Master The Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) is the exclusive basis for jurisdiction over foreign states in U.S. courts, and that no FSIA exception allowed suit against Argentina for a wartime attack on a vessel on the high seas. with this comprehensive case brief.
Argentine Republic v. Amerada Hess Shipping Corp. is a cornerstone of modern foreign sovereign immunity doctrine. Decided in 1989, the case clarified that the Foreign Sovereign Immunities Act of 1976 (FSIA) provides the exclusive framework for suing foreign states in U.S. courts. This exclusivity means that even when plaintiffs invoke other federal jurisdictional statutes—such as the Alien Tort Statute (ATS) or general admiralty jurisdiction—courts must first ask whether the FSIA confers jurisdiction by removing immunity through one of its enumerated exceptions.
The decision is especially significant because it constrains attempts to use broad federal statutes or international law norms to circumvent sovereign immunity. By holding that none of the FSIA exceptions applied to Argentina's wartime attack on a Liberian-flagged tanker in international waters during the Falklands/Malvinas conflict, the Court underscored that military acts on the high seas are quintessentially sovereign (not commercial) conduct and that the noncommercial tort exception does not reach extraterritorial harms. For students, the case provides a template for analyzing FSIA questions: start with immunity, test statutory exceptions, and only then consider other bases of jurisdiction or causes of action.
488 U.S. 428 (1989), Supreme Court of the United States
Amerada Hess Shipping Corp. and a related entity sought damages after their Liberian-flagged oil tanker, the Hercules, was attacked in 1982 by Argentine military aircraft on the high seas during the Falklands/Malvinas War. The attack, which occurred outside U.S. territory and allegedly outside declared exclusion zones, caused significant damage to the vessel and injuries to crew. Plaintiffs filed suit in the Southern District of New York against the Argentine Republic, invoking the Alien Tort Statute (ATS), general admiralty and maritime jurisdiction, and international law. Argentina moved to dismiss on sovereign immunity grounds under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–1611. The district court dismissed for lack of subject-matter jurisdiction. The Second Circuit reversed, concluding that the suit could proceed, including under the ATS and in light of international law. The Supreme Court granted certiorari to determine whether the FSIA is the exclusive source of jurisdiction over foreign states and whether any FSIA exception permitted the suit.
Does the Foreign Sovereign Immunities Act provide the exclusive basis for obtaining jurisdiction over a foreign state in U.S. courts, and if so, do any FSIA exceptions allow a suit against Argentina for allegedly unlawful military action on the high seas during wartime?
The FSIA provides the sole basis for obtaining jurisdiction over a foreign state in U.S. courts. Under 28 U.S.C. § 1604, foreign states are presumptively immune from suit unless a statutory exception in §§ 1605–1607 applies; subject-matter jurisdiction under § 1330(a) exists only where immunity is withdrawn. Other jurisdictional statutes (e.g., the ATS, 28 U.S.C. § 1350; general admiralty jurisdiction, 28 U.S.C. § 1333) do not override FSIA immunity. The "commercial activity" exception, § 1605(a)(2), applies only to claims based upon commercial acts or those connected to commercial activity; sovereign military actions are not commercial. The "noncommercial tort" exception, § 1605(a)(5), applies only to torts causing injury or damage occurring in the United States, not on the high seas, and is limited by the discretionary-function proviso. FSIA immunity is also "subject to" existing international agreements only where an agreement expressly conflicts with FSIA provisions by providing for suits against foreign states in U.S. courts.
Yes. The FSIA is the exclusive basis for jurisdiction over foreign states in U.S. courts. No FSIA exception applied to the plaintiffs' claims: Argentina's wartime attack was sovereign, not commercial, and the noncommercial tort exception is limited to torts occurring in the United States. Nor did any treaty or the ATS independently confer jurisdiction. The Supreme Court reversed the Second Circuit and directed dismissal for lack of subject-matter jurisdiction.
1) FSIA exclusivity: The Court examined the statutory text and structure of the FSIA. Section 1604 establishes a broad presumption of immunity; §§ 1605–1607 provide limited exceptions; and § 1330(a) confers jurisdiction only when an exception removes immunity. Legislative history confirmed Congress intended a comprehensive, uniform scheme displacing prior common-law immunity determinations. Therefore, the FSIA is the sole avenue for asserting jurisdiction over a foreign state; other statutes cannot circumvent its immunity rules. 2) Other statutes do not override immunity: Plaintiffs' reliance on the Alien Tort Statute and general admiralty jurisdiction failed because those provisions are jurisdictional or grant causes of action in general terms but do not abrogate sovereign immunity. Even if an ATS or admiralty claim would otherwise lie, FSIA immunity prevails unless an FSIA exception applies. The Court emphasized that subject-matter jurisdiction under § 1330(a) is contingent on a valid exception. 3) No applicable FSIA exception: The "commercial activity" exception, § 1605(a)(2), did not apply because the alleged wrongful act was a military attack—a quintessential sovereign jure imperii function, not a commercial jure gestionis act. The claim was not "based upon" any commercial conduct of Argentina. The "noncommercial tort" exception, § 1605(a)(5), did not apply because it is expressly limited to injury or damage occurring "in the United States." The high seas are not the United States, and the alleged injuries and property damage occurred outside U.S. territory. Moreover, the discretionary-function proviso would independently weigh against jurisdiction for military operational decisions, though the Court did not need to resolve that point definitively once it determined the situs requirement was not met. 4) Treaty clause and international law: The FSIA's opening clause makes immunity "subject to existing international agreements" to which the United States was a party at the time of enactment. Plaintiffs pointed to treaties and international law norms (e.g., the 1958 Geneva Convention on the High Seas) to argue for jurisdiction. The Court held that none of the cited agreements expressly created a private right to sue foreign states in U.S. courts or otherwise expressly conflicted with FSIA immunity. General statements of international law or treaty obligations do not displace FSIA's jurisdictional rules absent explicit language. Because no FSIA exception applied and no treaty displaced immunity, the courts lacked subject-matter jurisdiction. The Second Circuit's judgment was reversed and the case remanded for dismissal.
Amerada Hess cements the FSIA as the exclusive jurisdictional gateway for suits against foreign states, foreclosing efforts to use the ATS, admiralty jurisdiction, or general federal-question statutes to bypass sovereign immunity. It clarifies key FSIA boundaries: military actions are sovereign, not commercial; the noncommercial tort exception is territorially confined to the United States; and only treaties that expressly provide for suits against states in U.S. courts can displace FSIA immunity. The case is foundational for courses in civil procedure, international law, and federal courts, and it frames later ATS jurisprudence by underscoring that, whatever the scope of the ATS against individuals or corporations, foreign states remain protected unless an FSIA exception squarely applies.
No. The Supreme Court held that the FSIA is the exclusive basis for obtaining jurisdiction over a foreign state. The ATS does not abrogate sovereign immunity. A plaintiff must first identify a valid FSIA exception before any ATS claim against a foreign state can proceed—and in Amerada Hess, no exception applied.
Section 1605(a)(5) withdraws immunity only for torts causing injury or damage occurring in the United States. The attack occurred on the high seas, not within U.S. territory. The Court also noted that the discretionary-function proviso to § 1605(a)(5) would likely bar suits predicated on military operational decisions even if the situs requirement were met.
No. FSIA's commercial activity exception covers acts that private parties typically perform for profit (jure gestionis). Wartime attacks are sovereign acts (jure imperii). Amerada Hess confirms that a claim "based upon" a military strike cannot be recast as commercial activity to fit § 1605(a)(2).
Only if a treaty expressly conflicts with FSIA by providing for suits against foreign states in U.S. courts or otherwise explicitly limiting immunity. General references to international law principles or treaty obligations do not suffice. In Amerada Hess, none of the cited treaties created a private right of action or expressly displaced FSIA immunity.
First, identify a specific FSIA exception that squarely applies (e.g., a commercial activity with a U.S. nexus, expropriation tied to property in the U.S., or a terrorism exception where applicable). Second, strictly comply with FSIA service of process under § 1608 and venue provisions. Third, ensure any asserted cause of action is compatible with the FSIA exception and other defenses (e.g., act of state, political question). Without an applicable exception, the court lacks subject-matter jurisdiction.
Argentine Republic v. Amerada Hess Shipping Corp. crystallizes a disciplined approach to suits against foreign states: begin with FSIA immunity and its exceptions, not with broad jurisdictional or international law theories. By declaring FSIA exclusive and finding no applicable exception, the Court closed a path that would have allowed plaintiffs to convert international law violations into domestic litigation against sovereigns without clear congressional authorization.
For law students, the case is a roadmap for FSIA analysis and a reminder of the separation-of-powers values embedded in sovereign immunity. Absent an explicit statutory exception or a treaty that unambiguously displaces FSIA's protections, foreign states may not be haled into U.S. courts—even for serious alleged wrongs on the high seas.
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