What Is a Foreign State Proper?

• Author: Ernesto Sanchez
• Pages: 61-69

61

5

WH AT IS A FOR EIGN STAT E PROP ER ?

§ 5.1 INTRODUCTION

Prior to the FSIA’s enactment, such terms as “state” or “nation” or “sovereign state” had long

referred to a community of people within a dened territory governed by a central authority.1

e FSIA does not clarify what exactly comprises a foreign state alone.2 Neither is its legislative

history more descriptive in this regard.3 But the U.S. Supreme Court, citing to the Restatement

of the Law (3d) of Foreign Relations Law of the Unites States (“Restatement”) has stated that “[t]he

term ‘foreign state’ on its face indicates a body politic that governs a particular territory.”4

e Restatement itself denes a sovereign state (which it simply refers to as a “state”) as “an

entity that has a dened territory and a permanent population, under the control of its own

government, and that engages in, or has the capacity to engage in, formal relations with other

such entities.”5 is standard mirrors that of Article 1 of the 1933 Inter-American Convention

on the Rights and Duties of States, to which the United States is a party.6

In practice, statehood is usually not disputed.7 But courts have undertaken more extensive

analyses of whether entities constitute foreign states, or governments thereof, in the following

instances: (1) when the status of a state’s territory is in transition, exemplied by increasing

self-governance with the potential for eventual independence from another state (e.g., litigation

concerning the Palestinian Territories); (2) when a defendant entity not recognized as a state by

the United States nonetheless claims sovereign state status; and (3) foreign sovereign immunity

claims by the Holy See (Vatican City), which some commentators believe does not qualify as a

state. ese inquiries can implicate political questions “exclude[d] from judicial review [because

they are] controversies which revolve around policy choices and value determinations constitu-

tionally committed for resolution” by the executive branch and, to a lesser extent, the legislative

1. See, e.g., J.L . B, T L  N  (Humphrey Waldock ed., 6th ed. 1963) (referring to a “state”

as an “institution”); W E H, A T O I L  (A. Pearce Higgins ed., 8th

ed. 1924) (dening a state proper as a “community” independent of outside control that is permanently established for

a political end within a dened territory); T D W  T S W, I-

   S  I L § , at 34 (6th ed. 1901) (characterizing a state as a “community of

persons living within certain limits of territory” under an organization).

2. See, e.g., 28 U.S.C.§ 1603(a) (using the term “foreign state” in a manner encompassing foreign states, their politi-

cal subdivisions, and their agencies or instrumentalities in most instances).

3. See House Report at 6613 (the term “foreign state,” as used in section 1608 of the FSIA, “refers only to the sov-

ereign state itself”).

4. See Samantar v. Yousuf, 130 S.Ct. 2278, 2286 (2010) (citing R § ).

5. R § .

6. See Inter-American Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S.

19 (recognition as a “state” requires (a) a dened territory; (b) a permanent population; (c) an eective government; and

(d) the capacity to enter into relations with other states).

7. See, e.g., Auster v. Ghana Airways Ltd., 514 F.3d 44, 46 (D.C. Cir. 2008) (“Ghana’s status as a foreign state is

obvious.”).

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