Jurisdictional Immunities in the United States

Personal Jurisdiction

Under the statute, subject-matter jurisdiction together with valid service equals personal jurisdiction. As stated in § 1330(b), “[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.”  Section 1608 prescribes the exclusive means of service on both foreign states and their agencies and instrumentalities. These provisions are mandatory, but alternatives are specified in descending order of preference. Under § 1608(d), both states and their agencies and instrumentalities have sixty days from date of service to answer or respond to a complaint. In practice, however, effecting (and establishing proof of) service can be time-consuming and fraught with delays.

Foreign states and political subdivisions

Service on a foreign state or its political subdivisions must follow the requirements of § 1608(a).

Agencies and instrumentalities

By contrast, service on agencies and instrumentalities is governed by § 1608(b) and may be made:

• under any special arrangement between the parties; or
• by personal delivery to an officer or authorized agent in the United States; or
• if it cannot be made under the two points  above, then by delivery of a copy of the summons and complaint as directed by letter rogatory, or by any form of mail requiring signed receipt, or “as directed by order of the court consistent with the law of the place where service is to be made.”

Minimum contacts

In Republic of Argentina v. Weltover, the U.S. Supreme Court assumed (without deciding) that foreign states could be “persons” for purposes of due process protections. Since then, several circuits have held that foreign states are not persons within the meaning of the Fifth Amendment and are thus not entitled to due process protections with respect to the requirement for “minimum contacts” with the jurisdiction.

Executive Order 13568

Executive Order in relation with Extending Provisions of the International Organization Immunities Act (March 8, 2011):

“By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1 of the International Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288), and the Extending Immunities to the Office of the High Representative in Bosnia and Herzegovina and the International Civilian Office in Kosovo Act of 2010 (Public Law 111-177, 124 Stat. 1260), it is hereby ordered that all privileges, exemptions, and immunities provided by the International Organizations Act be extended to the Office of the High Representative in Bosnia and Herzegovina and to its officers and employees, and to the International Civilian Office in Kosovo and to its officers and employees. In the event either the Office of the High Representative in Bosnia and Herzegovina or the International Civilian Office in Kosovo is dissolved, the privileges, exemptions, and immunities of that organization under the International Organizations and Immunities Act, as well as those of its officers and employees, shall continue to subsist.

This extension is not intended to abridge in any respect privileges, exemptions, or immunities that the Office of the High Representative in Bosnia and Herzegovina or the International Civilian Office in Kosovo, or the officers and employees thereof, otherwise may have acquired or may acquire by law.”