Foreign Sovereign Immunities Act (FSIA) (28 U.S.C. §§ 1602–1611)
Citation
28 U.S.C. §§ 1602–1611 — Foreign Sovereign Immunities Act of 1976. Codifies the restrictive theory of sovereign immunity in U.S. law and provides a comprehensive framework for suits against foreign sovereigns.
Overview and Purpose
FSIA is the exclusive basis for obtaining jurisdiction over foreign states and their instrumentalities in U.S. courts. It replaced the prior practice of case-by-case State Department immunity determinations with a judicial and statutory framework.
- Verlinden B.V. v. Central Bank of Nigeria (1983): FSIA is the sole basis for jurisdiction over foreign states; courts apply it whether or not the State Department has suggested immunity.
- Default rule: foreign states are presumptively immune from U.S. court jurisdiction; plaintiff must establish an exception.
”Foreign State” — Who Is Covered (§ 1603)
- The foreign state itself
- Political subdivisions of a foreign state
- Agencies and instrumentalities: separate legal persons (corporations) majority-owned by the foreign state
Dole Food Co. v. Patrickson (2003): agency or instrumentality status is determined at the time suit is filed, not at the time of the relevant events; only direct, not indirect, majority ownership by the foreign state qualifies.
Exceptions to Immunity (§ 1605)
§ 1605(a)(1) — Waiver
Explicit or implied waiver of immunity by the foreign state (e.g., contractual submission to U.S. jurisdiction, participation in U.S. litigation).
§ 1605(a)(2) — Commercial Activity Exception
The most frequently litigated exception. Immunity is lost when the action is based upon:
- Commercial activity carried on in the U.S. by the foreign state
- An act performed in the U.S. in connection with commercial activity elsewhere
- An act outside the U.S. in connection with commercial activity elsewhere that causes a direct effect in the United States
- Republic of Argentina v. Weltover, Inc. (1992): Argentina’s default on dollar-denominated bonds constituted commercial activity; payments due in New York created a “direct effect” in the U.S. under the third clause.
- Saudi Arabia v. Nelson (1993): a Saudi government hospital’s employment/recruitment activities and subsequent tortious conduct toward a U.S. employee were governmental (sovereign) in nature, not commercial; the commercial activity exception did not apply.
Commercial vs. Governmental Activity (§ 1603(d))
The distinction turns on the nature of the act, not its purpose:
- Issuing bonds = commercial (even if to fund public works)
- Operating a police detention system = governmental (even if abusive)
§ 1605(a)(3) — Expropriation Exception
Property taken in violation of international law is at issue, and the property (or property exchanged for it) is present in the U.S. in connection with a commercial activity.
§ 1605(a)(4) — Property Acquired by Succession, Gift, or Immovable Property
Rights in property in the U.S. acquired by succession or gift, or rights in immovable property in the U.S.
§ 1605(a)(5) — Noncommercial Tort Exception
Tort occurring in the United States caused by an act or omission of a foreign state or its employee acting within the scope of employment. Key limitations:
- Tort must occur in the U.S. (not extraterritorial)
- Discretionary function exception: no liability for acts or omissions within a discretionary function (similar to Federal Tort Claims Act exception)
- Letelier v. Republic of Chile: assassination of a foreign national in Washington, D.C. fell within the tort exception; no discretionary function defense for intentional murder
§ 1605A — State Sponsor of Terrorism Exception
Grants jurisdiction for personal injury or death caused by acts of torture, extrajudicial killing, aircraft sabotage, or hostage-taking when:
- The foreign state has been designated a state sponsor of terrorism
- The claimant or victim is a U.S. national, member of the armed forces, or government employee
Service of Process (§ 1608)
Strict procedural requirements must be followed in a specific hierarchy:
- Special arrangements in the applicable treaty or agreement
- International conventions on service (e.g., Hague Convention)
- Mail to the foreign state’s ministry of foreign affairs
- Diplomatic channel via U.S. Department of State
Strict compliance is mandatory; failure to comply is jurisdictional.
Execution on Judgments (§§ 1610–1611)
Obtaining a judgment does not guarantee collection — execution is separately regulated:
- § 1610: property of a foreign state used for commercial activity in the U.S. is subject to attachment and execution to satisfy a judgment.
- § 1611: Central bank reserves and assets held for central banking functions receive special protection and are generally immune from attachment, even post-judgment.
- Military property and diplomatic premises are separately protected.
Key Cases
| Case | Holding |
|---|---|
| Verlinden B.V. v. Central Bank of Nigeria (1983) | FSIA is exclusive basis for jurisdiction over foreign states |
| Republic of Argentina v. Weltover (1992) | Bond default = commercial activity; payment in U.S. = direct effect |
| Saudi Arabia v. Nelson (1993) | Employment/detention by government hospital = governmental, not commercial |
| Dole Food Co. v. Patrickson (2003) | Agency/instrumentality status assessed at time of filing; direct majority ownership required |