The Foreign Sovereign Immunities Act of 1976 (FSIA or Act), provides, with specified exceptions, that a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States ….” 28 U.S.C. § 1604. One of the jurisdictional exceptions — the expropriation exception — says that
“[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case … (3) in which rights in property taken in violation of international law are in issue and that property … is owned or operated by an agency or instrumentality of the foreign state … engaged in a commercial activity in the United States.” § 1605(a)(3).
The expropriation exception applies to “any case… in which rights in property taken in violation of international law are in issue and that property … is owned or operated by an agency or instrumentality of the foreign state … engaged in a commercial activity in the United States.” § 1605(a)(3).
A case falls within the scope of the expropriation exception only if the property in which the party claims to hold rights was indeed “property taken in violation of international law.” A court should decide the foreign sovereign’s immunity defense “[a]t the threshold” of the action, Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81, resolving any factual disputes as near to the outset of the case as is reasonably possible. Pp. 1318-1324.
The expropriation exception grants jurisdiction only where there is a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). Simply making a nonfrivolous argument to that effect is not sufficient. This reading is supported by the provision’s language, which applies in a “case … in which rights in property taken in violation of international law are in issue.” Such language would normally foresee a judicial decision about the jurisdictional matter. This interpretation is supported by precedent. See, e.g., Permanent Mission of India to United Nations v. City of New York, 551 U.S. 193, 201-202, 127 S.Ct. 2352, 168 L.Ed.2d 85. It is also supported by a basic objective of the FSIA, which is to follow international law principles, namely, that granting foreign sovereigns immunity from suit both recognizes the “absolute independence of every sovereign authority” and helps to “induc[e]” each nation state, as a matter of “international comity,” to “respect the independence and dignity of every other,” Berizzi Brothers Co. v. S.S. Pesaro, 271 U.S. 562, 575, 46 S.Ct. 611, 70 L.Ed. 1088.
Nothing in the FSIA’s history suggests that Congress intended a radical departure from these principles in codifying the mid-20th-century doctrine of “restrictive” sovereign immunity, which denies immunity in cases “arising out of a foreign state’s strictly commercial acts,” but applies immunity in “suits involving the foreign sovereign’s public acts,” Verlinden, supra, at 487, 103 S.Ct. 1962. It is thus not surprising that the expropriation exception on its face emphasizes conformity with international law, requiring both a commercial connection with the United States and a taking of property “in violation of international law.”