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13 Md. J. Int'l L. & Trade 247 (1988-1989)
The Act of State Doctrine and Foreign Sovereign Immunities Act of 1976: Can they Coexist

handle is hein.journals/mljilt13 and id is 253 raw text is: THE ACT OF STATE DOCTRINE AND FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976: CAN THEY COEXIST? IFEANYI ACHEBE* INTRODUCTION ................................... 247 PURPOSE OF THIS ARTICLE ......................... 250 I. DEFINING THE ACT OF STATE DOCTRINE ............. 250 A. Distinguishing an Act of State .................. 251 B. Distinguishing Absolute Sovereignty ............. 253 II. SOME EARLY AND RECENT EVIDENCE OF THE PROBLEMS 256 A. The Problem at the United States Supreme Court L evel . .. .. .. .. ..... ... .. .. . .. .. .. .. .. . . .. . .. . 2 56 B. Views from the Second Circuit Cases ............ 260 (i) Anticipatory Repudiation ............ 267 (ii) International Agreements ............ 267 C. Views from the Third Circuit .................. 271 D. Views from the District of Columbia Circuit ..... 272 E. Views from the Ninth Circuit .................. 274 III. VIEWS FROM THE THIRD WORLD ...................... 278 IV. THE FOREIGN SOVEREIGN IMMUNITIES ACT (1976) .... 280 A . Jurisdiction .................................. 283 B. Commercial Exception ........................ 285 V . A N ALYSIS ........................................ 288 V I. C ONCLUSION ..................................... 296 INTRODUCTION Long before the passage of the Foreign Sovereign Immunities Act of 1976 1 (F.S.I.A), the United States Supreme Court in Underhill v. Hernandez,2 had established an absolute view of the act of state doc- trine by holding that United States courts could not question the act of a foreign government. In that decision, on a United States citizen's suit for illegal detention by a Venezuelan revolutionary leader, the Court said in effect that each nation must respect the independence of other * B.A., J.D., Howard University; Assistant Professor of Law and Business at Lehigh University, Bethlehem, Pennsylvania. 1. 28 USC § 1330 (1976). 2. Underhill v. Hernandez, 168 U.S. 250 (1897). Since the founding of the Na- tion, the U.S. has respected the act of state doctrine. It was simple, unqualified, and known as the classic formulation. (247)

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