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APPENDIX

SOVEREIGN IMMUNITY DECISIONS OF THE

DEPARTMENT OF STATE

May 1952 to January 1977

Edited by

Michael Sandler,* Detlev F. Vagts**
and Bruno A. Ristau***

*Member, District of Columbia Bar. Special Assistant to the Legal Adviser, Department of State, 1975–1977.

**Professor of Law, Harvard University. Counselor on International Law, Department of State, 1976-1977.

***Chief, Office of Foreign Litigation, Department of Justice.

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The following case reports trace the history of Department of State decisions concerning the immunities of foreign states, their agencies and instrumentalities, their property, and their nondiplomatic and nonconsular officials, beginning with the Tate Letter of May 19, 1932. and ending with the entry into force on January 19, 1977, of the Foreign Sovereign Immunities Act of 1976 (Public Law 94–583, 90 Stat. 2891; 28 U.S.C. 1602 et seq.).

It was in the Tate Letter of 1952 that the Department announced its adherence to the restrictive doctrine of sovereign immunity—a doctrine under which sovereign immunity is restricted to a foreign state's acts of a public nature (jure imperii), and does not extend to acts of a commercial or private nature (jure gestionis). Apart from the relatively infrequent occurrence of supervening foreign policy considerations, the Tate Letter provided the basis under which the Department made its decisions with respect to sovereign immunity from May, 1952 onward. The Tate Letter was superseded by the Foreign Sovereign Immunities Act of 1976, which is designed to conform U.S. sovereign immunity procedures to international practice by transferring to the courts the responsibility for deciding claims of immunity.

Role of the Department

The Department of State role in deciding foreign sovereign immunity claims prior to the enactment of legislation was articulated by the Supreme Court in Ex Parte Peru, 318 U.S. 578 (1943) and Merico v. Hoffman, 324 U.S. 30 (1945). Without discussing the effect of any future congressional legislation, these decisions essentially held that State Department determinations in individual cases, and, in the absence of such determinations, general State Department policy, would provide the basis for any recognition of immunity by the courts.

Following crystallization of departmental policy in the Tate Letter of 1952, the Department developed a number of procedures to be fol

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Appreciation is expressed to Karen Vagts who greatly assisted in researching references cited in these materials.

See Notice of Department of State policy with respect to the immunity of foreign states in U.S. courts, in light of the Foreign Sovereign Immunities Act of 1976. 41 Fed. Reg. 50883 (1976); Dept. of State Bulletin, Vol. LXXV, No. 1952, Nov. 22, 1976, pp. 649–650; Digest of United States Practice in International Law, 1976, at 323–325.

lowed when requested to resolve questions of immunity. To begin with, the Department generally required a formal diplomatic request, usually in the form of a diplomatic note, from the embassy of the foreign state concerned (or from a third country embassy representing the interests of the foreign state concerned), although in at least one case the Department responded to a request from a court (see Case No. 7). Generally, the foreign state had the option to litigate its immunity claim before the Department or before the court (see Nos. 50, 88, 109). During the first decade and a half of experience under the Tate Letter, the Department made its immunity decisions based on either representations of the embassy concerned, copies of pleadings filed with the court, or reports from the Department of Justice. Beginning in the late 1960's, it became the Department's practice to invite counsel for the plaintiff and for the foreign state concerned to present to the Department's Office of the Legal Adviser memoranda as well as oral presentations on the immunity questions at issue. When oral presentations were requested by either the parties or the Department, they took place as informal conferences and not as on-the-record administrative proceedings.

If the Department decided to recognize sovereign immunity in a particular case, it would send a letter to the Attorney General requesting that a suggestion of sovereign immunity be filed with the court where the action was pending. It would also advise the embassy concerned by diplomatic note or otherwise. If the Department's decision was not to recognize immunity, the Department usually advised the embassy in question of that decision by diplomatic note.

The Department generally restricted itself to deciding questions of immunity, and usually, but not always, avoided collateral issues such as whether property subject to an attachment was indeed owned by the foreign state concerned (compare No. 38 with No. 18), whether an immunity which would otherwise be recognized had been waived (compare No. 65 with No. 11), and the merits of a jurisdictional or substantive claim (see Nos. 12, 60, 61, 67). Also, the Department generally refused to decide immunity claims while jurisdictional defenses remained to be decided by the court (see Nos. 80, 84, 92).

Present Legal Significance

Since the regime under which the Department of State made immunity decisions has been superseded by the Foreign Sovereign Immunities Act of 1976, the cases summarized below may not have the effect of precedent in future court cases arising under the Act. However, apart from any contribution the following materials may

make to the body of customary international law, these cases may prove of some value in elucidating certain problems that may arise under the legislation. In comparing the cases reported here with future situa tions, the following factors should be taken into account:

"Nature" Versus "Purpose" Test. Section 1603 (d) of the Foreign Sovereign Immunities Act ("the Act") states that the "commercia. 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." 28 U.S.C. 1603 (d). This approach of examining the underlying nature of an activity rather than its avowed purpose was followed in a great many of the Department's decisions under the Tate Letter (see e.g., Nos. 21, 36, 60, 62, 77, 81, 107). However, there were instances where the Department examined the nature of a foreign government entity performing an act, instead of the nature of the act itself (see Nos. 4, 23, 41 and 69), which apparently would not be permitted under the new legislation.

U.S. Contacts. The Act (28 U.S.C. 1605) generally requires that there be certain contacts with the United States before an exception to a foreign state's immunity will be recognized. This requirement was included for jurisdictional reasons. House Rep. No. 94-1487. 94th Cong., 2d Sess. 13 (1976). A similar requirement was not usually present in the Department's decisions under the Tate Letter (see Nos. 6, 9, 36, 60, 81; cf. No. 86).

Expropriation Cases. The Act denies immunity with respect to expropriation claims which are founded in international law and which have the requisite contacts with the United States. 28 U.S.C. 1605(a) (3). In its earlier decisions under the Tate Letter, the Department took the position that an expropriation was a public act as to which immunity should be accorded (Nos. 25, 32, 40; cf. No. 33).

Immunity of Officials. The Department has made a number of decisions concerning the immunity of heads of state (Nos. 49 and 99) and of other nondiplomatic and nonconsular officials (Nos. 19, 96. 97; cf. No. 62). These decisions may be of some future significance, because the Foreign Sovereign Immunities Act does not deal with the immunity of individual officials, but only that of foreign states and their political subdivisions, agencies and instrumentalities.

Administrative Proceedings. The Act relates to foreign state immunities "in the courts of the United States and of the States," but not before administrative bodies or from administrative action. Thus, here also, Department decisions with respect to administrative proceedings (No. 10) and in the tax area (Nos. 14, 44, 48, 71) may be of some value. Arbitration. The Act and its legislative history do not expressly mention actions to compel an arbitration or to enforce an arbitral

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award. Department decisions suggest at least that actions to compel a commercial arbitration should be deemed to be claims based on a commercial activity (see Nos. 45 and 73).

Diplomatic Considerations. As a government agency charged with the day-to-day conduct of foreign relations, the Department was of course cognizant of diplomatic considerations which were raised in connection with individual sovereign immunity claims. For the most part, diplomatic influences were resisted. In those cases where diplomatic concerns appeared to have an effect (e.g., Nos. 32, 41, 69, 86), it is difficult to ascertain the precise role which those concerns played. By transferring to the courts responsibility for deciding claims of immunity, the Act should remove this factor as a hidden influence on future decisions. See House Rep. No. 94-1487, 94th Cong., 2d Sess. 7, 9 (1976).

Sources and Methods

The cases reported below cover all diplomatic requests for sovereign immunity, and Department decisions in response to those requests, that could be gleaned from a search of Department of State and Department of Justice files. While no assurance can be given that the list is

3 The materials omit the diplomatic requests in the following cases, which were not acted on by the Department either because the request was withdrawn, because it was not pursued by presenting a memorandum or additional facts in support of the request, or because the case was settled:

No. 35. Olavaria y Cia. v. Banca para el Commercio, Civil Action No. 61-3825 (Sup. Ct., San Juan, P.R. 1962) (Diplomatic request from the Czechoslovak Ambassador on behalf of the Republic of Cuba).

'No. 70. Paterno v. Norway, Civil Action No. 69-H-130 (S.D. Tex. 1969) (Diplomatic request: December 22, 1970).

No. 72. Heaney v. Government of Spain, 445 F.2d 501 (2d Cir. 1971) (invitation from the court to submit views).

No. 76. Grofer v. Government of Jamaica, Civil Action No. 38102 (E.D. Mich.) (Diplomatic request: May 16, 1972).

No. 83. Marine Transport Lines, Inc. v. The Turkish Government, 72 Civ. 3703 RJW (S.D.N.Y.) (Diplomatic request: January 22, 1975).

No. 89. Manufacturas Sumar, S.A. v. M/V William Foster, Civil Action No. 7910 (D.C.Z.) (Diplomatic request from the Soviet Embassy: October 30, 1973). No. 90. Moore v. FFV Sport, Inc., Kingdom of Sweden, et al. (Sup. Ct. .N.J., County of Orange) (Diplomatic request: November 2, 1973).

No. 91. Alora Compania Naviera S.A. v. Embassy of the Philippines (S.D.N.Y.) (Diplomatic request: November 20, 1973).

No. 98. Nalvandian, et al. v. Her Majesty The Queen in Right of the Dominion of Canada, No. 4726-27 (E.D. Mich.) (Diplomatic request: September 5, 1975). No. 105. Cross & Brown Company v. Republic of Zaire, Index No. L&T 17774/ 76 (Ct. City N.Y., County N.Y. 1976) (Diplomatic request: March 17, 1976). No. 109. Panama Canal Company v. Compania Nacional de Navegacion, Civil Action No. 76-3111 (E.D. La.) (Diplomatic request from the Embassy of Colombia: October 26, 1976).

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