The Inheritance, Gift, and Immovable Property Exception

• Author: Ernesto Sanchez
• Pages: 163-165

163

THE I N H ER I TA N C E, GI F T, AN D IM MO VABLE

PRO PE RT Y E XCE P T IO N

§ 12.1 INTRODUCTION

e private/public function distinction underlying restrictive foreign sovereign immunity

explains the FSIA’s denial of immunity with respect to actions asserting rights in real or per-

sonal property obtained by gift or inherited by a defendant qualifying as a “foreign state” under

the statute and situated in the country where the suit is brought.1 Simply put, as the statute’s

legislative history contends, “in claiming rights in a decedent’s estate or obtained by gift, the

foreign state claims the same right which is enjoyed by private persons.”2

With respect to immovable property, the Tate Letter stated that foreign sovereign immunity

should not be granted with respect to real property located in the United States, save for dip-

lomatic and consular property.3 But the FSIA’s legislative history, addressing the Tate Letter’s

distinction, dierentiated between immunity from subject matter jurisdiction, which concerned

the “adjudication of rights” in a property, and immunity from enforcement measures.4

In this regard, the VCDR merely provides that the “premises of [a diplomatic] mission,

their furnishings and other property thereon and the means of transport of the mission shall

be immune from search, requisition, attachment or execution.”5 Actions short of attachment

or execution, the legislative history consequently concludes, “seem to be permitted under the

[VCDR],” meaning that “a foreign state cannot deny the local state the right to adjudicate ques-

tions of ownership, rent, servitudes, and similar matters, as long as the foreign state’s possession

of the premises is not disturbed.”6 e less restrictive VCCR takes the same position.7 Consis-

tent with these guidelines, the pertinent FSIA exception is quite straightforward.

§ 12.2 PERTINENT STATUTORY TEXT

28 U.S.C. § 1605(a)(4) states:

A foreign state shall not be immune from the jurisdiction of courts of the United States

or of the States in any case . . . in which rights in property in the United States acquired

1. See House Report at 6619.

2. Id.

3. 26 D’ S. B. ,  ().

4. See House Report at 6619.

5. VCDR art. 22(3).

6. House Report at 6619.

7. Cf., e.g., VCCR art. 31(4) (“e consular premises, their furnishings, the property of the consular post and its

means of transport shall be immune from any form of requisition for purposes of national defence or public utility.

If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding theperformance of

consular functions, and prompt, adequate and eective compensation shall be paid to thesending State.”).

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