488 U.S. 428 (1989), Supreme Court of the United States
Argentine Republic v. Amerada Hess Shipping Corp.
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statutory exception in §§ 1605–1607 applies; subject-matter jurisdiction under § 1330(a) exists only where immunity is withdrawn.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.
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.