Saudi Arabia v. Nelson it

Saudi Arabia v. Nelson

It is often said that the Foreign Sovereign Immunities Act (FISA), grants immunity for governmental acts, but not for commercial acts, or that it grants immunity for public acts, put not private acts. The commercial activity exception for sovereign immunity is found at 28 U.S.C.S. § 1605(a)(2), which provides that a plaintiff may sue a foreign state if: (1) the claim is based upon a commercial activity carried on in the United States by the foreign state; (2) the claim is based on an act by the foreign state performed in the United States in connection with commercial activity outside of the United States; (3) the claim is based on an act performed outside the United States in connection with commercial activity outside the United States, but that has a direct effect in the United States (28 U.S.C.S. § 1605(a)(2). Under 28 U.S.C.S. § 1603(d), the court is to look at the nature of the act, rather than the purpose of the act, to determine whether or not the act qualifies as engaging in commercial activity. These distinctions are useful. Governments engage in commercial activities on a daily basis, but, if those activities are simply part of the business of government, it would seem silly not to treat those different activities as part of the government functioning as a government. On the other hand, if a government is functioning as a business entity, it seems unfair to give them an advantage over other businesses by allowing them to have immunity in situations when privately-held companies would not have immunity. The distinctions are useful because they help the court determine whether the activity in question was business-related or government-related. In this case, the Court looked at the actions forming the basis of Nelson's claim. In other words, the Court looked at why Nelson was suing Saudi Arabia, and determined whether those claims were based on Saudi Arabia's actions as a sovereign nation or on its actions as a business.

Sovereign immunity should continue, even if it results in the occasional unjust activity. To subject foreign governments to liability for their actions as governments would be allowing other countries to dictate the internal policies of foreign countries. In this instance, the conditions of Nelson's confinement sound absolutely horrific. Moreover, it seems clear that Nelson would not have been arrested had he not been performing his job-related activities and reporting safety violations that existed in the hospital. The Saudi Arabian government, undoubtedly, if United States laws applied, committed a number of torts and crimes in confining Nelson. However, Nelson was not in the United States. U.S. law did not apply to his scenario. Nelson could have just as easily been arrested for allowing a woman to drive a car, which is a crime in Saudi Arabia, and sued because that would be wrongful imprisonment in the United States. The United States does not have the right to determine the laws in Saudi Arabia. Likewise, the United States enjoys its activities as a sovereign as well. Allowing other governments to rule on the validity of a government's activities threatens the independence of different nations. In this scenario it seems pretty clear that Nelson's claim was based upon wrongful imprisonment, which speaks to the penal portion of the government's behavior. It would be grossly overreaching to suggest that a country's criminal justice system can be the commercial activity that triggers an exception under FISA.