Foreign Sovereign Immunities Act - History

History

Sovereign Immunity has long been the norm in U.S. courts. In an early case, the Supreme Court held that a private party could not sue the government of France. In that case, The Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812), the Supreme Court concluded that a plaintiff cannot sue a foreign sovereign claiming ownership to a war ship which had taken refuge in Philadelphia. Relying on common law principles, U.S. courts routinely refused to hear claims against foreign governments, even where those claims related to commercial activities. In addition, courts generally relied on suggestions of immunity filed by the U.S. State Department in actions against foreign sovereigns. In 1952, the State Department, noting the development of immunity in other nations, 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. In passing the Foreign Sovereign Immunities Act in 1976, Congress largely codified the Restrictive Theory of Immunity, but, in an effort to de-politicize sovereign immunity determinations, it vested the courts (rather than the Executive) with authority to determine whether a Foreign State is entitled to immunity. 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.