Overview of U.S. Foreign Sovereign Immunity Law and its Analysis

AuthorErnesto Sanchez
Many years after the Schooner Exchange decision established absolute foreign sovereign immu-
nity as U.S. law,1 U.S. courts began to take into account recommendations of the U.S. State
Department in resolving foreign sovereign immunity claims. As the Department increasingly
made recommendations based on the restrictive approach to foreign sovereign immunity in the
early half of the twentieth century, courts often ruled accordingly. e Department’s formal
adoption in 1952 of the restrictive approach for its analyses of foreign sovereign immunity
claims thus had the eect of unocially enshrining the approach into U.S. law.
Congressional concerns over whether the Department was consistently following its own
guideline, as opposed to having subjective political considerations inuence its recommenda-
tions, however, led to the 1976 enactment of the FSIA, which exclusively delegated foreign
sovereign immunity issues away from the Department to courts for resolution. By that time,
separate U.S. case, treaty, and statutory law had addressed four areas that also aected civil
actions against foreign governments and their agents: (1) act of state questions, whereby U.S.
courts generally decline to evaluate a foreign sovereign’s acts when those acts take place within
the sovereign’s territory;2 (2) diplomatic immunity;3 (3) consular immunity ;4 and (4) immuni-
ties for international organizations and related personnel. e FSIA consequently enabled the
government to establish a much more explicit legal framework to govern claims against foreign
states and their political subdivisions, as well as the governments, organs, agencies, and instru-
1. But see e Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 334-35, 355 (1822) (allowed claimants to recover a ship
that had once belonged to them, but that the Spanish government had seized and converted into a warship; ruled that
the warship would not be exempt from the ordinary operation of U.S. law under two conditions: (1) a proper case could
be made for restitution to the claimants, whose ship had been taken in violation of American neutrality with respect to
a conict between Spain and one of its South American territories, and (2) the goods on the ship would be landed from
the ship in U.S. ports by the U.S. government’s express permission).
Professor Joseph W. Dellapenna of the Villanova University Law School, who authored a 2003 treatise on lawsuits
against foreign governments and their corporations, has questioned whether later courts adequately accounted for e
Santissima Trinidad decision given their ultimate acceptance of absolute foreign sovereign immunity in the nineteenth
century on the basis of the Schooner Exchange decision. D at 26-27 (citing c ases). Indeed, whether later
court decisions accurately interpreted the Schooner Exchange decision remains a legitimate issue for debate since Chief
Justice Marshall, writing for the Court, veritably presaged the restrictive approach to foreign sovereign immunity and
the FSIA’s commercial activity exception by stating that where a “prince” acts in private commerce like a private party,
the prince “may be considered as . . . assuming the character of a private individual.”
2. Underhill v. Hernandez, 168 U.S. 250 (1897) (case that initially adopted act of state doctrine).
3. See generally VCDR (encompassing rights of foreign diplomats and provisions for foreign diplomatic missions;
adopted in 1961 and ratied by United States in 1972); U.S. Diplomatic Relations Act, 22 U.S.C. § 254b (extending
VCDR protection, subject to reciprocity considerations, to all diplomats regardless of whether the sending state is a
VCDR party).
4. See generally VCCR (governing rights of consuls and consular premises; adopted in 1963 and ratied in 1969).
ForSovImmunAct_book.indb 21 4/11/13 3:31 PM
T F S I  A D 
mentalities thereof.5 Remaining questions arising from the omission of an explicit reference in
the statute’s text to the immunity of individual foreign government ocials were resolved in
2010, when the U.S. Supreme Court ruled that common law, and not the FSIA, governed this
As late as 1926, the U.S. Supreme Court did not view foreign sovereign immunity as a mat-
ter exclusively within the executive branch’s purview. at year, in the case of Berizzi Brothers
v. e Pesaro (“e Pesaro”),7 the Court considered whether an Italian state-owned commer-
cial vessel was subject to U.S. jurisdiction in regard to a breach of contract claim.8 e State
Department viewed the vessel and dispute as purely commercial in nature, thus recommending
against immunity. But the U.S. Department of Justice disagreed and refused to submit the State
Department’s views for review by the district court that rst evaluated the case.9 e Supreme
Court ultimately agreed with the Justice Department, rearmed that absolute foreign sovereign
immunity was settled U.S. law,10 and armed the case’s dismissal.11
At roughly the same time, lower courts were also developing jurisprudence that did not con-
sistently adhere to either the absolute or restrictive approach, exemplied by varying case law
concerning when to extend immunity to state-owned companies in the wake of issues that arose
as to whether their property was being employed for sovereign or public purposes.12 But defer-
ence to State Department immunity recommendations, forwarded through the Justice Depart-
5. See generally CPIUN, Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 16 (framework governing rights of U.N. personnel
similar to diplomatic immunity; ratied by the United States in 1970); Agreement Relating to the Headquarters of the
United Nations, June 26, 1947, U.S.-U.N., 61 Stat. 3416, 11 U.N.T.S. 11 (akin to diplomatic immunity) (subsequently
supplemented and amended); IOIA, 22 U.S.C. § 288 et seq. (International Organizations Immunities Act (IOIA)
codifying specied immunities for international organizations and their personnel); see also, e.g., Exec. Order No. 9698,
11 Fed. Reg. 1809 (Feb.19, 1946) (executive order applying IOIA to United Nations); Exec. Order No. 9751, 11 Fed.
Reg. 7,713 (July 12, 1946) (executive order applying IOIA to International Monetary Fund and its personnel); Exec.
Order No. 13,042, 62 Fed. Reg. 18,017 (Apr. 9, 1997) (executive order applying IOIA to World Trade Organization
and its personnel).
6. Samantar v. Yousuf, 130 S.Ct. 2278, 2285-92 (2010) (rejecting suit against former Somali prime minister).
7. 271 U.S. 562 (1926).
8. Id. at 569-70 (attempt to take custody of vessel stemmed from failure to deliver goods to New York).
9. See e Pesaro, 277 F. 473, 479-80 n.3 (S.D.N.Y. 1921).
10. 271 U.S. at 574 (“We think that the [foreign sovereign immunity] principles [stated in the Schooner Exchange
decision] are applicable alike to all ships held and used by a government for a public purpose, and that when, for the
purpose of advancing the trade of its people or providing revenues for its Treasury, a government acquires, mans, and
operates ships in the carrying of trade, they are public ships in the same sense that warships are.”).
11. Id. at 576.
12. Compare, e.g., e Uxmal, 40 F. Supp. 258, 260-61 (D. Mass. 1941) (Mexican government did not establish right
to foreign sovereign immunity from seizure for a vessel, where government had to prove (a) both ownership and right of
possession and (b) that the vessel was engaged in a public service, while contribution to a corporate entity’s capital did
not render the entity a national agency entitled to immunity), with Oliver American Trading Corp. v. Mexico, 5 F.2d
659, 661 (2d Cir. 1924) (suit against Mexican national railway was in reality a suit only against the Mexican government
because the government operated the railway for a national purpose and was barred when codefendant Mexican gov-
ernment appeared in defense of the suit, thereby putting into eect a U.S.-Mexican treaty that provided for alternative
dispute resolution of U.S. citizens’ claims against Mexico), cert. denied, 267 U.S. 596 (1925).
ForSovImmunAct_book.indb 22 4/11/13 3:31 PM

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