Introduction

• Author: Ernesto Sanchez
• Pages: 1-2

1

THE F SIA’S C ONC EP T U A L A N D

HIS TORICAL ROO TS

INTRODUCTION

is rst section of the book concentrates on the policy and international law principles under-

lying both the FSIA and the concept of foreign sovereign immunity in general. Readers who are

relatively unfamiliar with foreign sovereign immunity or international law will hopefully nd

this section to be particularly useful.

e international law of foreign sovereign immunity has gradually rejected the absolutist

view that foreign sovereigns should be exempt from domestic legal actions in all cases. Instead,

states have increasingly adopted a more restrictive approach that, at the very least, permits such

actions when they arise from activities that one would consider to be private or commercial if

they did not involve foreign sovereign entities. e FSIA incorporates this understanding into

domestic U.S. law. To this eect, the statute’s ndings and declaration of purpose cite:

• e need to transfer primary responsibility for resolving foreign sovereign immunity

claims from the U.S. Department of State to U.S. courts, which could more reliably apply

neutral legal standards and set aside subjective diplomatic and political considerations;1

• e aim of codifying the restrictive approach to foreign sovereign immunity that interna-

tional law had increasingly adopted;2 and

• e goal of establishing a specic legal framework in accordance with this more restrictive

approach to guide courts in the resolution of foreign sovereign immunity claims.3

A strong grasp of the relationship between U.S. law and international law consequently becomes

useful for understanding the FSIA’s policy objectives and its provisions mandating the use of

1. See 28 U.S.C. § 1602 (“e Congress nds 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.”); Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004)

(describing how, prior to FSIA’s 1976 enactment, courts would defer to U.S. State Department recommendations with

respect to claims of immunity by foreign sovereign defendants to U.S. civil actions, as well as how these recommenda-

tions were often inuenced by “political considerations [that] sometimes led the Department to le ‘suggestions of

immunity in cases where immunity would not have been available’”).

2. See 28 U.S.C. § 1602 (“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 satisfac-

tion of judgments rendered against them in connection with their commercial activities.”); see also H R at

6605 (statute’s legislative history describes congressional intent to “codify the so-called ‘restrictive principle’ of sovereign

immunity, as presently recognized in international law.”).

3. See id. (“Claims of foreign states to immunity should henceforth be decided by courts of the United States and of

the States in conformity with the principles set forth in this chapter.”).

PART I

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