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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