ARGENTINE REPUBLIC, PETITIONER V. AMERADA HESS SHIPPING
CORPORATION, ET AL.

   No. 87-1372

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Respondents' suits are barred by the Foreign Sovereign
      Immunities Act, which prescribes the exclusive grounds for
      jurisdiction and rules of immunity in suits against a foreign
      state
      A. The text and structure of the FSIA establish that it
         comprehensively governs questions of immunity and
         jurisdiction in suits against foreign states and
         unambiguously bars respondents' suits
      B. The legislative history and consistent judicial
         interpretation of the FSIA strongly reinforce the plain
         meaning of its text and structure
      C. The court of appeals' rationale for circumventing
         petitioner's immunity from the jurisdiction of United
         States courts under the FSIA is without merit
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether a federal district court has jurisdiction under the Alien
Tort Statute, 28 U.S.C. 1350, over a suit brought by a foreign
corporation against a foreign state for a tort allegedly committed on
the high seas in violation of international law, where the foreign
state is immune from the jurisdiction of the courts of the United
States under the Foreign Sovereign Immunities Act of 1976 (FSIA).

                     INTEREST OF THE UNITED STATES

   This case presents an important question regarding the scope of the
Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330,
1602-1611.  The FSIA prescribes the exclusive bases for asserting
jurisdiction over a foreign state in the courts of the United States,
consistent with what the Executive Branch and Congress found to be the
prevailing and appropriate principles of international law and
practice.  The court of appeals' held in this case that the courts of
the United States are open to tort suits by aliens (but not United
States citizens) who seek damages for alleged violations of
international law by foreign governments, even where the act or
omission occurred outside the United States.  That holding is
inconsistent with the FSIA and international law, and it exposes the
United States to reciprocal action by the courts of other Nations.
For these reasons, this case implicates the foreign relations of the
United States.

                               STATEMENT

   1. Respondent United Carriers, Inc., a Liberian corporation, was
the owner of a crude oil tanker named the Hercules.  Respondent
Amerada Hess Shipping Corporation, also a Liberian corporation, had
chartered the Hercules to transport crude oil from Valdez, Alaska,
around the southern tip of South America, to an oil refinery in the
Virgin Islands.  On May 25, 1982, the Hercules began a return voyage,
without cargo, from the Virgin Islands to Valdez.  At that time, Great
Britain and Argentina were at war over the Falkland (Malvinas)
Islands.  On June 8, 1982, while the Hercules was on the high seas in
the South Atlantic, and allegedly outside the "war zones" designated
by Argentina and Great Britain, /1/ it was attacked by Argentine
military aircraft.  The decks and hull of the ship were damaged, and
an undetonated bomb lodged in her starboard side.  Respondent United
Carriers decided that it would be too dangerous to attempt to remove
the undetonated bomb, and the ship therefore was scuttled off the
coast of Brazil.  Pet. App. 3a-4a, 27a-28a.

   2. Respondents filed suit in the United States District Court for
the Southern District of New York seeking money damages from
petitioner Argentine Republic for the injuries they sustained as a
result of the attack.  /2/ Respondents alleged that petitioner's
attack on the neutral vessel violated established norms of
international law, and they invoked the jurisdiction of the district
court under the Alien Tort Statute, 28 U.S.C. 1350, which provides
that "(t)he district courts shall have original jurisdiction of any
civil action by an alien for a tort only committed in violation of the
law of nations or a treaty of the United States." Pet. App. 28a, 36a,
38a, 39a, 41a.

   The district court dismissed the complaint, holding that
respondents' suits are barred by the Foreign Sovereign Immunities Act
of 1976 (FSIA).  /3/ See Pet. App. 25a-35a.  In enacting the FSIA,
Congress rejected the rule of absolute immunity for foreign sovereigns
that had been recognized since the earliest days of the Nation (see
The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812)), and
instead codified the "restrictive" theory of sovereign immunity that
was followed by many other Nations and had been adopted by the
Executive Branch in 1952 in the so-called Tate Letter.  Under that
theory, a foreign state is immune from suit based on its sovereign or
public acts, but not its commercial or private acts.  28 U.S.C. 1602;
see Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486-489
(1983);  H.R. Rep. 94-1487, 94th Cong., 2d Sess. 8-9, 14 (1976);  S.
Rep. 94-1310, 94th Cong., 2d Sess. 9, 10 (1976).

   In the district court's view, Congress was "emphatic" in its
purpose that "the FSIA be the sole means of assessing claims of
immunity" by a foreign state (Pet. App. 29a).  The court found this
congressional purpose "apparent" from the text of the Act, which
provides that "'a foreign state shall be immune from the jurisdiction
of the courts of the United States and of the States except as
provided in sections 1605 to 1607 of this chapter'" (ibid. (quoting 28
U.S.C. 1604)), and from the legislative history (Pet. App. 29a).  The
court concluded that "(respondents') claims undeniably fall outside of
the exceptions to blanket foreign sovereign immunity provided by the
FSIA" (id. at 30a), because in order for a foreign state to be denied
immunity from a suit sounding in tort, the FSIA "requires that the
'damage to or loss of property' occur 'in the United States'" (ibid.,
quoting 28 U.S.C. 1605(a)(5));  yet in this case, respondents "can
claim no loss whatsoever occurring in the United States" (Pet. App.
30a).

   The district court also rejected respondents' contention that the
Alien Tort Statute "provides the basis for jurisdiction that the FSIA
denies" (Pet. App. 31a).  The court noted that "(n)o case law supports
the assertion that a foreign sovereign state would not have enjoyed
immunity in 1789," when the Alien Tort Statute was enacted (id. at
31a-32a).  But the court held that even if a foreign sovereign at one
time might have been sued under the Alien Tort Statute, the FSIA now
confers immunity on a foreign state unless the suit falls within one
of the exceptions to immunity specified in the FSIA itself (ibid.).

   3. a. A divided panel of the court of appeals reversed and remanded
(Pet. App. 1a-21a).  The court of appeals held that the district court
has jurisdiction under the Alien Tort Statute (id. at 7a-10a), because
the suit is brought by aliens (the respondent Liberian corporations),
it sounds in tort ("the bombing of a ship without justifiction"), and
it alleges a violation of international law ("attacking a neutral ship
in international waters, without proper cause for suspicion or
investigation") /4/ (id. at 7a-8a).  The court acknowledged
petitioner's submission that the Alien Tort Statute provides
jurisdiction only over suits against individuals, not sovereign
states, since the United States recognized absolute immunity for
foreign states when the Statute was enacted in Section 9 of the
Judiciary Act of 1789, ch. 20, 1 Stat. 77.  But the court found it
unnecessary to decide whether a court could have exercised
jurisdiction over this case in 1789.  In the court's view, the Alien
Tort Statute "is no more than a jurisdictional grant based on
international law," and "(i)n construing the Alien Tort Statute,
'courts must interpret international law not as it was in 1789, but as
it has evolved and exists among the nations of the world today'" (Pet.
App. 8a-9a, quoting Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d
Cir. 1980)).  Accordingly, the court concluded that it "must look to
modern international law to decide whether the statute provides
jurisdiction over a foreign sovereign" (Pet. App. 9a).  Citing two law
review articles, the court believed that under the "modern view,"
sovereign states should not be accorded immunity from suit for their
violations of international law (ibid.).

   The court rejected Argentina's contention that, regardless of
whether the Alien Tort Statute once might have provided a basis for
jurisdiction in a case such as this, the FSIA is now the exclusive
basis for obtaining jurisdiction over foreign sovereigns (Pet. App.
10a-13a).  The court acknowledged the force of the legislative history
stating that the FSIA "'sets forth the sole and exclusive standards to
be used in resolving questions of sovereign immunity'" (id. at 11a,
quoting H.R. Rep. 94-1487, 94th Cong., 2d Sess. 12 (1976)), the Second
Circuit's own prior conclusion that the FSIA "'insulates foreign
states from the exercise of federal jurisdiction, except under the
conditions specified in the Act'" (Pet. App. 11a, quoting O'Connell
Machinery Co. v. M.V. "Americana", 734 F.2d 115, 116 (2d Cir.), cert.
denied, 469 U.S. 1086 (1984)), and this Court's "similar views" in
Verlinden (Pet. App. 11a, citing 461 U.S. at 496-497).  But the court
chose not to follow those pronouncements here, because it believed
that "Congress was not focusing on violations of international law
when it enacted the FSIA" and therefore "did not intend to remove
existing remedies in United States courts (under the Alien Tort
Statute) for violations of international law of the kind presented
here" (Pet. App. 11a).  /5/

   b. Judge Kearse dissented (Pet. App. 18a-21a).  Judge Kearse
expressed skepticism that the Alien Tort Statute was "intended to
allow federal subject-matter jurisdiction to ebb and flow with the
vicissitudes of 'evolving standards of international law'" (id. at
19a).  But however that may be, she concluded that the majority had
improperly disregarded the "clearly restrictive provisions" of the
FSIA, which were "'intended to preempt any other State or Federal law
(excluding applicable international agreements) for according immunity
to foreign sovereigns'" (ibid. (quoting H.R. Rep. 94-1487, at 12)).

                          SUMMARY OF ARGUMENT

   A. The Foreign Sovereign Immunities Act of 1976 constitutes the
exclusive basis for asserting jurisdiction over a foreign state and
for determining whether it is immune from suit.  This purpose is
manifest in 28 U.S.C. 1602, which states that "(c)laims of foreign
states to immunity should henceforth be decided by courts of the
United States and of the States in conformity with the principles set
forth in this chapter (28 U.S.C. 1602-1611)";  in 28 U.S.C. 1604,
which mandates that "a foreign state shall be immune from the
jurisdiction of the courts of the United States and of the States
except as provided in sections 1605 to 1607 of this chapter";  and in
28 U.S.C. 1330, which confers subject matter and personal jurisdiction
on the district courts in suits against a "foreign state" only when
the state is not entitled to immunity under 28 U.S.C. 1605-1607.  None
of the exceptions to immunity in Sections 1605-1607 applies here.  The
sole exception for suits sounding in tort, 28 U.S.C. 1605(a)(5),
dispenses with immunity only for certain torts that occurred in the
United States.  Because the alleged attack by petitioner's military
forces occurred outside the United States, that exception is
inapplicable and petitioner is "immune from the jurisdiction of the
courts of the United States" (28 U.S.C. 1604), including any
jurisdiction conferred by the Alien Tort Statute, 28 U.S.C. 1350.

   B. The legislative history confirms that the FSIA "sets forth the
sole and exclusive standards to be used in resolving questions of
sovereign immunity raised by foreign states";  that "Section 1330
provides a comprehensive jurisdictional scheme in cases involving
foreign states";  and that the FSIA "is intended to preempt any other
State or Federal law (excluding applicable international agreements)
for according immunity to foreign sovereigns." H.R. Rep. 94-1487, at
12-13;  S. Rep. 94-1310, at 11-12.  This Court, in Verlinden B.V. v.
Central Bank of Nigeria, 461 U.S. 480 (1983), and the courts of
appeals also have uniformly taken the view that the FSIA is the
exclusive basis for resolving questions of jurisdiction and immunity
in suits against a foreign state.  In addition, the legislative
history of the tort exception in Section 1605(a)(5) confirms that
Congress intended to permit suits against a foreign state only for
certain torts that occur in the United States.  There is no indication
that Congress intended the exception to apply to an attack by a
foreign state's military forces on the high seas in time of war.

   C. The court of appeals' rationale for finding jurisdiction over
this suit under the Alien Tort Statute, outside the comprehensive
framework of the FSIA, is seriously flawed.  First, even if there once
was a plausible basis for a suit such as this under the Alien Tort
Statute prior to 1976 (which there was not), the text and legislative
history of the FSIA make clear that it now prescribes the exclusive
standards for exercising jurisdiction and determining claims of
immunity in suits against foreign states.  Second, the court of
appeals was mistaken in its premise that Congress was not focusing on
violations of international law when it enacted the FSIA (and that the
FSIA therefore should not be construed to preclude the hypothetical
"existing remedies" for such violations under the Alien Tort Statute):
 The FSIA contains an exception to the rule of immunity for certain
cases involving property taken "in violation of international law" (28
U.S.C. 1605(a)(3)), and Congress expressly rested the FSIA in part on
its constitutional power to define offenses against the "Law of
Nations" (U.S. Const. Art. I, Section 8, Cl. 10).  Third, to permit
this suit to proceed would substantially depart from accepted
principles of international law and thereby adversely affect the
foreign relations of the United States and expose the United States to
reciprocal action in other countries.  Fourth, there is in any event
no basis for the court of appeals' premise that the Alien Tort Statute
was intended to provide a basis for a suit against a foreign sovereign
in circumstances such as these prior to 1976, because foreign states
enjoyed absolute immunity from the time the Alien Tort Statute was
enacted in 1789 until 1952, and even after that time they would have
been immune from suit based on a military attack on the high seas.

                               ARGUMENT

   RESPONDENTS' SUITS ARE BARRED BY THE FOREIGN SOVEREIGN IMMUNITIES
ACT, WHICH PRESCRIBES THE EXCLUSIVE GROUNDS FOR JURISDICTION AND RULES
OF IMMUNITY IN SUITS AGAINST A FOREIGN STATE

   The text, legislative history and consistent judicial
interpretation of the FSIA make clear that it prescribes the exclusive
standards for asserting jurisdiction over a foreign state and for
determining when a foreign state is immune from suit in United States
courts.  The FSIA lifts a foreign state's immunity to suits sounding
in tort only if they are based on certain acts or omissions occurring
in the United States.  The court of appeals' holding that the
respondent Liberian corporations may invoke the jurisdiction of the
United States courts to sue petitioner Argentine Republic for injuries
allegedly sustained by their ship as a result of an attack by
petitioner's military forces on the high seas in time of war
constitutes a radical departure from the rules of sovereign immunity
that are prescribed by the FSIA and international law.  The proper way
for respondents to seek compensation from petitioner is by requesting
espousal of their claims by the Government of Liberia through
diplomatic channels -- the traditional avenue for resolving such
claims.

   A. THE TEXT AND STRUCTURE OF THE FSIA ESTABLISH THAT IT
COMPREHENSIVELY GOVERNS QUESTIONS OF IMMUNITY AND JURISDICTION IN
SUITS AGAINST FOREIGN STATES AND UNAMBIGUOUSLY BARS RESPONDENTS' SUITS

   "It is well settled that 'the starting point for interpreting a
statute is the statute itself.'" Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc., No. 86-473 (Dec. 1, 1987), slip op. 5
(quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980)).  That principle has particular force in this
case, because the FSIA, as a statute whose purpose is "to prescribe
and regulate a portion of the jurisdiction of the federal courts(,) *
* * must be construed both with precision and with fidelity to the
terms by which Congress has expressed its wishes." Cheng Fan Kwok v.
INS, 392 U.S. 206, 212 (1968);  see also Heckler v. Edwards, 465 U.S.
870, 877 (1984).  As we shall explain, the text and structure of the
FSIA unambiguously foreclose this suit.

   1. Section 4(a) of the FSIA added a new Chapter 97 to Title 28 of
the United States Code, 28 U.S.C. 1602-1611, which is entitled the
"Jurisdictional Immunities of Foreign States." The very fact that
Congress devoted an entire chapter of the United States Code to this
relatively narrow subject is weighty evidence that Congress did not
intend to permit the courts to fashion rules of immunity in a
common-law manner by relying on statutory provisions outside of
Chapter 97 (such as the Alien Tort Statute) that are not even
concerned with the jurisdictional immunities of foreign states.  But
Congress did not leave this preclusion to inference.  In the first
section of Chapter 97, which sets forth Congress's findings and
declaration of purpose in enacting the FSIA, Congress expressed its
determination that "(c)laims of foreign states to immunity should
henceforth be decided by courts of the United States and of the States
in conformity with the principles set forth in this chapter." 28
U.S.C. 1602.

   Consistent with this determination, Section 1604 establishes a
universal rule that all foreign states are entitled to sovereign
immunity in the United States in all circumstances, save only as
exceptions to that rule are set forth in the FSIA itself.  /6/ Section
1604 provides that "(s)ubject to existing international agreements to
which the United States (was) a party at the time of enactment of this
Act(,) a foreign state shall be immune from the jurisdiction of the
courts of the United States and of the States except as provided in
sections 1605 to 1607 of this chapter" (emphasis added).  Section 1605
in turn specifies in detail the exceptions to this general rule of
immunity, which apply to discrete categories of cases involving
waivers of immunity, commercial activities, property in the United
States, certain torts occurring in the United States, and maritime
liens;  Section 1606 prescribes the extent of a foreign state's
liability when it is not entitled to immunity;  and Section 1607
permits certain counterclaims against a foreign state.  /7/

   Sections 1604 to 1607 thus prescribe what Section 1602 presages:  a
comprehensive, self-contained statutory scheme for determining when a
foreign state is entitled to sovereign immunity.  Compare United
States v. Fausto, No. 86-595 (Jan. 25, 1988), slip op. 4-8, 14.  If
none of the exceptions in Sections 1605 to 1607 is applicable, then
the "foreign state shall be immune from the jurisdiction of the courts
of the United States and of the States" (28 U.S.C. 1604).  This
language is unequivocal.  Cf. Honig v. Doe, No. 86-728 (Jan. 20,
1988), slip op. 16.  Accordingly, if a plaintiff attempts to invoke
the jurisdiction of a federal district court under the Alien Tort
Statute (or any other jurisdictional provision) in order to sue a
foreign state, Section 1604 expressly renders the foreign state
"immune" from that "jurisdiction" unless one of the exceptions in the
FSIA itself applies.

   It is clear in this case that 28 U.S.C. 1604 renders petitioner
Argentine Republic immune from the jurisdiction of the district court,
because, as that court held (Pet. App. 30a-31a), none of the
exceptions to the general rule of immunity applies.  There is only one
exception in the FSIA that permits suits sounding in tort, and that
exception is limited to actions "in which money damages are sought
against a foreign state for personal injury or death, or damage to or
loss of property occurring in the United States and caused by the
tortious act or omission of that foreign state or of any official or
employee of that foreign state while acting within the scope of his
office or employment" (28 U.S.C. 1605(a)(5) (emphasis added)).  As the
courts construing Section 1605(a)(5) have consistently recognized, /8/
the legislative history makes clear that in order for this exception
to apply, the negligent or wrongful act or omission that caused the
injury, as well as the injury itself, must have occurred in the United
States.  See Verlinden, 461 U.S. at 488 n.11 (referring to 28 U.S.C.
1605(a)(5) as providing an exception "for certain noncommercial torts
within the United States").  /9/ In no instance could the tort
exception to immunity apply where both the act or omission and the
injury occurred outside the United States.  Section 1605(a)(5)
therefore has no application here, because the alleged attack upon and
injury to respondents' ship occurred outside the United States -- on
the high seas, in the South Atlantic.

   Moreover, the FSIA excludes from the tort exception "any claim
based upon the exercise or performance or the failure to exercise or
perform a discretionary function regardless of whether the discretion
be abused." 28 U.S.C. 1605(a)(5)(A).  This exclusion has been
described as preserving a foreign state's immunity for "acts or
omissions of a fundamentally governmental nature." Olsen v. Government
of Mexico, 729 F2d 641, 645 (9th Cir. 1984);  see also MacArthur Area
Citizens Ass'n v. Republic of Peru, 809 F.2d 918, 921-923 & n.4 (D.C.
Cir. 1987);  Joseph v. Office of Consulate General of Nigeria, 830
F.2d 1018, 1026-1027 (9th Cir. 1987).  It may be difficult in some
circumstances to locate the precise dividing line between the kinds of
torts for which a foreign state is not entitled to immunity under
Section 1605(a)(5) and the acts of a foreign state for which sovereign
immunity is preserved by Section 1605(a)(5)(A).  In this case,
however, we think it clear that an attack by the military forces of
one foreign state on a ship registered under the laws of another
foreign state that occurred on the high seas in time of war should be
regarded by a court of the United States as "discretionary" and of a
"fundamentally governmental nature" for purposes of 28 U.S.C.
1605(a)(5)(A).  See also pages 18-20, infra.

   For the foregoing reasons, petitioner is "immune from the
jurisdiction of the courts of the United States and of the States"
with regard to claims based upon the alleged attack by petitioner's
military forces on respondents' ship.  28 U.S.C. 1604.

   2. The conclusion that the FSIA is exclusive and that a plaintiff
cannot circumvent its carefully drawn limitations by bringing a suit
under another jurisdictional statute (such as the Alien Tort Statute)
also is evident from the special grant of subject matter jurisdiction
in 28 U.S.C. 1330.  That provision was added to the Judicial Code by
Section 2(a) of the FSIA and is entitled "Actions against foreign
states." Section 1330(a) provides that "(t)he district courts shall
have original jurisdiction without regard to amount in controversy of
any nonjury civil action against a foreign state * * * as to any claim
for relief in personam with respect to which the foreign state is not
entitled to immunity either under sections 1605-1607 of this title or
under any applicable international agreement" (emphasis added).
Congress's intention to address the question of jurisdiction over
suits against foreign states in a comprehensive manner is evident from
the fact that Section 1330 draws within the ambit of its concern "any"
action against a foreign state with respect to "any" claim for relief,
but only permits the district courts to exercise jurisdiction over
such actions and claims if the foreign state is not entitled to
immunity under 28 U.S.C. 1605-1607.  /10/

   Indeed, precisely because of the all-encompassing scope of the new
28 U.S.C. 1330(a) as regards cases in which a foreign state is a
defendant, Section 3 of the FSIA amended the diversity statute to
delete the references to suits to which a "foreign state" is a party
(as either a plaintiff or defendant) (see 28 U.S.C. (1970 ed.)
1332(a)(2) and (3)) and added a new paragraph (4) that preserves a
distinct head of diversity jurisdiction over suits involving a foreign
state only where it is the plaintiff (90 Stat. 2891;  see 28 U.S.C.
1332(a)(4)).  As the House Report explained, "(s)ince jurisdiction in
actions against foreign states is comprehensively treated by the new
section 1330, a similar jurisdictional basis under section 1332
becomes superfluous" (H.R. Rep. 94-1487, at 14 (emphasis added);
accord, S. Rep. 94-1310, at 13 (emphasis added)).  There is no reason
to believe that Congress intended Section 1330 to be any less
"comprehensive()" in cases involving an alleged violation of the law
of nations, or that the Alien Tort Statute would be any less
"superfluous" than the diversity statute in those circumstances.
Moreover, as a result of the deletion of the references to a "foreign
state" in 28 U.S.C. (1970 ed.) 1332(a)(2) and (3), it is clear that a
federal court would not have diversity jurisdiction over a suit by a
United States citizen against a foreign state based on the attack
alleged in this case.  It is implausible to suppose that Congress
nevertheless intended to permit an alien to bring such a suit under 28
U.S.C. 1350, despite the more attenuated nexus of the suit to the
United States.

   Sections 1330(a) and 1604 therefore are complementary:  Section
1330(a) confers jurisdiction on the district courts whenever the
foreign state is not entitled to immunity, and Section 1604 bars the
district courts from exercising jurisdiction wherever the foreign
state is entitled to immunity.  In this manner, the two provisions
occupy the entire fields of foreign sovereign immunity and subject
matter jurisdiction over suits against foreign states.  /11/ There is
no room in this framework for a court to fashion its own standards of
foreign sovereign immunity that depart from those in the FSIA or to
exercise subject matter jurisdiction in a suit against a foreign state
where jurisdiction does not lie under 28 U.S.C. 1330(a).  Accordingly,
"'(t)he plain meaning of the statute decides the issue presented'"
(FERC v. Martin Exploration Management Co., No. 87-363 (May 31, 1988),
slip op. 3 (quoting Bethesda Hospital Ass'n v. Bowen, No. 86-1764
(Apr. 4, 1988), slip op. 4)) and requires dismissal of respondents'
suits.

   B. THE LEGISLATIVE HISTORY AND CONSISTENT JUDICIAL INTERPRETATION
OF THE FSIA STRONGLY REINFORCE THE PLAIN MEANING OF ITS TEXT AND
STRUCTURE

   1. a. The legislative history of the FSIA overwhelmingly supports
the bar to suit that is mandated by the text and structure of the Act.
 The House and Senate Reports both stress that the FSIA "sets forth
the sole and exclusive standards to be used in resolving questions of
sovereign immunity raised by foreign states before Federal and State
courts in the United States" (H.R. Rep. 94-1487, at 12 (emphasis
added);  S. Rep. 94-1310, at 11 (emphasis added)).  Both Reports also
stress that "Section 1330 provides a comprehensive jurisdictional
scheme in cases involving foreign states," which is essential because
disparate treatment "may have adverse foreign relations consequences"
(H.R. Rep. 94-1487, at 12-13;  S. Rep. 94-1310, at 12).  /12/

   Consistent with this "exclusive" and "comprehensive" scope Congress
intended for the FSIA, the Reports make clear that the FSIA "is
intended to preempt any other State or Federal law (excluding
applicable international agreements) for according immmunity to
foreign sovereigns, their political subdivisions, their agencies, and
their instrumentalities" (H.R. Rep. 94-1487, at 12 (emphasis added);
S. Rep. 94-1310, at 11 (emphasis added)).  Thus, even if we assume
that the reference to the "law of nations" in the Alien Tort Statute
might once have been a source of authority for a court to draw on its
own assessment of international law in order to determine whether a
foreign state should be accorded immunity to a suit under that
Statute, the legislative history confirms that Congress "intended (the
FSIA) to preempt" that "Federal law" insofar as determinations of
immunity are concerned.  See pages 23-24 infra.  This preemptive
intent is also reflected in statements that the purpose of the FSIA
was to "codify" what Congress deemed to be the proper principles of
foreign sovereign immunity (H.R. Rep. 94-1487, at 7;  S. Rep. 94-1310,
at 7;  1973 Hearing 32-33, 39), with the understanding that Congress
itself would carve out any additional exceptions that might be
indicated by future developments in international law and the practice
of other nations (id. at 32).  Similar points were stressed throughout
the legislative history.  /13/

   b. Moreover, the legislative history shows that when Congress
enacted the FSIA, it specifically addressed the question of what torts
should subject a foreign state to the jurisdiction of the United
States courts and chose not to exempt from immunity those acts or
omissions that occur outside the United States.  See pages 11-12,
supra.  In addition, the legislative history confirms Congress's
understanding that the FSIA was intended to codify the restrictive
theory of sovereign immunity, under which "the immunity of a foreign
state is 'restricted' to suits involving a foreign state's public acts
(jure imperii) and does not extend to suits based on its commercial or
private acts (jure gestionis)" (H.R. Rep. 94-1487, at 7;  S. Rep.
94-1310, at 9;  see also 122 Cong. Rec. 33532 (1976) (remarks of Rep.
Danielson)).  In other words, the rule of immunity was intended to
apply, in general terms, "to cases involving acts of a foreign state
which are sovereign or governmental in nature, as opposed to acts
which are either commercial in nature or those which private persons
normally perform" (H.R. Rep. 94-1487, at 14;  S. Rep. 94-1310, at 14)
and therefore "are governed by private law" (1976 Hearings 30).  /14/
Although there may be some question as to how the "public
act"/"private act" distinction identified in the legislative history
applies in the specific context of tort claims, it is consistent with
the general thrust of that distinction that Congress's principal
purpose in fashioning the tort exception in 28 U.S.C. 1605(a)(5) was
to lift a foreign sovereign's immunity with respect to injuries caused
by traffic accidents and similar acts in the United States (H.R. Rep.
94-1487, at 9, 20-21;  S. Rep. 94-1310, at 10, 20-21;  1976 Hearings
27, 58;  1973 Hearing 42).  Such conduct is the sort in which private
persons engage and for which they may be sued under domestic tort law.

   By contrast, there is no suggestion whatever in the legislative
history that the tort exception in 28 U.S.C. 1605(a)(5) was intended
to subject a foreign state to the jurisdiction of United States courts
for injuries allegedly sustained as a result of an armed attack by its
military forces outside the United States in time of war.  /15/ That
is not conduct "which private persons normally perform" (H.R. Rep.
94-1487, at 14;  S. Rep. 94-1310, at 14) or that is addressed by the
domestic tort law of the United States governing private conduct;  it
is, rather, governed by customary international law and conventions
that specifically address the actions of sovereign states in times of
war.  See notes 4, supra, and 27, infra.  See also 28 U.S.C. 1606
("the foreign state shall be liable in the same manner and to the same
extent as a private individual under like circumstances");  Feres v.
United States, 340 U.S. 135, 141-142 (1950);  United States v.
Johnson, No. 85-2039 (May 18, 1987), slip op. 9-10.

   Moreover, when the FSIA was passed, acts of a nation's armed forces
were regarded as classic examples of what were termed sovereign or
"public acts," for which one nation was entitled to immunity in the
courts of another nation, as the Second Circuit itself previously
recognized in Victory Transport, Inc. v. Comisaria General de
Abastecimientos y Transportes, 336 F.2d 354, 360 (1964), cert. denied,
381 U.S. 934 (1965).  In fact, during the 1976 Hearings, a
representative of the maritime bar observed that "acts concerning the
Armed Forces" would not fall within the exceptions to the general rule
of immunity under the FSIA (1976 Hearings 95, citing Victory
Transport).  /16/ It therefore is especially implausible to suppose
that Congress intended the tort exception in 28 U.S.C. 1605(a)(5) to
abrogate a foreign state's immunity from the jurisdiction of United
States courts in a suit seeking damages for a military attack on a
ship on the high seas in time of war.  /17/ The court of appeals'
holding that respondents nevertheless may prosecute such suits under
the Alien Tort Statute therefore is utterly incompatible with the
balance Congress struck in the FSIA.  /18/

   2. Consistent with the text and legislative history of the FSIA,
this Court made clear in Verlinden that the FSIA "contains a
comprehensive set of legal standards governing claims of immunity in
every civil action against a foreign state or its political
subdivisions, agencies, or instrumentalities" (461 U.S. at 488), and
that "if a court determines that none of the exceptions to sovereign
immunity applies, the plaintiff will be barred from raising his claim
in any court in the United States" (id. at 497).  The Court explained
(id. at 493-494 (emphasis added;  footnote omitted)):

         The (FSIA) must be applied by the district courts in every
      action against a foreign sovereign, since subject-matter
      jurisdiction in any such action depends on the existence of one
      of the specified exceptions to foreign sovereign immunity, 28
      U.S.C. Section 1330(a).  At the threshold of every action in a
      district court against a foreign state, therefore, the court
      must satisfy itself that one of the exceptions applies -- and in
      doing so it must apply the detailed federal law standards set
      forth in the Act.

   This understanding of the statutory scheme pervades the opinion in
Verlinden.  /19/ See also First Nat'l City Bank v. Banco Para el
Comercio Exterior de Cuba, 462 U.S. 611, 622 n.11 (1983).  The court
of appeals' conclusion that respondents may sue petitioner under the
Alien Tort Statute without regard to rules of immunity and limitations
on subject matter jurisdiction in the FSIA therefore cannot be
reconciled with Verlinden.

   The other courts of appeals likewise have taken the position that
the FSIA contains the exclusive standards for resolving claims of
sovereign immunity by foreign states.  /20/ In fact, as the panel
below acknowledged (Pet. App. 11a), the Second Circuit had adhered to
that view prior to its decision in this case.  See, e.g., O'Connell
Machinery Co. v. M.V. "Americana", 734 F.2d at 116.  Similarly, other
courts of appeals have held that the jurisdictional provisions in 28
U.S.C. 1330(a) are exclusive and cannot be circumvented by resort to
other jurisdictional provisions, such as the federal-question and
diversity statutes, 28 U.S.C. 1331 and 1332.  /21/ In particular, the
District of Columbia Circuit held in Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (1984), cert. denied, 470 U.S. 1003 (1985), that the FSIA
barred the district court from exercising jurisdiction over a tort
suit against a foreign sovereign based on conduct that occurred
outside the United States, even though the plaintiffs invoked the
district court's jurisdiction under the Alien Tort Statute.  See 726
F.2d at 776 n.1 (Edwards, J., concurring);  id. at 805 n.13 (Bork, J.,
concurring).  See also In re Korean Air Lines Disaster of Sept. 1,
1983, No. 83-0345 (D.D.C. Aug. 2, 1985), slip op. 10-11;  Siderman v.
Republic of Argentina, No. CV 82-1772-RMT (C.D. Cal. Mar. 7, 1985).

   C. THE COURT OF APPEALS' RATIONALE FOR CIRCUMVENING PETITIONER'S
IMMUNITY FROM THE JURISDICTION OF UNITED STATES COURTS UNDER THE FSIA
IS WITHOUT MERIT

   The court of appeals acknowledged that the legislative history of
the FSIA, this Court's decision in Verlinden, and its own prior
decision in O'Connell all support the view that the FSIA is "the sole
basis for United States jurisdiction over foreign sovereigns" (Pet.
App. 11a).  The court concluded, however, that because the FSIA
provides exceptions to sovereign immunity primarily for commercial
disputes, "Congress was not focusing on violations of international
law when it enacted the FSIA" (ibid.) and that the FSIA therefore
should not be construed to bar what the court viewed as "existing
remedies" under the Alien Tort Statute based on alleged violations of
international law (ibid.).  Indeed, the court believed that to
construe the FSIA to bar such suits would conflict with international
law (id. at 10a).  This reasoning is wrong in every respect.

   1. It is irrelevant for present purposes whether an alien might
have been permitted to bring an action against a foreign state under
the Alien Tort Statute prior to 1976, based on the actions of its
military forces outside the United States in time of war.  For even if
there once was a plausible basis for such a suit -- which there was
not (see pages 25-27, infra) -- the text and legislative history of
the FSIA make clear that ever since 1976, the FSIA has been the
exclusive basis for exercising jurisdiction over (and for determining
the immunity of) foreign states.  See 28 U.S.C. 1602 (emphasis added)
("Claims of foreign states to immunity should henceforth be decided by
courts of the United States and of the States in conformity with the
principles of this chapter.").  Compare Block v. North Dakota, 461
U.S. 273, 284-285 (1983);  United States v. Mottaz, 476 U.S. 834,
846-847 (1986).

   2. The court of appeals sought to avoid this jurisdictional
preclusion by resorting to the premise that Congress, in enacting the
FSIA, did not focus on acts by a foreign state that violate
international law, and that the FSIA therefore should be construed to
permit suits seeking redress for such acts under other jurisdictional
regimes (Pet. App. 11a).  Even if the court of appeals' view of
Congress's focus were correct, the lack of specific discussion of one
subpart of a subject in the legislative history is no basis for
excluding that subpart from the coverage of a statute that is both
written and described in its legislative history in all-embracing
terms.  Jefferson County Pharmaceutical Ass'n v. Abbott Laboratories,
460 U.S. 150, 159 n.18 (1983);  GTE Sylvania, 447 U.S. at 110-111.
But in fact, the court of appeals was wrong in believing that Congress
did not have violations of international law in mind when it enacted
the FSIA.  The FSIA contains an express exception to the rule of
foreign sovereign immunity where the suit involves rights in property
that were taken "in violation of international law" (28 U.S.C.
1605(a)(3)).  This provision for certain suits based on violations of
international law indicates that other such suits that are not
expressly permitted are barred.  United States v. Erika, Inc., 456
U.S. 201, 208 (1982).

   Moreover, the Alien Tort Statute, which respondents invoke, vests
the district courts with jurisdiction over actions brought by an alien
for a tort committed in violation of the "law of nations" or a treaty
of the United States.  As this Court observed in Verlinden (461 U.S.
at 493 n.19), however, when Congress enacted the FSIA, it relied in
part on its power under the Constitution to define offenses against
the "Law of Nations" (Art. I, Section 8, Cl. 10).  See H.R. Rep.
94-1487, at 12;  S. Rep. 94-1310, at 12.  The comprehensive statutory
scheme under the FSIA therefore applies in full force to all suits
brought against a foreign state alleging a violation of the "law of
nations" and necessarily forecloses the fashioning of different
jurisdictional and immunity rules in a suit for a violation of the
"law of nations" under 28 U.S.C. 1350.

   3. The court of appeals also was wrong in believing that the FSIA
must be construed to permit this suit under the Alien Tort Statute in
order to avoid placing the United States out of step with prevailing
principles of international law.  The limitation of the tort exception
in 28 U.S.C. 1605(a)(5) to suits based on acts or omissions occurring
within the territorial jurisdiction of the United States was
consistent with international law and practice when it was enacted
(see note 9, supra), and it remains so today.  See U.N. Gen. Assembly,
Report of the International Law Commission on the Work of its
Thirty-Sixth Working Session 155-158 (1984);  U.N. Leg. Series,
Materials on Jurisdictional Immunities of States and Their Property 8,
30, 37, 43, 159 (1982);  McKeel v. Islamic Republic of Iran, 722 F.2d
at 588.  That limitation is designed to minimize unnecessary friction
between nations by permitting a foreign state to be sued in the forum
state only in those circumstances in which it would be liable under
the lex loci delicti commissi, and thereby confining the application
of the forum state's substantive rules of conduct to matters occurring
within its territorial jurisdiction.  /22/ Thus, it is the decision of
the court of appeals, not the statutory standards of immunity under
the FSIA, that is out of step with principles of international law.
/23/

   4. In any event, the court of appeals was seriously mistaken in its
basic premise that the Alien Tort Statute furnished "existing
remedies" against a foreign state in 1976 for conduct such as that at
issue here, and that Congress therefore must have meant to preserve
those remedies when it enacted the FSIA.  The court of appeals pointed
to no evidence that the Alien Tort Statute was intended to abrogate
the sovereign immunity of a foreign state.  /24/ As the district court
pointed out (Pet. App. 32a), that Statute makes no mention of a
foreign state as a possible defendant.  Moreover, the First Congress,
which enacted the Alien Tort Statute in 1789, clearly would not have
contemplated that a foreign state would be subject to suit under that
Statute, because the prevailing view of international law at the time,
as reflected in this Court's decision in The Schooner Exchange, was
that a foreign state was absolutely immune from the jurisdiction of
the courts of another state.

   Indeed, until 1952, the United States continued to take the
position that a foreign state was entitled to immunity from all suits
in the courts of another state without its consent.  Verlinden, 461
U.S. at 486-487.  Even after 1952, when the United States adopted the
view that a foreign state could be sued for acts of a commercial or
private nature, the Executive Branch continued to take the position
that a foreign state was, under all circumstances, entitled to
immunity for its sovereign or public acts (id. at 487) -- which, as
noted above, unquestionably included the use of armed force on the
high seas in time of war.  See pages 19-20, supra.  In light of this
practice, it is not surprising that the court of appeals did not cite
a single case decided prior to the enactment of the FSIA in which a
court of the United States exercised jurisdiction under the Alien Tort
Statute (or any other jurisdictional provision) over a suit against a
foreign state based on the commission of a public or sovereign act
that allegedly violated international law.  Nor are we aware of any
such case.  /25/ See Kirgis, Alien Tort Claims, Sovereign Immunity and
International Law, 82 Am. J. Int'l L. 323, 325 n.7, 326 (1988);  I
Congreso del Partido, (1981) 2 All E.R. 1064, 1078.  There accordingly
is no basis for attributing to Congress a supposed intention to
preserve such "existing remedies" under the Alien Tort Statute when it
enacted the FSIA.  Compare Merrill Lynch, Pierce, Fenner & Smith, Inc.
v. Curran, 456 U.S. 353, 378-382 (1982).  /26/

   5. The decision of the court of appeals could have a substantial
adverse impact on the foreign relations of the United States.  The
United States does not condone violations of international law, and
the United States takes the position that petitioner Argentine
Republic should take responsibility for any such violations that it
committed in its territory or on the high seas during the war with
Great Britain.  But sensitive foreign policy concerns are implicated
by the court of appeals' holding that the courts of the United States
may assume responsibility for determining whether such a violation
occurred and for awarding damages against petitioner if they find a
violation.  /27/

   The decision below not only has the extraordinary effect of
requiring petitioner to answer to the courts of a neutral third party
regarding its conduct during a time of war.  It also threatens to turn
the courts of the United States into tribunals in which aliens
generally (but not United States citizens) may seek redress against
foreign governments for conduct that has no substantial nexus to the
United States.  As this Court observed in Verlinden, "Congress was
aware of the concern that 'our courts (might be) turned into small
"international courts of claims(,)" . . . open . . . to all comers to
litigate any dispute which any private party may have with a foreign
state anywhere in the world.'" 461 U.S. at 490, quoting 1976 Hearings
31.  And as this Court further observed, "Congress protected against
that danger * * * by enacting substantive provisions requiring some
form of substantial contact with the United States.  See 28 U.S.C.
1605" (461 U.S. at 490).  The court of appeals failed to respect those
substantive limitations here.  In addition, because the decision below
creates jurisdiction where none was intended by Congress when it
enacted the FSIA, it may cause foreign states to take reciprocal
measures by opening their courts to suits against the United States
alleging violations of "international law" occurring anywhere in the
world.  Compare Boos v. Barry, slip op. 10-11.  /28/ These
consequences will be avoided if the Court interprets the FSIA in the
manner required by its text and legislative history.

                              CONCLUSION

   The conclusion of the court of appeals should be reversed and the
case should be remanded to the court of appeals with instructions to
affirm the judgment of the district court dismissing respondents'
suits for lack of subject matter and personal jurisdiction.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   LOUIS R. COHEN

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   ABRAHAM D. SOFAER

      Legal Adviser

   EUGENE PINKELMANN

      Attorney Department of State

   JUNE 1988

   /1/ Our recitation of the district court's reference to "war zones"
should not be understood as an endorsement of the view that a Nation
has the unfettered right under international law to designate any area
of the high seas as such a zone, into which a neutral ship enters only
at its own risk.  See R. Tucker, The Law of War and Neutrality at Sea
156 n.16, 301-303 (Naval War College 1955);  International Military
Tribunal, Nuremberg, In Trial of Admiral Doenitz, reprinted in W.
Bishop, International Law, Cases and Materials 810-812 (1962).

   /2/ Respondent United Carriers sought $10 million in damages for
the loss of the ship, and respondent Amerada Hess sought $1.9 million
in damages for the loss of fuel that went down with the ship (Pet.
App. 4a).

   /3/ Pub. L. No. 94-583, 90 Stat. 2891, codified at 28 U.S.C. 1330,
1391(f), 1441(d) and 1602-1611.

   /4/ In finding that the alleged attack violated international law
(see Pet. App. 5a-7a), the court of appeals relied, inter alia, on the
Geneva Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, and
the 1982 United Nations Convention on the Law of the Sea (Pet. App.
6a).  Although the 1958 Convention codifies such long-recognized
customary principles as the freedom of navigation on the high seas, it
is oriented toward peacetime.  So, too, is the 1982 Convention, which
the United States has not signed and is not yet in force, but which
the United States considers reflective of customary international law
in its navigational provisions.  While peacetime concerns and
principles do not become wholly irrelevant in time of war, neither the
1958 nor the 1982 Convention was negotiated with a view toward
wartime, and they do not in fact address the separate, specialized
body of rules on the use of force at sea in time of war.  (We have
been informed by the Department of State that any contrary inference
regarding the content of the 1958 Convention that might be drawn from
the United States' brief as amicus curiae in the court of appeals (at
10 n.5) is due to the inadvertent omission of the word "respectively"
at the end of the first line of that note.) Sources of international
law that are more relevant to the use of military force in time of war
are addressed at note 27, infra.  For examples of the distinction
between the bodies of international law of the sea that govern
peacetime and those that govern wartime, see C. Colombos, The
International Law of the Sea (6th rev. ed. 1967), which is divided
into Part I (The International Law of the Sea in Time of Peace) and
Part II (The International Law of the Sea in Time of War);  and Naval
Warfare Publication 9, The Commander's Handbook on the Law of Naval
Operations (1987), which is similarly divided into Part I (Law of
Peacetime Naval Operations) and Part II (Law of Naval Warfare).

   /5/ The court also held that the actions of Argentina alleged by
respondents were "sufficiently related" to the United States to fall
within constitutional limitations on the exercise of personal
jurisdiction over a foreign defendant (Pet. App. 14a-15a).

   /6/ The term "foreign state" is defined (except as used in Section
1608) to include a political subdivision and an agency or
instrumentality of the state (28 U.S.C. 1603(a) and (b)).

   /7/ Section 1604 provides that the general rule of immunity it
prescribes is "(s)ubject to existing international agreements to which
the United States (was) a party at the time of enactment of (the FSIA)
* * * ." This exception has no relevance here.  It applies only if the
international agreement addresses amenability to suit and directly
conflicts with the immunity provisions of the FSIA (H.R. Rep. 94-1487,
at 10, 17-18;  S. Rep. 94-1310, at 6, 17).  Respondents cite (Br. in
Opp. 2-3) Articles 5 and 7 of the Geneva Convention on the High Seas,
Apr. 29, 1958 (see note 4, supra) and Articles I and IV of the
Pan-American Convention Relating to Maritime Neutrality, Feb. 20,
1928, 47 Stat. 1990, 1991.  However, those Conventions merely
establish certain substantive rules of conduct and state that
compensation shall be paid for certain wrongs.  They do not purport to
create a private right of action to recover compensation, and thus are
not self-executing in this respect (cf. Foster v. Neilson, 27 U.S. (2
Pet.) 253, 314 (1829);  Head Money Cases, 112 U.S. 580, 598-599
(1884)), and they do not address the question of one sovereign state's
immunity to the jurisdiction of the courts of another sovereign state.
 Moreover, although the United States is a party to both conventions,
Argentina is merely a signatory.  Section 1604 was not intended to
dispense with the immunity of a foreign state based on an "agreement"
to which it is not a party.  Respondents also err in relying (Br. in
Opp. 3-4) on Article I of the Treaty of Friendship, Commerce and
Navigation, Aug. 8, 1938, United States-Liberia, 54 Stat. 1740, which,
inter alia, provides that the nationals of each party" shall enjoy
freedom of access to the courts of justice of the other on conforming
to the local laws * * * ." There is no violation of that treaty by the
United States here, because the FSIA is one of the "local laws" to
which respondents must conform in bringing suit.

   /8/ See Gulf Arab Media-Arab American Film Co. v. Faisal
Foundation, 811 F.2d 1260, 1261, amended, 832 F.2d 132 (9th Cir.
1987);  Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370,
379 (7th Cir. 1985);  Asociacion de Reclamantes v. United Mexican
States, 735 F.2d 1517, 1524-1525 (D.C. Cir. 1984), cert. denied, 470
U.S. 1051 (1985);  Persinger v. Islamic Republic of Iran, 729 F.2d
835, 842-843 (D.C. Cir.), cert. denied, 469 U.S. 881 (1984);  cf.
Olsen v. Government of Mexico, 729 F.2d 641, 645-646 (9th Cir.), cert.
denied, 469 U.S. 917 (1984);  McKeel v. Islamic Republic of Iran, 722
F.2d 582, 588-590 & n.10 (9th Cir. 1983), cert. denied, 469 U.S. 880
(1984).

   /9/ The committee reports state that the tort exception applies
only if the act or omission of the foreign state or its officer or
employee "occur(red) within the jurisdiction of the United States"
(H.R. Rep. 94-1487, at 21;  S. Rep. 94-1310, at 20).  That also was
the contemporaneous view of the responsible Executive Branch
officials, who were instrumental in drafting the FSIA.  See Immunities
of Foreign States:  Hearing on H.R. 3493 Before the Subcomm. on Claims
and Governmental Relations of the House Comm. on the Judiciary, 93d
Cong., 1st Sess. 34 (1973) (hereinafter 1973 Hearing) (letter from the
Attorney General and the Secretary of State) (the exception permits
suits for injuries "occasioned by the tortious act in the United
States of a foreign state");  id. at 42 (the exception applies if the
"negligent or wrongful act * * * took place in the United States");
id. at 21 (statement of acting Legal Adviser Brower) (same);
Jurisdiction of U.S. Courts in Suits Against Foreign States:  Hearings
on H.R. 11315 Before the Subcomm. on Administrative Law and
Governmental Relations of the House Comm. on the Judiciary, 94th
Cong., 2d Sess. 27 (1976) (hereinafter 1976 Hearings) (remarks of
Legal Adviser Leigh) (exception for "torts that occur in the United
States").

   This interpretation is also consistent with the parallel exception
in the European Convention on State Immunity, which entered into force
on June 11, 1976, while Congress was considering the FSIA, and which
was regarded as generally consistent with the FSIA.  See 1976 Hearings
37.  Article 11 of that Convention provides that a contracting state
shall not be immune to actions seeking redress for injury to the
person or damage to tangible property "if the facts which occasioned
the injury or damage occurred in the territory of the State of the
forum" (U.N. Leg. Series, Materials on Jurisdictional Immunities of
States and Their Property 159 (1982)).

   /10/ Although the FSIA contemplates that a suit may be brought
against a foreign sovereign in state court, the FSIA guarantees the
defendant the right to remove the suit to federal court (28 U.S.C.
1441(d);  see Verlinden, 461 U.S. at 489).

   /11/ Subsection (b) of 28 U.S.C. 1330 provides that "(p)ersonal
jurisdiction over a foreign state shall exist as to every claim for
relief over which the district courts have (subject matter)
jurisdiction under subsection (a) where service has been made under
(28 U.S.C. 1608)." Thus, personal jurisdiction, like subject matter
jurisdiction, exists only if one of the exceptions to foreign
sovereign immunity in Sections 1605-1607 is applicable (Verlinden, 461
U.S. at 485, 489 & n.14).  Enforcement of these statutory limitations
would render it unnecessary to address petitioiner's other objections
(Br. 34-48) to the exercise of personal jurisdiction in this case.
See H.R. Rep. 94-1487, at 13.  This meticulous attention to questions
of personal jurisdiction and service of process, as well as venue (28
U.S.C. 1391(f)), removal (28 U.S.C. 1441(d)), and attachment and
execution (28 U.S.C. 1609-1611), underscores Congress's intention to
enact a comprehensive statutory scheme.

   /12/ The contemporaneous interpretation and implementation of the
FSIA by the Department of State also reflects the view that its
provisions are exclusive.  As required by the section of the FSIA
governing service of process, 28 U.S.C. 1608(a), the Department of
State promulgated regulations in 1977 (42 Fed. Reg. 6367), which are
still in effect (22 C.F.R. Pt. 93), to define the content of the
notice of suit that the plaintiff must serve on the foreign state
under the Act.  Paragraph nine of the required notice states:

         Questions relating to state immunities and to the
      jurisdiction of the United States courts over foreign states are
      governed by the Foreign Sovereign Immunities Act of 1976, which
      appears in sections 1330, 1391(f), 1441(d), and 1602 through
      1611 of Title 28, United States Code (Pub. L. No. 94-583;  90
      Stat. 2891).

   Respondents included the quoted paragraph in their notices of suit
in this case, but then attempted to qualify it by asserting that "the
Foreign Sovereign Immunities Act of 1976 is inapplicable to the action
described herein, which arises under the Alien Tort Claims Act, 28
U.S.C. Section 1350 (1982)" (Pet. App. 38a, 41a).  Petitioners thus
sought to take advantage of the special procedures under the FSIA for
service of process upon and obtaining personal jurisdiction over a
foreign state, while ignoring its rules of immunity and limitations on
jurisdiction.

   /13/ See S. Rep. 94-1310, at 1 (the FSIA "define(s) the
jurisdiction of United States courts in suits against foreign states,
(and) the circumstances in which foreign states are immune from
suit");  id. at 8 (the purpose of the FSIA "is to provide when and how
parties can maintain a lawsuit against a foreign state or its entities
in the courts of the United States and to provide when a foreign state
is entitled to sovereign immunity");  ibid. (prior to enactment of the
FSIA, there were no "comprehensive provisions in our law available to
inform parties when they can have recourse to the courts to assert a
legal claim against a foreign state" and no "firm standards as to when
a foreign state may validly assert the defense of sovereign
immunity");  id. at 12 (the FSIA "set(s) forth comprehensive rules
governing sovereign immunity" and "prescribes * * * the jurisdiction
of U.S. district courts in cases involving foreign states");  id. at
14 (the FSIA "sets forth the legal standards under which Federal and
State courts would henceforth determine all claims of sovereign
immunity raised by foreign states").  Accord H.R. Rep. 94-1487, at 1,
6, 7, 14.  See also 1976 Hearings 58 (statement by a representative of
the American Bar Association's International Law Section) ("The bill
defines comprehensively the criteria that American courts will apply
in determining when a foreign state is subject to suit.").

   A passage in the section-by-section analysis submitted with the
bill in 1973 stated that the proposed 28 U.S.C. 1330 was not intended
to supplant specialized jurisdictional regimes, such as those
established by 28 U.S.C. 1333, dealing with admiralty, maritime and
prize cases, and by 28 U.S.C. 1338, dealing with patent and copyright
cases.  1973 Hearing 47;  119 Cong. Rec. 2219 (1973).  The 1976 House
Report, however, states that the prior section-by-section analysis was
superseded by the analysis of the 1976 bill (see H.R. Rep. 94-1487, at
12), which does not contain a similar suggestion that jurisdictional
regimes outside of 28 U.S.C. 1330 might remain applicable to suits
against foreign states (see H.R. Rep. 94-1487, at 12-14).  That
omission is attributable to the fact that 28 U.S.C. 1605(b), which was
not contained in the 1973 version of the bill that was the subject of
the superseded section-by-section analysis (see 1973 Hearing 5-6),
provides that a foreign state is not immune from an in personam suit
in admiralty to enforce a maritime lien against a vessel or cargo.
This provision was intended to replace the prior practice of
proceeding in rem in admiralty suits involving a foreign state by
arresting or attaching its vessel or cargo.  See 28 U.S.C. 1609;  H.R.
Rep. 94-1487, at 21-22;  S. Rep. 94-1310, at 21-22;  1976 Hearings
74-75, 97-98;  Castillo v. Shipping Corp. of India, 606 F. Supp. 497,
502-503 (S.D.N.Y. 1985);  China Nat'l Chem. Import & Export Corp. v.
M/V Lago Hualaihue, 504 F. Supp. 684, 689-690 & n.1 (D. Md. 1981).
The legislative history states that a plaintiff may also bring an
admiralty claim under Section 1605(a) (H.R. Rep. 94-1487, at 21-22;
S. Rep. 94-1310, at 21-22).  Although the FSIA does not contain a
comparable provision specifically addressing patent, copyright and
trademark suits, such suits may be considered under the commercial
activity exceptions in 28 U.S.C. 1605(a), where applicable.  See
Morris, Sovereign Immunity:  The Exception for Intellectual or
Industrial Property, 19 Vand. J. Transnat'l L. 83, 94 (1986).

   /14/ See also 1976 Hearings 24 (statement of Legal Adviser Leigh)
(the FSIA assures that American citizens "are not deprived of normal
legal redress against foreign states who engage in ordinary commercial
transactions or who otherwise act as a private party would");  see
also id. at 31, 36 (remarks of Bruno Ristau) ("private-law
activities");  id. at 31 ("private-law dispute").

   /15/ This case of course does not present any occasion to consider
the extent, if any, of a foreign state's immunity for intentional or
negligent acts or omissions by its military forces committed in the
United States, in either a combatant or noncombatant role.

   /16/ See also 1976 Hearings 93 (until mid-century, United States
courts applied the absolute rule of immunity "to shield foreign
sovereigns from liability not only for public acts, such as the
navigation of warships, but also for commercial activities, such as
the operation of state-owned merchant vessels");  id. at 95-96
(emphasis added) (the FSIA "removes the defense for most tort suits
arising here, which would include among other cases, automobile
accidents involving diplomatic personnel and collisions involving
State-owned merchant vessels or even foreign warships in U.S.
territorial waters").

   /17/ The sensitivity of military affairs in the context of foreign
sovereign immunity is reflected in 28 U.S.C. 1611(b)(2), which
preserves a foreign state's immunity from attachment or execution even
of property in the United States, if the property is "of a military
character" or "under the control of a military authority or defense
agency," and if it "is, or is intended to be, used in connection with
a military activity." This immunity is firmly rooted in international
law (The Schooner Exchange, 11 U.S. (7 Cranch) at 144;  United States
v. Thierichens, 243 F. 419, 420-421 (E.D. Pa. 1917);  Geneva
Convention on the High Seas, Art. 8, 13 U.S.T. 2315;  1 L. Oppenheim,
International Law Section 450 (1955);  Delupis, Foreign Warships and
Immunity for Espionage, 78 Am. J. Int'l L. 53, 56-57, 74-75 (1984)),
and it was included in the FSIA to "avoid the possibility that a
foreign state might permit execution on military property of the
United States abroad under a reciprocal application of the act" (H.R.
Rep. 94-1487, at 31;  S. Rep. 94-1310, at 31).

   /18/ This conclusion is supported by a brief exchange during the
hearings regarding the Mayaguez incident, which involved the seizure
by Cambodian forces of an American merchant vessel (see U.S. Dep't of
State, Digest of United States Practice in International Law 777-782
(1975)).  Representative Jordan inquired whether that incident would
have been affected by the FSIA if it had been in effect.  Legal
Adviser Leigh responded that "there's nothing in this bill which would
have been applicable to that situation -- nothing" (1976 Hearings
53-54).

   /19/ See 461 U.S. at 489 ("if the claim does not fall within one of
the exceptions, federal courts lack subject-matter jurisdiction");
id. at 493 (the FSIA "comprehensively regulate(es) the amenability of
foreign nations to suit in the United States");  id. at 495 n.22
(quoting H.R. Rep. 94-1487, at 12 ("the Act's purpose is to set forth
'comprehensive rules governing sovereign immunity'"));  id. at 496
(same);  ibid. ("the jurisdictional provisions of the Act are simply
one part of this comprehensive scheme");  id. at 496-497 ("The Act
thus does not merely concern access to the federal courts.  Rather, it
governs the types of actions for which federal sovereigns may be held
liable in a court in the United States, federal or state.").

   /20/ See, e.g., MacArthur Area Citizens Ass'n, 809 F.2d at 919;
Jackson v. People's Republic of China, 794 F.2d 1490, 1493 (11th Cir.
1986), cert. denied, No. 86-909 (Mar. 9, 1987);  City of Englewood v.
Socialist People's Libyan Arab Jamahiriya, 773 F.2d 31, 35 (3d Cir.
1985);  Yugoexport, Inc. v. Thai Airways Int'l, Ltd., 749 F.2d 1373,
1375 (9th Cir. 1984), cert. denied, 471 U.S. 1101 (1985);  Frolova v.
Union of Soviet Socialist Republics, 761 F.2d 370, 372 (7th Cir.
1985).

   /21/ Goar v. Compania Peruana de Vapores, 688 F.2d 417, 420-422
(5th Cir. 1982);  REX v. CIA, Pervana de Vapores, S.A., 660 F.2d 61,
64-65 (3d Cir. 1981), cert. denied, 456 U.S. 926 (1982);  Williams v.
Shipping Corp. of India, 653 F.2d 875, 881 (4th Cir. 1981), cert.
denied, 455 U.S. 982 (1982);  Ruggiero v. Compania Peruana de Vapores,
639 F.2d 872, 875-876 (2d Cir. 1981);  see also Joseph v. Office of
Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987).

   /22/ The Report cited in the text discusses Article 14 of a draft
convention on the immunity of states, which provides that a state may
not invoke immunity from the jurisdiction of the forum State with
respect to proceedings relating to compensation for death or injury to
the person or damage to or loss of tangible property "if the act or
omission * * * occurred wholly or partly in the territory of the State
of the forum, and if the author of the act or omission was present in
the territory at the time of the act or omission." Report at 155.  The
Commentary explains that "(t)he basis for the assumption and exercise
of jurisdiction in cases covered by this exception is territoriality"
(Report at 158), and it sets forth some of the practical
considerations supporting the exception as so limited:  (i) "(s)ince
the act or omission has occurred in the territory of the State of the
forum, the applicable law is clearly the lex loci delicti commissi and
the most convenient court is that of the State where the delict was
committed";  (ii) "(t)he injured individual would have been without
recourse to justice had the State been entitled to invoke its
jurisdictional immunity";  and (iii) "the physical injury to the
person or the damage to tangible property * * * appears to be confined
principally to insurable risks," and the rule of nonimmunity therefore
"will preclude the possibility of the insurance company hiding behind
the cloak of State immunity and evading its liability to the injured
individuals" (Report at 156).  Significantly, moreover, the commentary
explains that as a result of the requirement that the author of the
act or omission have been present in the forum State, "cases of
shooting or firing across a boundary or of spill-over across the
border of shelling as a result of armed conflict, which constitute
clear violations of the territory of a neighboring State under public
international law, are excluded from the areas covered by article 14"
(Report at 157).

   /23/ The extent to which the court of appeals departed from
established principles of sovereign immunity is further underscored by
the fact that the United States would be immune from suit in its own
courts based on conduct such as that alleged here, because the Federal
Tort Claims Act bars a suit based on "(a)ny claim arising out of the
combatant activities of the military or naval forces, or the Coast
Guard, during time of war" (28 U.S.C. 2680(j)).  It is implausible to
support that Congress nevertheless intended to subject a foreign
nation to suit in the courts of the United States based on identical
conduct.  See also 10 U.S.C. 2734(a) and (b)(3).

   /24/ Cf. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir.
1985);  Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092
(D.C. Cir. 1980) (both holding that the Alien Tort Statute does not
waive the sovereign immunity of the United States to a suit by an
alien).

   /25/ Aside from the decision in this case, the only other case in
which jurisdiction was exercised over a foreign state under the Alien
Tort Statute was decided long after the FSIA was enacted.  Von Dardel
v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (D.D.C.
1985).  However, the district court's reliance on the Alien Tort
Statute was an alternative holding made in the context of a default
judgment, and the court did not address the question whether the
exclusive jurisdictional and immunity provisions of the FSIA
foreclosed the exercise of jurisdiction under the Alien Tort Statute.

   /26/ Quite aside from the unique bar of sovereign immunity where a
foreign state is the defendant, there is some reason to doubt that the
First Congress conceived of the Alien Tort Statute as authorizing the
courts of the United States to recognize and entertain a cause of
action by an alien against any defendant based on a violation of the
law of nations that was committed outside the United States by persons
who have no nexus to the United States or its nationals.  Compare
Lauritzen v. Larsen, 345 U.S. 571, 577-579, 592-593 (1953).  Rather,
Congress appears to have been primarily concerned with affording a
forum for those seeking redress for violations of the law of nations
for which the United States might, as a practical matter, be held
accountable, and which therefore might involve the United States in an
international controversy if redress was not afforded.  Such
violations would principally include those committed in the United
States (e.g., the celebrated incident of an assault on the French
Minister, discussed in Respublica v. De Longchamps, 1 U.S. (1 Dall.)
111 (Pa. Oyer & Term. 1784);  compare 18 U.S.C. 112), and, perhaps,
certain violations committed outside the United States but by persons
subject to its jurisdiction.  Under this construction, however, an
assault by a British citizen on the French Minister in Great Britain
(or an attack on the high seas by the military forces of one foreign
nation upon a ship registered under the laws of another foreign
nation), while perhaps a violation of the "law of nations" in a
general sense, would not give rise to a cause of action cognizable in
the courts of the United States under the Alien Tort Statute, because
the incident would not normally be subject to the laws of the United
States and would not give rise to any international responsibility on
the part of the United States.

   This interpretation of the Alien Tort Statute finds support in the
origins of the constitutional provision that confers on Congress the
power to "define and punish Offences against the Law of Nations" (Art.
I, Section 8, Cl. 10).  This provision was adopted in response to the
lack of power by the Continental Congress to punish offenses against
the law of nations, and thereby to prevent incidents involving the
States or their people from embroiling this Nation with foreign
nations.  See Tel-Oren, 726 F.2d at 783-784 (Edwards, J., concurring);
 The Federalist No. 3 (Jay), at 43-44 (Rossiter ed. 1961);  id. No. 42
(Madison), at 265;  cf. id. No. 80 (Hamilton), at 476;  Boos v. Barry,
No. 86-803 (Mar. 22, 1988), slip op. 9.  This interpretation also is
supported by the text of 28 U.S.C. 1350 itself, which confers
jurisdiction over suits based on a tort "committed in violation of * *
* a treaty of the United States" (emphasis added).  The quoted
language suggests that a suit will lie only where there is an alleged
violation of an international obligation undertaken by the United
States.  See Rogers, The Alien Tort Statute and How Individuals
"Violate" International Law, 21 Vand. J. Transnat'l L. 47, 54-55
(1988).

   Moreover, because the Alien Tort Statute (like the federal-question
statute) is only jurisdictional in nature, it does not create a cause
of action.  In the absence of an Act of Congress that extends the
substantive law of the United States to wrongs committed by one alien
against another outside the United States and creates a private cause
of action for a violation, a court would be required to "imply" a
cause of action under whatever general principles of international law
it believed should govern that conduct.  Such an approach would
present sensitive questions of foreign relations and the proper role
of Article III courts (see Tel-Oren, 726 F.2d at 801-808 (Bork, J.,
concurring)) -- especially where, as here, the defendant is a foreign
state.  The Second Circuit took a far broader view of the Alien Tort
Statute in Filartiga, upon which that court relied in this case (Pet.
App. 8a-9a).  However, whatever the soundness of Filartiga (see U.S.
Amicus Br. 13-14 n.11 (pet. stage)), that case was decided in 1980;
it therefore could have given Congress no reason to believe, when it
passed the FSIA in 1976, that an alien could even sue an individual
defendant (much less a foreign state) under that Statute based on
conduct occurring outside lthe United States and having no nexus to
this country or its nationals.

   /27/ The difficulties are illustrated by this case.  Substantive
principles regarding the use of military force against civilians in
time of war are governed by such instruments as the Convention
Respecting the Laws and Customs of War on Land, Oct. 18, 1907 (the
Hague Convention IV) (36 Stat. 2277);  the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 (6
U.S.T. 1949);  and the Proces-Verbal Relating to the Rules of
Submarine Warfare Set Forth in Part IV of the Treaty of London of
April 22, 1930 (London Nov. 6, 1936) (Documents on the Laws of War
147-150, 153-155 (1982)).  Although Article 3 of the Hague Convention
provides that a belligerent party that violates regulations concerning
the conduct of war "shall, if the case demands, be liable to pay
compensation" (36 Stat. 2290), that provision and the Geneva
Convention have been held not to be self-executing and therefore not
to give rise to a private right of action against individual
defendants.  Huynh Thi Anh v. Levi, 586 F.2d 625, 629 (6th Cir. 1978);
 Dreyfus v. Von Finck, 534 F.2d 24, 29-30 (2d Cir.), cert. denied, 429
U.S. 835 (1976);  Tel-Oren, 726 F.2d at 809 (Bork, J., concurring);
Handel v. Artukovic, 601 F. Supp. 1421, 1425 (C.D. Cal. 1985).  A
fortiori, those instruments would not give rise to a private right of
action against a state party, especially in a foreign forum.  The
court of appeals' recognition of an identical cause of action under
the Alien Tort Statute allows an alien (but not a United States
citizen) to circumvent this limitation.

   /28/ See Foreign Sovereign Immunities Act:  Hearing Before the
Subcomm. on Admin. Law & Governmental Relations of the House Comm. on
the Judiciary, 100th Cong., 1st Sess. 17, 19, 30-31, 41, 51 (1987);
note 17, supra.