Foreign Immunity Application in the United States

Basic Rules of Application

The basic rule, stated in 28 U.S.C. § 1604, is the following: Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state is immune from suit in any civil action in any court of the United States unless, and to the extent that, one of the exceptions set forth in §§ 1605–1607 applies.10 In other words, there is a statutory presumption in favor of immunity for entities that meet the definition of “foreign state.” The specific exceptions in 28 U.S.C. §§ 1605–1607 are discussed in Part V infra. It is useful to keep in mind several other essential principles and distinctions.

Exclusivity

In Argentine Republic v. Amerada Hess Shipping Corp., the U.S. Supreme Court held that “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court.

Retroactivity

The statute applies regardless of whether the conduct that is the subject of the suit occurred before or after the FSIA was enacted.

Treaty exception

The FSIA is subject to preexisting international agreements in force when the statute was enacted, to the extent there is an express conflict between its terms and the agreement in question.

Other types of immunity

Foreign sovereign immunity differs from, but is sometimes confused with, head of state immunity as well as diplomatic and consular immunity.

Act of state

Foreign sovereign immunity is sometimes confused by litigants with the “act of state” doctrine.