How the Foreign Sovereign Immunities Act Affects U.S. Legal Actions Against Foreign States

Understanding the Foreign Sovereign Immunities Act

This article will provide guidance on How the Foreign Sovereign Immunities Act Affects U.S. Legal Actions Against Foreign States.  The Foreign Sovereign Immunities Act (FSIA) of 1976 sets the groundwork for suing foreign sovereigns and their agencies in the United States. It outlines the procedures for filing a lawsuit, attaching property for debt recovery, and executing judgments. This law is vital because it establishes the sole basis for legal action against foreign states in the U.S., ensuring that foreign entities mostly enjoy immunity from litigation.

Historically, the U.S. has recognized sovereign immunity, a principle dating back to the 1812 Supreme Court case of The Schooner Exchange v. McFadden, which barred lawsuits against the government of France. Before FSIA, courts relied on the U.S. State Department to suggest immunity for foreign sovereigns, often leading to indiscriminate immunity grants. In response to evolving international norms, the State Department in 1952 adopted the Restrictive Theory of Sovereign Immunity, distinguishing between a foreign state’s public acts (Jure Imperii) and private acts (Jure Gestionis). FSIA aimed to shift the responsibility of determining immunity from the State Department to the judiciary, codify the restrictive theory, and standardize the legal framework for litigating against foreign states and agencies. It also enabled U.S. citizens to sue foreign governments for terrorist acts committed on U.S. soil, as the Justice Against Sponsors of Terrorism Act of 2016 further illustrates.

Key Provisions and Exceptions

FSIA stipulates that foreign states and their subdivisions, agencies, and instrumentalities are immune from lawsuit in U.S. courts unless specific exceptions apply. These exceptions often hinge on commercial activities that have a direct effect on the United States or involve explicit or implicit waiver of immunity by the state. For example, actions against foreign states can proceed if they involve property taken in violation of international law, rights in U.S. property acquired by succession or gift, or claims for personal injury or death resulting from a tortious act of the foreign state within the U.S.

A significant feature of FSIA is its support for U.S. citizens’ right to sue foreign governments for terrorist acts on U.S. soil. The law places the burden on the defendant to prove its status as a foreign state and thus its entitlement to immunity. It then shifts the burden to the plaintiff to demonstrate that one of the statute’s exceptions applies, thereby allowing the case to proceed.

Determining Foreign State Status

FSIA defines a “foreign state” to include not just the state itself but also its political subdivisions and any “agency or instrumentality” owned or controlled by the state. This distinction is crucial for determining the jurisdiction of U.S. courts and the appropriate method of service in a lawsuit.

Regarding the commercial activity exception, FSIA provides three bases for this exception, focusing on the nature of the act rather than the sovereign’s purpose. This nuanced approach requires courts to carefully examine the specifics of each case.

FSIA outlines specific procedures for serving legal documents on foreign defendants, starting with an agreement between the plaintiff and the foreign state and moving through prescribed international agreements, mail to the foreign state’s Ministry of Foreign Affairs, and finally, diplomatic channels if necessary. These steps are designed to ensure due process and respect for international diplomatic protocols.

Serving papers through diplomatic channels is a last resort and comes with its own set of requirements, including documentation proving attempts at prior methods of service. The FSIA mandates a clear process for serving legal documents, underscoring the importance of following these procedures to maintain the integrity of international legal actions.


The Foreign Sovereign Immunities Act plays a critical role in defining the limits and procedures for litigating against foreign entities in the United States. By establishing clear rules and exceptions for sovereign immunity, FSIA provides a framework for individuals and entities to pursue legal actions against foreign states under specific conditions, ensuring that such lawsuits proceed fairly and within the bounds of international law.


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