Foreign Sovereign Immunities Act

Iraq v. Beaty (07-1090); Iraq v. Simon

Issues

Whether U.S. courts have jurisdiction over the Republic of Iraq in cases involving the alleged misdeeds, including torture and hostage taking, by Saddam Hussein's regime, or whether Iraq is immune from prosecution.

 

The Foreign Sovereign Immunities Act ("FSIA") prevents foreign governments from being sued in courts of the United States. 28 U.S.C. § 1605(a)(7) creates an exception that allows US courts to hear cases involving foreign governments that sponsor terrorism. Alleged victims of Saddam Hussein's regime sued the current Iraqi government in federal court under this exception. However, due to the Emergency Wartime Supplemental Appropriations Act of 2003 ("EWSAA"), and the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), the issue of whether U.S. courts have subject-matter jurisdiction over those claims has come into question. Iraq argues that both the EWSAA and the NDAA make § 1605(a)(7)'s exception to sovereign immunity inapplicable to them. In both cases, the United States Court of Appeals for the District of Columbia ruled that in spite of the EWSAA and the NDAA, U.S. courts maintain subject-matter jurisdiction to hear claims brought against Saddam Hussein's regime. Iraq appealed both decisions, and the Supreme Court granted certiorari. The Supreme Court's decision will determine whether victims of Saddam Hussein's government may sue the current Iraqi government in U.S. courts. The outcome of this case will impact U.S.-Iraqi relations, U.S. efforts to rebuild and support the current Iraqi government, and the ability of victims of Saddam Hussein's regime to sue the current Iraqi government.

Questions as Framed for the Court by the Parties

Iraq v. Beaty (07-1090)

Whether the Republic of Iraq possesses sovereign immunity from the jurisdiction of the courts of the United States in cases involving alleged misdeeds of the Saddam Hussein regime and predicated on the exception to immunity in former 28 U.S.C. § 1605(a)(7).

Iraq v. Simon (08-539)

Whether the Republic of Iraq possesses sovereign immunity from the jurisdiction of the courts of the United States in cases involving alleged misdeeds of the Saddam Hussein regime predicated on the now repealed state sponsor of terrorism subject matter exception to immunity of former 28 U.S.C. § 1605(a)(7).

Republic of Iraq, et al., v. Robert Simon, et al.

Robert Simon ("Simon"), a news reporter for CBS News, was one of several American citizens in Kuwait and Iraq immediately following Iraq's invasion of Kuwait in 1990. See Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 14 (D.D.C.

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Jam v. International Finance Corp

Issues

Does the International Organizations Immunities Act, which gives international organizations the “same immunity” granted to foreign governments, confer the immunity that foreign sovereigns enjoyed when the Act was passed in 1945? Or does the immunity evolve as the immunity given to foreign sovereigns evolves?

The Supreme Court will determine whether the International Organizations Immunities Act (“IOIA”) confers immunity on the commercial activities of international organizations now that foreign governments are no longer afforded that immunity under the Foreign Sovereign Immunities Act (“FSIA”). The D.C. Circuit Court of Appeals held, and the International Finance Corporation (“IFC”) now argues, that the IOIA entitles international organizations to virtually absolute immunity and does not incorporate subsequent developments in foreign immunity law that have restricted immunity for commercial acts. However, a group of fishermen and farmers who were harmed by an IFC funded power plant in India counter that the IOIA is meant to track the development of sovereign immunity law, as codified in the FSIA, which does not currently extend to commercial acts. The Court’s decision in this case will have implications for jurisdiction over international organizations, international and domestic litigation, and international commercial activity.

Questions as Framed for the Court by the Parties

Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.

The International Finance Corporation (“IFC”) is an international organization (“IO”) purposed with promoting private enterprise in its 184 member countries, mainly by investing in private projects where insufficient capital is available. Jam v. Int’l Fin. Corp., 172 F. Supp. 3d 104, 106 (D.D.C.

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OBB Personenverkehr AG v. Sachs

Issues

When is an entity an “agent” of a “foreign state” for purposes of the Foreign Sovereign Immunities Act; and, what degree of commercial activity within the United States is sufficient to trigger an exception to immunity for personal injury liability under that Act?

 

The Foreign Sovereign Immunities Act (“FSIA”) limits the ability of U.S. citizens to bring causes of action against foreign states and their agents in U.S. courts. See Brief for Petitioner, OBB Personenverkehr AG at 25. But the FSIA contains a commercial activity exception, which allows a U.S. court to hear suits involving a foreign state when the action is “based upon” the state’s commercial activity in the United States. See id. In this case, the Supreme Court will consider how to define when an entity is an agent of a foreign state, and the scope of the commercial activity exception’s “based upon” requirement. See id. at i. OBB Personenverkehr AG (“OBB”), a state-run Austrian passenger railway, argues that foreign states are “presumptively immune” from U.S. jurisdiction under the FSIA unless an exception applies. See id. at 25 (internal quotation omitted). OBB contends that injured Americans like Carol Sachs cannot satisfy “the based upon” requirement for claims arising from harm incurred on foreign soil. See id. at 28. Sachs argues that a sale of a ticket in the United States constitutes commercial activity and thus satisfies that requirement. See Brief for Respondent, Carol P. Sachs at 23–24. In the alternative, OBB argues that the FSIA clearly defines who can be an “agent” of the state, and that the Ninth Circuit erred in relying on common-law agency principles to find that a third-party’s ticket seller was an agent of OBB. See Brief for Petitioner at 43–46. Sachs counters that common-law agency principles should apply notwithstanding the language of the FSIA. See Brief for Respondent at 20–21. This case may affect the balance of international litigation and may result in a shift from the restrictive theory of sovereign immunity. See Brief of Amici Curiae Governments of the Kingdom of the Netherlands and the Swiss Confederation, in Support of Petitioner at 26, 34. This case may also result in changes to how agents of a foreign state engage in business with the United States over the Internet. See Brief of NML Capital, LTD, in Support of Respondent at 16; Brief of Amici Curiae International Rail Transport Committee, in Support of Petitioner at 14.

Questions as Framed for the Court by the Parties

  1. For purposes of determining when an entity is an “agent” of a “foreign state” under the first clause of the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), does the express definition of “agency” in the FSIA, the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba, or common law principles of agency, control?
  2. Under the first clause of the commercial activity exception of the FSIA, 28 U.S.C. § 1605(a)(2), is a tort claim for personal injuries suffered in connection with travel outside of the United States “based upon” the allegedly tortious conduct occurring outside of the United States or the preceding sale of the ticket in the United States for the travel entirely outside the United States?

In March 2007, Carol Sachs purchased a four-day Eurail pass for travel in Austria and the Czech Republic from Rail Pass Experts (“RPE”), a Massachusetts company. See Sachs v. Republic of Austria, 737 F.3d 584, 587 (9th Cir.

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Opati v. Republic of Sudan

Issues

Can the Foreign Sovereign Immunities Act apply retroactively so that plaintiffs can seek punitive damages against a foreign state for terrorist activities that were carried out prior to the enactment of the current version of the statute?

This case asks the Supreme Court to decide whether it can retroactively apply portions of the Foreign Sovereign Immunities Act (FSIA) to impose punitive damages on a foreign nation. Monicah Opati seeks to recover punitive damages from the Republic of Sudan for its role in al Qaeda’s 1998 embassy bombings. Opati contends that under Republic of Austria v. Altmann, the Act’s immunity exception for foreign states applies retroactively, thereby reaching the al Qaeda bombings even though they occurred prior to the current statute’s enactment. The Republic of Sudan counters that Altmann does not apply here; and, the FSIA’s plaint text does not allow plaintiffs such as Opati to recover punitive damages retroactively under the Act’s immunity exception for foreign states. This case’s outcome implicates the amount of deference given to political branches and could change the balance between plaintiffs suing under FSIA and defendant foreign states.

Questions as Framed for the Court by the Parties

Whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.

In August 1998, al Qaeda, a terrorist organization, launched bomb attacks outside the United States embassies in Kenya and Tanzania. Owens v. Republic of Sudan at 762. These attacks killed many U.S. citizens who were government employees and contractors. Id.

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Permanent Mission of India v. New York City

Issues

  1. Does the exception to sovereign immunity under the Foreign Sovereign Immunities Act for cases “in which . . . rights in immoveable property situated in the United States are in issue” provide jurisdiction to pass declaratory judgment on the validity of a tax lien?
  2. May U.S. courts appropriately consider international treaties in interpreting international law?

 

In April 2003, New York City brought actions against the Permanent Missions of India and Mongolia to the United Nations for unpaid property taxes. The Missions claimed that they were immune to suit under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., but the Court held that it had jurisdiction under a statutory exception for cases in which rights in real property situated in the United States are in issue. In doing so, the Court interpreted the Act using the European Convention on State Immunity and the United Nations Convention on Jurisdictional Immunities of States and Their Properties. In this case, the Supreme Court will determine the most proper construction of the real property exception to sovereign immunity under the Act. Additionally, the Court will clarify whether the lower court’s use of international law to interpret a United States federal statute was appropriate.

Questions as Framed for the Court by the Parties

1. Does the exception to sovereign immunity for cases “in which ... rights in immovable property situated in the United States are in issue,” 28 U.S.C. § 1605(a)(4), provide jurisdiction for a municipality’s lawsuit seeking to declare the validity of a tax lien on a foreign sovereign’s real property when the municipality does not claim any right to own, use, enter, control or possess the real property at issue?

2. Is it appropriate for U.S. courts to interpret U.S. statutes by relying on international treaties that have not been signed by the U.S. Government and that do not accurately reflect international practice because they have only been signed by a limited number of other nations?

The Permanent Mission of India to the United Nations (Indian Mission) is located in a 26-floor building in Manhattan, New York City. New York v. Permanent Mission of Indian to the United Nations, 446 F.3d 365, 367 (2d Cir. 2006).

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Republic of Sudan v. Harrison

Issues

Can a plaintiff suing a foreign state under the Foreign Sovereign Immunities Act properly serve that foreign state by mailing the service package to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s embassy located in the United States?

This case asks the Supreme Court to decide whether plaintiffs can serve a foreign state under the Foreign Sovereign Immunities Act (“FSIA”) by addressing the service of process package to the state’s foreign minister and sending it to the foreign state’s embassy located in the United States. The plaintiff, the Republic of Sudan (“Sudan”), maintains that, under the FSIA, plaintiffs must serve a foreign state by sending the service of process package to the foreign minister at the ministry of foreign affairs located in that foreign state’s capital. Sudan contends that Article 22 of the Vienna Convention supports this interpretation because it precludes service “via” or “through” a diplomatic mission. However, the respondents—a group of victims of an al-Qaeda attack including named party Rick Harrison (“Harrison”)—contend that, although the FSIA requires plaintiffs to address and send their service of process mail to a state’s foreign minister, it does not direct plaintiffs to send the package to a particular location. Harrison asserts that, because the FSIA’s text unambiguously allows service through an embassy, the Vienna Convention does not apply in this case. This case has large implications for foreign relations, especially as regards to terrorism. A decision for Harrison may better compensate victims of terrorist attacks and restrict state-sponsored terrorism, whereas a decision for Sudan may better protect the United States as a foreign litigant and aid the effective function of embassies.

Questions as Framed for the Court by the Parties

Whether the Second Circuit erred by holding – in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.

On October 12, 2000, the U.S.S. Cole was refueling in Aden, Yemen when it was bombed by members of al-Qaeda. Harrison v. Republic of Sudan (“Harrison II”), at 4. In 2010, the Respondents, Rick Harrison, other victims of the attack, and their families (“Harrison”) sued the Petitioner, the Republic of Sudan (“Sudan”) in the United States District Court for the District of Columbia (“D.C.

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Samantar v. Yousuf

Issues

Whether the Foreign Sovereign Immunities Act applies to government officials acting in their official capacities, and if so, whether the individual retains that immunity after he or she is no longer an official of a foreign state.

 

Numerous plaintiffs filed claims against Mohamed Ali Samantar, the former Prime Minister and Minister of Defense of Somalia, alleging that he was personally liable for a systematic use of torture and killing of civilians by Somali intelligence agencies during the 1980s. The district court found that Samantar was immune to these charges under the Foreign Sovereign Immunities Act (“FSIA”) and dismissed the case. The Fourth Circuit Court of Appeals reversed, holding that the statutory language of FSIA does not cover either current or former government officials. In determining the scope of the FSIA as it relates to individuals, the Supreme Court will have an opportunity to clarify the language of the statute and resolve ambiguities between the FSIA and other immunity statutes. The decision could have a major impact on United States international relations by altering the immunity enjoyed by U.S. officials abroad and influencing the number of international claims in U.S. courts.

Questions as Framed for the Court by the Parties

1. Whether a foreign state's immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state. ??

2. Whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state. ?

Somali government agents, including the National Security Service (“NSS”) and the military police, allegedly subjected disfavored Somali clans and government opponents to widespread, systematic use of torture, arbitrary detention, and extrajudicial killing. See Yousuf v. Samantar, 552 F.3d 371, 373–74 (4th Cir.

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Acknowledgments

We would like to thank Professor Jens Ohlin for his time and helpful insight on this case.

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