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Sovereign Immunity: Definition, Act and Waivers

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  • 0:06 Sovereign Immunity
  • 2:05 Foreign Sovereign Immunity
  • 4:11 Exceptions to FSIA
  • 6:18 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

The Foreign Sovereign Immunities Act places limitations on lawsuits that involve foreign sovereign nations. This lesson explores the Foreign Sovereign Immunities Act and explains when immunity is applicable.

Sovereign Immunity

Let's say that Abby slips and falls while at her local branch of the United States Post Office. The sidewalks were icy and hadn't been shoveled or salted. Abby wants to sue the post office in order to recover her medical fees. Can Abby sue an office of the federal government? Let's take a closer look at this issue.

Our federal government has sovereign immunity. This means our government and its agencies enjoy legal protection, preventing many lawsuits. Generally speaking, a sovereign entity can't be sued without that entity's consent.

The doctrine of sovereign immunity is historically rooted in English common law. Under the ancient English principle, it was assumed that the monarch could do no wrong. Early United States law adopted this general principle, requiring congressional authorization before the federal government could be sued by a state or by a private individual.

However, over time, our federal government chipped away at its own sovereign immunity by adding numerous exceptions. It first waived sovereign immunity in cases involving contracts and eventually waived immunity for many types of torts.

Today, the general rule is that our federal government, its agencies, officers and employees have some immunity. Our government has immunity from causes of action that arise while carrying out their official government duties. Otherwise, most claims aren't precluded by sovereign immunity. Abby wasn't injured by someone carrying out an official government duty, so Abby will likely be allowed to sue the post office for negligently causing an unsafe environment.

Foreign Sovereign Immunity

Now let's say Abby is an artist. She lives in California but is hired to create and install a mural in a French government office located in Paris. After she creates the mural, the French government cancels her contract. Abby wants to sue for her lost expenses.

This case involves foreign sovereign immunity. This type of immunity means other governments enjoy legal protection, preventing many lawsuits brought here in the United States. Historically, international law principles dictated that nations are immune from the court jurisdiction of other nations. This principle is known as absolute immunity.

In the U.S., the court protections and limitations provided to foreign entities are governed by the Foreign Sovereign Immunities Act, or FSIA, enacted in 1976. This act sets specific limitations on suing a foreign sovereign nation, its agencies or its instrumentalities in U.S. courts.

The FSIA serves as the main vehicle available for bringing a lawsuit against a foreign sovereign entity in a U.S. court. Under the FSIA, the U.S. court determines the applicability of foreign sovereign immunity. When an entity is sued in the U.S., that entity must raise foreign sovereign immunity as a defense in order for immunity to be considered. The court will then determine the applicability and scope of the entity's immunity.

If the lawsuit is allowed to go forward, the FSIA outlines the specific procedures that must be followed throughout the suit. For example, the FSIA details the procedures for service of process on foreign sovereign entities, for the attachment of foreign property and for collecting a judgment.

Exceptions to FSIA

Now let's take a look at why a lawsuit like Abby's might be allowed to go forward. Foreign nations are no longer completely immune from lawsuits brought in U.S. courts. After World War II, many exceptions evolved in order to remove unfair commercial advantages provided to foreign nations through their immunity. This principle is known as restrictive immunity because courts now limit the use of foreign sovereign immunity.

The exceptions were originally codified in 1976 through the enactment of FSIA, though many revisions and amendments expanded that list. Generally, a foreign sovereign entity or its agent may be sued when:

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