IMMUNITIES

inheritance/immovable property exception to immunity

A foreign state is not immune from actions involving rights in property in the U.S. acquired by succession or gift, or rights in immovable property situated in the U.S. Examples - foreign state that own's real property in the U.S. or a party to litigation involving a will or estate = cannot invoke immunity

expropriation exception to immunity

A foreign state is not immune from jurisdiction of U.S. Courts in an action "in which rights in property taken in violation of international law are in issue and that property or any property exchanged for that property" is either (1) present in the U.S. in connection with a commercial activity carried on in the U.S. by the foreign state"; or (2) owned or operated by an agency or instrumentality of the foreign state...engaged in a commercial activity in the U.S." SC has held that when there is no factual dispute, the FISA exception will apply only when the facts do show a taking of property in violation of international law

waiver exception to immunity

A foreign state is not immune from suit if it "has waived its immunity either explicitly or by implication" Explicit - usually by treaty or contract with private party, or statement from an authorized official after a dispute arises Implicit - typically found where a foreign state has agreed to arbitration in another country or where a foreign state has agreed that the law of a particular country should govern a contract; would also include a situation where a foreign state has filed a responsive pleading in an action without raising the defense of foreign sovereign immunity—typically limited to when foreign state def. has indicated willingness to be sued in U.S. courts ⇒ NOT typically considered a waiver - Selection of foreign law; agreement to submit to the jurisdiction of a foreign state; egregious conduct ⇒ Limitation - cannot be withdrawn except in a manner consistent with the terms of the waiver

arbitration exception to immunity

A foreign state is not immune from the jurisdiction of U.S. courts in any case where the action is brought to enforce an agreement made by the foreign state with a private party to submit to arbitration differences which may arise with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under U.S. law, or to confirm an award made pursuant to such an arbitration. (28 U.S.C § 1605(a)(6)) International Insurance Co. v. Caja Nacional de Ahorro y Seguro FACTS - a U.S. insurance company purchased reinsurance from an Argentinian insurance company pursuant to two contracts that contained an arbitration clause. Def. failed to pay indemnity obligations, so PL initiated an arbitration in the U.S. and won a default award when def. failed to appear. PL filed for confirmation of award in U.S. court. DEF then appeared and claimed immunity as an instrumentality of a foreign government THE COURT- COA rejected claim of immunity

commercial activity exception

A foreign state is not immune from the jurisdiction of U.S. courts where its: - The action is based upon a commercial activity carried on in the United States by the foreign state - An act performed in the U.S. in connection with a commercial activity of the foreign state elsewhere OR - An act outside the territory of the United States in connection with a commercial activity that causes a "direct effect" in the U.S. Saudi Arabia v. Nelson FACTS - U.S. citizen working in hospital in Saudi Arabia; he reported safety issues to superiors and was later arrested and tortured in jail. He was made to sign a statement he didn't understand and his wife was told she could get her husband's release in return for sexual favors. The couple brought suit against Saudi Arabia in federal court. THE COURT - The commercial exception to the sovereign immunity of foreign States under the FSIA only applies to "commercial activity" as defined by the FSIA and the restrictive theory of sovereign immunity, and does not apply to the exercise of a State's police power. ⇒ The claim must be based on the commercial activity, rather than merely related to it Republic of Argentina v. Welt over, inc. FACTS - Argentina defaulted on payment of bonds and foreign creditors sued in U.S. court under commercial activity exception. Argentina argued that its issuance of the bods was not a "commercial activity" because the purpose was public in nature THE COURT - the court rejected the argument and said "when a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are 'commercial'"—"the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in 'trade and traffic or commerce'"

tort exception to immunity

A foreign state is not immune from tort actions involving money damages where the damage occurred in the U.S. (including actions for personal injury, death, and loss or damage to property caused by a tortious act or omission of the foreign state or its agents) Example - an embassy driver who negligently hits another car in D.C.—victim can sue foreign gov. in federal court, using District of Columbia tort law for the cause of action Limitation - damage or loss MUST OCCUR in the U.S. (all territories and waters, continental or insular, subject to other jurisdiction of the U.S."

Involiability of diplomatic premises

Duties of host state a. Host state cannot force themselves inside the premises—no search or interfere with work in side; no police or fire dpt. b. Must protect from private interreference—duty to protect the diplomatic mission » Why? Functional necessity » NOTE - The state owns the immunity and can waive the immunity

noncommercial exception to immunity

Exception directed at tort actions for monetary damages that are not otherwise encompassed by section 1605(a)(2) relating to commercial activities Letelier v. Republic of Chile FACTS - Letelier, the former Chilean Ambassador to the United States, and two other people were riding to work in Washington, D.C. in September, 1976 when an explosive device planted under the driver's seat in their car was detonated killing two of the three people. ISSUE - whether the assets of a foreign state's wholly owned airline are subject to execution to satisfy a default judgment obtained against the foreign state THE COURT - Chile cannot claim sovereign immunity because there is no discretion to commit, or to have one's officers or agents commit an illegal act...whatever policy options may exist for a foreign country, it has no discretion to perpetrate conduct designed to result in the assassination of an individual or individuals Risk v. Halvorsen FACTS - Norway/U.S. parents custody issue: couple marries, ultimately have domestic issues leading Norwegian wife to violate California court order with assistance of Norwegian consulate (gave funds and passport) and leave USA with kids. THE COURT - The discretionary function exception applies to this case and the U.S. court has no jurisdiction to hear the claims against Norway. Court held Norwegian government was exercising discretionary function (says Letelier was decided on egregiousness of act, here it is a normal governmental function).

Definitions - 28 U.S.C. § 1603

Foreign state - includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). Agency or instrumentality of a foreign state - any entity (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332 (c) and (e) of this title, nor created under the laws of any third country. United States - includes all territory and waters, continental or insular, subject to the jurisdiction of the United States. commercial activity - means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. commercial activity carried on in the United States by a foreign state - carried on by such state and having substantial contact with the United States.

counterclaim exception to immunity

If a foreign state brings a lawsuit in a U.S. court, it is denied immunity for (a) any claim that falls within an exception to immunity; (b) any claim that arises out of the same transaction or occurrence as the sovereign's claim; and (c) any claim up to (not exceeding) the amount of the foreign state's claim

Do foreign states include foreign officials, meaning the FISA covers them?

NOTE - The FSIA does not expressly address the immunity of individual foreign officials because it covers suits against "foreign states" Entities covered by the FSIA - foreign states proper, their political subdivisions, and their agencies and instrumentalities ⇒ Test to distinguish - core functions test - which looks at whether the functions of the entity are governmental or commercial - Foreign states - Any entity whose core functions are predominantly governmental is treated as the foreign state itself - Angency/instrumentality - structure and core function of which are commercial; receives diff. treatment under the FSIA; must be a separate legal person, corporate or otherwise, and either be an organ of a foreign state or a political subdivision thereof or have a majority of its shares or other ownership interests owned by a foreign state or political subdivision SC has held that a foreign state must itself own a majority of a corps. shares if the corporation is to be deemed an instrumentality of the state under the FSIA The extent to which the actions of an agency or instrumentality attributable to the foreign state or vice versa - SC adopted a presumption that government instrumentalities that are established as separate entities should be treated as such and that the presumption could be overcome in two situations: (1) where a corp. entity is so extensively controlled by its owners that a relationship of principal and agent is created; and (2) where treating the entity as separate from the foreign state would work fraud or injustice

terrorist state exception to immunity

Permits civil suits for monetary damages against foreign states that cause personal injury or death "by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources...for such an act.... (28 U.S.C. 1605A) Requirement - claimant or victim must have been a U.S. national or employee Rubin v. Islamic Republic of Iran FACTS - To satisfy the judgment, the claimants sought to attach a collection of antiquities owned by Iran but kept at the University of Chicago. On appeal, the Seventh Circuit found the property immune to attachment. THE COURT - Property in the United States that belongs to a foreign state is immune from attachment to satisfy judgments involving acts of terrorism unless an exception explicitly listed in the Foreign Sovereign Immunities Act applies.

when a suit involves conduct that took place before the FSIA's enactment

Republic of Austria v. Altmann FACTS - PL filed suit in U.S. federal DC in Los Angeles, invoking the expropriation exception (1605)(a)(3), regarding paintings wrongfully seized by Ausrtria and displayed in a gallery. DEFs. argued that in 1948, when the expropriation occurred, they would have enjoyed absolute immunity from suit in U.S. courts and that immunity should apply to these facts rather than the later-enacted FSIA. THE COURT - SC rejected DEFs argument that they enjoyed absolute immunity based on when the conduct occurred and found that the FSIA operated retroactively. The Foreign Sovereign Immunities Act applies to all claims involving assertions of sovereign immunity occurring after its enactment in 1976, regardless of when the underlying conduct giving rise to those claims occurred.

U.S. court split over whether foreign states included foreign officials

Samantar v. Yousuf (U.S. Supreme Court) FACTS - def. was in charge of the country's military. Under def. leadership, the Somali military tortured or killed the plaintiffs or their families. After the fall of the Somali military regime, def. moved to the U.S. PLs brought suit against def. for the atrocities committed under his control in Somalia. Def. argued that he was immune from the suit under the Foreign Sovereign Immunities Act. The court of appeals held that the Act did not govern def. claim of immunity. THE COURT - The Foreign Sovereign Immunities Act applies only to foreign states and does not govern a foreign official's claim of immunity. The Act defines an agency or instrumentality of a foreign state as "any entity" that is, among other things, "a separate legal person" or "an organ of a foreign state." A foreign official does not fit within these definitions.

28 U.S. Code § 1604 - Immunity of a foreign state from jurisdiction

Subject to existing international agreements to which the United States is a party; at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

evolution of sovereign immunity

The Schooner Exchange v. M'Faddon - U.S. SC found that a French Warship in a U.S. port was immune from jurisdiction of U.S. courts, even though the PLs charged that the vessel had been illegally seized from them by France; Chief Justice concluded that no foreign sovereign would subject itself to the absolute and exclusive power of another without an implied understanding that entry into foreign territory included a grant of immunity from the territorial sovereign's power (aka absolute immunity) 1940's - U.S. and European Courts thinking about more restrictive foreign sovereign immunity » Tate Letter - U.S. department of State legal advisor informed Department of Justice that henceforth the Department of State would favor the theory of "restrictive" sovereign immunity Restrictive theory - the Department of State would recommend immunity only when a case involved the public acts of a foreign government; it would not recommend immunity when a case involved the commercial acts of a foreign government, thus acts which could have been carried on by private parties. If the department of State made no recommendation, the characterization of an act as "public" or "private" was to be determined by the courts

requirements for FISA

Under the FSIA, a foreign State is subject to the jurisdiction of U.S. courts if two conditions are met: a. First, the action must be "based upon a commercial activity," b. that activity must have a "substantial contact with the United States."

conduct immunity

What - Accorded to all foreign government officials for acts performed on behalf of the state - Protects the official, regardless of office held; operates both while person is in office and after she has left government service - Limitation - limited to acts performed on behalf of the state, it doesn't protect the person with respect to acts committed in her personal capacity

sovereign immunity

What - CIL that accords immunities to a government from suits in another government's courts; the immunity of a state from the jurisdiction of the domestic courts of another state; a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign - Restrictive sovereign immunity - the immunity of the sovereign is recognized with regard to sovereign or public acts of a state, but not with respect to private acts - State doctrine - the legal effect of certain acts of a foreign state

status immunity (head-of-state)

What - Status-based immunity accorded to senior foreign government officials while they are in office - Attaches to a foreign government official by virtue of the office that she holds, protecting her from civil or criminal actions for acts committed either on behalf of the state or in her personal capacity - Limitation - Only accorded to senior government officials

what are the three types of immunities?

sovereign status (head-of-state) conduct