Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Constitution authorizes federal courts to hear certain cases involving foreign states, but does not expressly provide foreign states a right of access to U.S. federal courts. Nonetheless, the Supreme Court has held that “[a] foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts.” 1 The Court based that holding in part on general international law principles of comity2 and in part on the fact that “[t]he Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects, without reference to the subject-matter of the controversy.” 3

While foreign states may sue in U.S. court, the Supreme Court has repeatedly applied the doctrine of sovereign immunity to hold that a foreign state cannot be sued in federal court unless it consents to the suit.4 The doctrine of foreign sovereign immunity is not rooted in the text of the Constitution, but instead derives from “the principle of comity.” 5 Foreign sovereign immunity is not absolute. For instance, the Court has held that once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedures and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit.6 Thus, the Court has held that a foreign nation instituting a suit in federal court cannot invoke sovereign immunity as a defense to a counterclaim arising from of the same transaction.7 The Court has extended that holding to deny a defense of sovereign immunity on a counterclaim that was not related to the sovereign’s initial claim but that was limited to the amount of the sovereign’s claim, so it functioned as a setoff to the non-sovereign defendant’s liability.8

The political branches of the federal government, rather than the courts, are primarily responsible for determining when a foreign state may sue in federal court or claim sovereign immunity.9 Only a government that has been recognized by the political branches as the authorized government of the foreign state may maintain a suit on behalf of a national sovereign in the courts of the United States.10 Likewise, as the responsible agency for the conduct of foreign affairs, the State Department is generally responsible for suggesting to the courts that a sovereign be granted immunity from a particular suit.11

Footnotes

1

The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1871); see also Pfizer, Inc. v. Government of India, 434 U.S. 308 (1978).

2

Id. (explaining that to deny a sovereign the privilege of access to court “would manifest a want of comity and friendly feeling” ).

3

Id.

4

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cr.) 116 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934); Compania Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).

5

Guaranty Trust Co., 304 U.S. at 134.

6

Id.

7

Id.

8

National Bank v. Republic of China, 348 U.S. 356, 361 (1955). In addition, certain of the benefits extending to a domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. For instance, while the United States and its member states are exempt from the operation of the statute of limitations, a foreign sovereign does not. Nor is a foreign sovereign exempt from costs or from giving discovery. Guaranty Trust Co., 304 U.S. at 135, 137.

9

Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1 (2015).

10

Guaranty Trust Co., 304 U.S. at 137 (citing Jones v. United States, 137 U.S. 202, 212 (1890)); Matter of Lehigh Valley R.R., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign state a political question. See ArtIII.S2.C1.9.6 Foreign Affairs as a Political Question.

11

Ex parte Peru, 318 U.S. 578, 589 (1943) (distinguishing Compania Espanola v. The Navemar, 303 U.S. 68 (1938), which held that where the Executive Department neither recognizes nor disallows the claim of immunity, the court is free to examine that question for itself).