 2 this note suggests that head-of-state immunity cases should be decided under the FSIA.'3 It is also argued that the court was legally correct in upholding the validity of the indictment and its jurisdiction over Noriega. As a political decision of the Executive Branch, however, the indictment was a diplomatic failure because it was a unilateral act of law enforcement that failed to rally sufficient Latin American and Caribbean support. In fact the indictment was perceived as international meddling in the internal affairs of a sovereign nation. Only a multilateral, international effort to exert diplomatic and political pressure will result in a nation's effectively prosecuting a high-level, foreign government official like Noriega who is involved with international narcotics trafficking.

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