AuthorErnesto Sanchez
Foreign state immunity, a central feature of international law,1 bars private domestic civil
actions against foreign states or governments without their consent.2 National law can extend
foreign state immunity to the organs, instrumentalities, or individual agents of a foreign state
or government,3 as well as preclude foreign state immunity with respect to particular claims.4
Underpinning foreign state immunity policies in any case are national governments’ respective
perceptions of their interests in maintaining harmonious foreign relations.
In the United States, foreign state immunity is usually referred to as “foreign sovereign
immunity,” which might better reect how the concept of state immunity can also encompass
agents and instrumentalities of a state. e Foreign Sovereign Immunities Act of 1976 (FSIA)
codies this immunity into domestic law,5 dening the term “foreign state” to include foreign
1. R §  (dening international law as “rules and principles of general application dealing with the
conduct of states and of international organizations and with their relations inter se [i.e., among themselves], as well as
with some of their relations with persons, whether natural or juridical”).
2. See A A, H  I L  () (“A State can always waive its immunity by
consenting to proceedings, and do so in advance.”); B at 324 (“e concept of state immunity is treated very
often in the context of statements in which the immunity features as a bar to a jurisdiction of the state of the forum
which would exist but for the doctrine of immunity, and which can be waived by the beneciary state.”) (emphasis in
original); F at 1 (“Immunity is a plea relating to the adjudicative and enforcement jurisdiction of national courts
which bars the municipal court of one State from adjudicating the disputes of another state.”).
In international law parlance, the term “state” denotes countries or nation-states—communities of people within
dened territories governed by central authorities. See, e.g., R §  (“e term ‘foreign state’ on its face
indicates a body politic that governs a particular territory.”); M at 3 (“e eld of international law is principally
concerned with legal norms that operate among nations (often referred to as “states”), but it is also concerned with certain
legal norms that regulate the transboundary relationship of persons.”). Like individuals or corporations, states have
legal personalities enabling them to exercise rights and assume responsibilities and liabilities. Cf. 28 U.S.C. §§ 1332(a)
(4) (“e district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds . . .
$75,000, exclusive of interest and costs, and is between . . . a foreign state . . . as plainti and citizens of a [U.S.] State or of
dierent [U.S.] States.”) (emphasis added); 1603(a)-(b) (dening a foreign state’s agencies or instrumentalities as legal
personalities “separate” from the foreign state itself).
3. See, e.g., Australia Foreign States Immunities Act (a “state” includes heads of state acting in their public capacities
and individual government departments, denying either defendant immunity with respect to claims arising from such
specied activities as commercial transactions); Canada State Immunity Act (a “foreign state” includes heads of state
or political subdivisions of states acting in a public capacity, agencies of foreign states, and foreign states’ political sub-
divisions, also setting forth such instances as claims arising from commercial activities from which defendants cannot
invoke immunity); U.K. State Immunity Act (a “state” includes “sovereign[s] or other head[s] of [state]” in their public
capacities, a state’s government or departments thereof, while immunity from suit, subject to such exceptions as claims
arising from commercial transactions, also extends to “separate entit[ies]” acting under “sovereign authority”).
4. See, e.g., R §  (“Under international law, a state or state instrumentality is immune from the
jurisdiction of the courts of another state, except with respect to claims arising out of activities of the kind that may be
carried on by private persons”).
5. 28 U.S.C. §§ 1330, 1332(a)(4), 1391(f), 1441(d), 1602-1611; but see also infra Pt. III, Ch. 21 (describing frame-
work for foreign sovereign immunity in bankruptcy cases).
ForSovImmunAct_book.indb 19 4/11/13 3:31 PM

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT