The U.S. Foreign Sovereign Immunities Act

In order to give context to subsequent posts about U.S. federal court decisions regarding immunity for former foreign government officials, this post will sketch some of the provisions and issues in the U.S. Foreign Sovereign Immunities Act (FSIA) of 1976.[1]

Congress in FSIA found that under “international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities.” Congress also found in FSIA that “the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts.” (28 U.S.C. § 1602.)

As a result, FSIA grants to U.S. district courts “original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title [Title 28] as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” (28 U.S.C. § 1330(a).)[2]

Under the statute a foreign state is presumptively immune unless one of the statutory exceptions applies. (28 U.S.C. § 1604.)

Some of the important exceptions to sovereign immunity are waiver (28 U.S.C. § 1605(a)(1)), commercial activity (28 U.S.C. § 1605(a)(2)), noncommercial tort (28 U.S.C. § 1605(a)(5)) and state-sponsored terrorism (28 U.S.C. § 1605(a)(7).[3]

For the purposes of this statute, a “foreign state” is defined to include “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” (28 U.S.C. § 1603(a).) The term “agency or instrumentality of a foreign state” in turn is defined in section 1603(b) as “any entity–

  • (1) which is a separate legal person, corporate or otherwise; and
  • (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
  • (3) which is neither a citizen of a State of the United States as defined in section 1332   (c )and (d) of this title [Title 28], nor created under the laws of any third country.”

[1]  See generally David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 1001-14 (4th ed. 2009); Wikipedia, Foreign Sovereign Immunities Act.

[2] Prior to FSIA, questions of such immunity were determined primarily by the Executive Branch, which were generally followed without question by the courts.

[3] An earlier post looked at a U.S. Court of Appeals for the Second Circuit case regarding the exception for noncommercial tort.

 

U.S. courts

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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