Supreme Court Opinion Discusses Historical Shifts in U.S. Foreign Sovereign Immunity Doctrine

Cite as: 586 U.S. (2019) 3 Opinion of the Court and every form of judicial process as is enjoyed by foreign governments.” §288a(b). The IOIA authorizes the President to withhold, with- draw, condition, or limit the privileges and immunities it grants in light of the functions performed by any given international organization. §288. Those privileges and immunities can also be expanded or restricted by a partic- ular organization’s founding charter. B When the IOIA was enacted in 1945, courts looked to the views of the Department of State in deciding whether a given foreign government should be granted immunity from a particular suit. If the Department submitted a recommendation on immunity, courts deferred to the recommendation. If the Department did not make a rec- ommendation, courts decided for themselves whether to grant immunity, although they did so by reference to State Department policy. Samantar v. Yousuf, 560 U.S. 305, 311-812 (2010). Until 1952, the State Department adhered to the classi- cal theory of foreign sovereign immunity. According to that theory, foreign governments are entitled to “virtually absolute” immunity as a matter of international grace and comity. At the time the IOIA was enacted, therefore, the Department ordinarily requested, and courts ordinarily granted, immunity in suits against foreign governments. Ibid.; Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1988).1 In 1952, however, the State Department announced that it would adopt the newer “restrictive” theory of foreign 1The immunity was “virtually” absolute because it was subject to occasional exceptions for specific situations. In Republic of Mexico v. Hoffman, 324 U.S. 30 (1945), for example, the State Department declined to recommend, and the Court did not grant, immunity from suit with respect to a ship that Mexico owned but did not possess. HOUSE_OVERSIGHT_028545