The FSIA's Territiorial Reach

• Author: Ernesto Sanchez
• Pages: 45-48

45

3

THE F SIA’S TE R R IT O RI A L RE A C H

§ 3.1 INTRODUCTION

e presumption against U.S. statutes’ extraterritorial application, absent a contrary “armative

intention of the Congress clearly expressed,”1 stems from the view that Congress ordinarily

focuses solely on domestic matters.2 But extraterritoriality becomes an important matter in

FSIA litigation, which inevitably has a foreign nexus. As with the substantive law governing

causes of action plaintis assert, the FSIA’s territorial reach, set forth in its denition of the

“United States,” helps determine whether the physical location of a specic event, person, or

property will block a U.S. court’s jurisdiction.

§ 3.2 PERTINENT STATUTORY TEXT

Section 1603(c) of the FSIA denes the “United States” as follows:

e “United States” includes all territory and waters, continental or insular, subject to the

jurisdiction of the United States.

§ 3.3 PHYSICAL LOCATION AS A BASIS FOR

JURISDICTION OR DISMISSAL

e denition above is straightforward, encompassing the fty U.S. states, the District of

Columbia, and other U.S. territories (e.g., Puerto Rico, U.S. Virgin Islands).3 But the FSIA also

encompasses places where a U.S. territorial nexus may not be as apparent.

1. Equal Employment Opportunity Commission v. Arabian American Oil Co.,499 U.S. 244, 248 (1991) (“Aramco”);

see also Morrison v. Nat’l Australia Bank, 130 S. Ct. 2869, 2877 (2010) (same holding); but see United States v. Bow-

man, 260 U.S. 94, 98 (1922) (ruling that territorial presumption does not govern the interpretation of criminal statutes

that, by their nature, implicate the legitimate interests of the U.S. abroad); United States v. Corey,232 F.3d 1166, 1170

(9th Cir. 2000) (citing U.S. Supreme Court’s Bowman decision for proposition that “courts do not apply the territorial

presumption where it is not a reliable guide to congressional intent.”).

2. See Smith v. United States, 507 U.S. 197, 204 n.5 (1993) (“[T]he presumption is rooted in a number of consid-

erations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns

in mind.”).

3. See Argentine Republic v. Amerada Hess, 488 U.S. 428, 440 (1989) (“We construe the modifying phrase ‘conti-

nental and insular’ to restrict the denition of United States to the continental United States and those islands that are part

of the United States or its possessions; any other reading would render this phrase nugatory.”) (emphasis added); Ramirez

v. United States, 36 Fed. Cl. 467, 473 (1996) (ruling that FSIA’s waiver provision did not apply to United States in U.S.

action to enforce Honduran judgment against United States); Sablan Construction Co. v. Gov’t of Trust Territory of

Pacic Islands, 526 F. Supp. 135, 137 (D. N. Mar. I. App. Div. 1981) (ruling that Trust Territory of the Pacic Islands

was not a “foreign country” under FSIA where territory was subject to U.S. jurisdiction under trusteeship agreement

then in force); People of Saipan v. U. S. Dep’t of Interior,356 F. Supp.645, 655-56 (D. Haw. 1973) (ruling ), a’d as

modied on other grounds, 502 F.2d 90 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975); cf. also Burnet v. Chicago Por-

trait Co., 285 U.S. 1, 5-6 (1932) (“e term ‘foreign country’ is not a technical or articial one, and the sense in which

it is used in a statute must be determined by reference to the purpose of the legislation.”).e U.S. Department of the

Interior’s Oce of Insular Aairs coordinates federal policies over these territories. See U.S. Department of the Interior,

ForSovImmunAct_book.indb 454/11/13 3:31 PM