The Foreign Sovereign Immunities Act of 1976 (FSIA) is a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 of the United States Code, that established criteria as to whether a foreign sovereign state (or its political subdivisions, agencies, or instrumentalities) is immune from the jurisdiction of the United States' federal or state courts. The Act also establishes specific procedures for service of process, attachment of property and execution of judgment in proceedings against a foreign state. The FSIA provides the exclusive basis and means to bring a civil suit against a foreign sovereign in the United States. It was signed into law by United States President Gerald Ford on October 21, 1976.
History Foreign state immunity has a long history in U.S. courts. In an early case, The Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812), the Supreme Court held that a private party could not sue the government of France. The Court concluded that a plaintiff cannot sue a foreign sovereign claiming ownership to a warship which had taken refuge in Philadelphia. Following international practice and common law principles, U.S. courts routinely refused to hear claims against foreign governments, even where those claims related to commercial activities. The U.S. State Department followed the absolute theory of immunity for foreign states, and courts generally relied on suggestions of immunity by the State Department in actions against foreign sovereigns. In 1952, the U.S. State Department, noting changes in international practice, adopted the restrictive theory of sovereign immunity according to which the public acts (jure imperii) of a foreign state are entitled to immunity, while the private acts (jure gestionis) are not.Letter, dated 19 May 1952, from the U.S. State Department's Acting Legal Adviser Jack B. Tate to the Acting Attorney-General (26 State Dept. Bull. 984 (1952).
The United States was the first country to codify the law of foreign sovereign immunity by statute.Feldman, Mark, Foreign Affairs Oral History Collection, Association for Diplomatic Studies and Training, https://adst.org/OH%20TOCs/Feldman.Mark.pdf p.76 The FSIA had three broad objectives: (1) to transfer responsibility for immunity determinations from the Department of State to the judiciary; (2) to define and codify the "restrictive" theory of immunity; and (3) to provide a comprehensive, uniform regime for litigation against foreign states and governmental agencies.
Though the Act places the determination of sovereign immunity fully in the hands of the judiciary, many courts have expressed reluctance to find that a defendant is a sovereign if the "state" in question is one that the U.S. government has not officially recognized, even if the defendant may arguably satisfy the definition of statehood under international law.
The enactment of the Justice Against Sponsors of Terrorism Act in 2016 has allowed U.S. citizens to sue foreign powers over terrorist acts committed on U.S. soil.
Jurisdictional statute The FSIA is a jurisdictional statute. It indicates what conditions must be met in order for a lawsuit against a foreign state to be instituted, not what conduct by a foreign sovereign is actionable.Cassirer v. TBC, U.S. (2022). If a foreign defendant qualifies as a "foreign state" under the FSIA, the Act provides that it shall be immune to suit in any U.S. court—federal or state—unless a statutory exception to immunity applies. The applicability of an exception to immunity is a matter of subject-matter jurisdiction, meaning if there is no exception to immunity, a court cannot hear the claim and must dismiss the suit. In Verlinden B.V. v. Central Bank of Nigeria, the defendant challenged the jurisdiction of the district court, saying that FSIA could not give jurisdiction to the district court since it was not a case "arising under" federal law. The Supreme Court found that since any invocation of jurisdiction under the FSIA would necessarily involve analysis of the exceptions to FSIA, FSIA cases by definition arise under federal law.
Under the FSIA, the burden of proof is initially on the defendant to establish that it is a "foreign state" under the FSIA and therefore entitled to state immunity. "Foreign state" is defined at 28 U.S.C. § 1603(a),(b). Once the defendant establishes that it is a foreign state, for the lawsuit to proceed, the plaintiff must prove that one of the Act's exceptions to immunity apply. The exceptions define both the types of actions as to which immunity does not attach and the territorial nexus required for adjudication in U.S. courts. The Act creates a form of long-arm statute establishing jurisdiction over claims that meet the criteria.
The exceptions are listed at 28 U.S.C. §§ 1605, 1605A, and 1607. The most common exceptions are when the foreign state waives immunity (§ 1605(a)(1)) or agrees to submit a dispute to arbitration (§ 1605(a)(6)), engages in a commercial activity (§ 1605(a)(2)), commits a tort in the United States causing "personal injury or death, or damage to or loss of property" (such as a common traffic collision) (§ 1605(a)(5)), or expropriates property in violation of international law (§ 1605(a)(3)). The FSIA also excludes immunity in cases involving certain counterclaims (§ 1607) and admiralty claims (§ 1605(b)). Section 221 of the Antiterrorism and Effective Death Penalty Act of 1996 added an exception for U.S. victims of terrorism, for any government designated by the State Department as a state sponsor of terrorism. The Flatow Amendment was also added in 1996, named after lawyer Stephen Flatow who fought to sue Iran over the suicide bombing that killed his daughter Alisa in 1995, which made those responsible for such attacks liable in court.
In response to Cicippio-Puleo v. Islamic Republic of Iran, which made it difficult to bring private cause of action lawsuits against foreign states even with the Flatow Amendment, the National Defense Authorization Act for Fiscal Year 2008 greatly expanded the terrorism exceptions by moving these as a whole to § 1605A, making foreign states liable for the actions of their officers in cause of action lawsuits, and expanding exceptions for torture, extrajudicial killing, aircraft sabotage, and hostage-taking.
In 2016, the Justice Against Sponsors of Terrorism Act removed the requirement that a state sponsor of terrorism be officially listed, so that victim families of the September 11 attacks could sue Saudi Arabia.
Scope and applicability Retroactive application In 2004, the Supreme Court held in Republic of Austria v. Altmann, 541 U.S. 677 (2004) that the FSIA applies retroactively. That case involved a claim by the descendants of owners of famous paintings against the Austrian government for return of those paintings, which were allegedly seized during the Nazi era. As a consequence of Altmann, for lawsuits filed after the enactment of the FSIA (1976), FSIA standards of immunity and its exceptions apply, even where the conduct that took place prior to enactment of the FSIA.See Note, 79 Tul. L. Rev. 1113 (2005) (discussing history of FSIA).
Exclusive basis for suit In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), the Supreme Court held that the FSIA provides the "sole basis for obtaining jurisdiction over a foreign state". In that case, a Liberian-owned oil tanker which was traveling outside of the "war zones" designated by the United Kingdom and Argentina during the Falklands War in 1982 was struck by an air to surface rocket fired by an Argentine jet. The shipping company sued Argentina in federal court claiming that Argentina's actions violated the Alien Tort Statute 28 U.S.C. § 1350 and general admiralty law. Because the Court found that the FSIA provided the exclusive means of suing the foreign sovereign, the Court determined that the plaintiffs were not permitted to bring suit under the Alien Tort Statute or general admiralty law.
Definition of "foreign state"
The FSIA only applies to lawsuits involving a foreign state. The FSIA defines (28 U.S.C. § 1603(a)) "foreign state" to include three entities: A foreign state A political subdivision of a foreign state An agency or instrumentality of a foreign state
"Agency or instrumentality" is then defined (28 U.S.C. § 1603(b)) as any entity which has a separate legal identity and is either: an "organ of a foreign state or political subdivision", or has a "majority of ... shares or other ownership interest" owned by a foreign state or political subdivision.
In Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), the Supreme Court determined that in order for a government owned corporation to qualify as a foreign state under the FSIA because a majority of its "shares or other ownership interest" are owned by a foreign state or political subdivision, the foreign state must directly own a majority of the corporation's shares. In Dole, two chemical corporations indirectly owned by the Israeli government sought to remove a case from a Hawaii state court to the United States District Court for the District of Hawaii on the basis that the FSIA applied. The Supreme Court concluded that because the Israeli government did not directly own a majority of the companies shares, the corporations could not be considered foreign states and the FSIA therefore did not apply. The court specifically rejected the companies' argument that Israel's majority interest in the companies through indirect ownership qualified as an "other ownership interest" under the FSIA or that Israel's actual control over the corporations would qualify. In reaching its conclusion, the court also held that the determination as to whether a defendant qualifies as a foreign state is made at the time the plaintiff files the complaint.
There had been disagreement among the courts as to whether an individual government official is covered by the FSIA, and therefore immune to suit according to its provisions or whether traditional (pre-FSIA) common law rules of immunity apply. The majority of Federal Courts of Appeals had concluded that individuals are covered under § 1603(b) as "agencies or instrumentalities" of foreign states. See In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008) (finding Saudi government officials to be entitled to immunity under the FSIA). Other courts however, noting that the language and structure of the FSIA and particularly § 1603(b) appear to contemplate that entities and not individuals are covered by the "agency or instrumentality" definition, had concluded that individuals are not entitled to immunity under the FSIA. See Yousuf v. Samantar, 552 F.3d 371 (4th Cir. 2009) (holding that former Somalian government official is not covered by, and therefore entitled to immunity under the FSIA and remanding to District Court to determine whether defendant is entitled to common law immunity).
However, the Supreme Court in 2010 decided that the Act does not extend immunity to a government official acting on behalf of a state. In the case of Samantar v. Yousuf decided in June 2010, the Supreme Court found that there is nothing to suggest that "foreign state" within the FSIA should be read to include an official acting on behalf of that state. Justice Stevens, with the unanimous support of the Supreme Court, made the decision into common law with his many paragraphs on the court case. This helped define what is considered to be a foreign state, which now included state officials acting within their jurisdiction.
Moreover, the potential of the FSIA to undermine foreign policy goals of the executive branch has been an ongoing concern.
Commercial activity exception The most important exception to sovereign immunity is the commercial activity exception, 28 U.S.C. § 1605(a)(2). This section provides three bases on which a plaintiff can sue a foreign state: