Introduction

• Author: Ernesto Sanchez

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INTR ODU C T IO N

PRELIMINARY OVERVIEW

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).

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