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The Foreign Sovereign Immunities Act of 1976, 28 U.S.C.S. § 1330 et seq., provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.
An oil tanker owned by one Liberian corporation, and chartered by another Liberian corporation to transport oil from Alaska to the Virgin Islands by sailing around the southern tip of South America, was allegedly bombed without provocation or warning by military aircraft of the Argentine Republic, which was then engaged in a war with Great Britain concerning ownership of certain islands in the South Atlantic. The resultant damage forced the scuttling of the tanker. Following unsuccessful attempts to obtain relief in Argentina, the owner and charterer of the tanker filed complaints against the Argentine Republic in the United States District Court for the Southern District of New York, in which complaints they sought damages for the loss of the tanker and of the fuel it had been carrying and alleged jurisdiction under (1) the Alien Tort Statute (ATS) (28 USCS 1350), (2) general admiralty and maritime jurisdiction (28 USCS 1333), and (3) the "principle of universal jurisdiction" derived from customary international law. The Argentine Republic moved to dismiss the complaints for lack of subject-matter jurisdiction, and the District Court granted that motion, as it held that the Foreign Sovereign Immunities Act of 1976 (FSIA) (28 USCS 1330, 1332(a)(2)-(4), 1391(f), 1441(d), 1602-1611) rendered foreign states immune to jurisdiction in the courts of the United States, with certain exceptions not applicable to the present case. The United States Court of Appeals for the Second Circuit reversed and remanded for further proceedings, as it held that the District Court had jurisdiction under the ATS, because the present action was brought by alien corporations, sounded in tort, and asserted a violation of international law. Moreover, the Second Circuit held that the FSIA was not intended to eliminate the pre-existing remedies of the ATS. Upon certiorari it was argued that the FSIA denied jurisdiction.
Did the FSIA render foreign states immune to jurisdiction in the courts of the United States?
The Court on certiorari held that the FSIA was the exclusive means by which jurisdiction could be established. Generally, foreign nations were immune from suit in the United States for non-commercial, "public" acts unless one of the specific exceptions under the FSIA was present, which was not the case. According to the Court, none of the exceptions to foreign sovereign immunity that were enumerated in the FSIA apply to the instant case, including (a) the noncommercial torts exception (28 USCS 1605(a)(5)), since that exception applied only to torts committed in the United States or its territorial waters, and (b) the provision making the FSIA subject to treaties to which the United States was a party at the time of the FSIA's enactment (28 USCS 1604), since none of the treaties cited by the parties expressly conflict with the immunity provisions of the FSIA. The fact that there were "economic consequences" in the United States was not sufficient to meet any specific grant of jurisdiction expressly recognized by the FSIA.