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statutory exception in §§ 1605–1607 applies; subject-matter jurisdiction under § 1330(a) exists only where immunity is withdrawn.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.
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.