761 F.2d 370 (7th Cir. 1985), 83-1451, Frolova v. Union of Soviet Socialist Republics

Docket Nº:83-1451.
Citation:761 F.2d 370
Party Name:Lois FROLOVA, Plaintiff-Appellant, v. UNION OF SOVIET SOCIALIST REPUBLICS, Defendant-Appellee.
Case Date:May 01, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 370

761 F.2d 370 (7th Cir. 1985)

Lois FROLOVA, Plaintiff-Appellant,



No. 83-1451.

United States Court of Appeals, Seventh Circuit

May 1, 1985

Submitted April 10, 1985.[*]

Page 371

Anthony D'Amato, Northwestern Law School, Chicago, Ill., for plaintiff-appellant.

Before BAUER, WOOD and COFFEY, Circuit Judges.


Lois Becker, an American citizen and a graduate student at Stanford University, traveled to the Soviet Union in 1981 to do research for her dissertation on nineteenth century Russian political literature. While there, she met and fell in love with Andrei Frolov, a Soviet citizen, and the two of them were married in Moscow on May 19, 1981. The plaintiff, now as Lois Frolova, returned to the United States when her visa expired in June 1981. Her husband was forced to stay behind because he did not yet have the documentation or official permission needed to leave the Soviet Union. In September 1981 Mr. Frolov's request to leave the U.S.S.R. was denied because of "bad relations with the United States."

Mr. Frolov renewed his request in March 1982 (apparently there is a six-month waiting period before a person can reapply for permission to leave the U.S.S.R.), shortly after his wife arrived in Moscow on a twenty-day tourist visa. This request was turned down in April 1982; the reason given this time was that Frolov's departure was "not in the interest of the Soviet State." The next month Mr. Frolov began a hunger strike, along with six other Muscovites who also had spouses living abroad.

On May 20, 1982, Lois Frolova filed the instant action, seeking an injunction and damages against the Soviet Union. She alleged that, as a result of the U.S.S.R.'s refusal to permit her husband to emigrate, she had suffered mental anguish, physical distress and loss of her rights of consortium. Ten days later, Mr. Frolov was informed by the Soviet secret police, the KGB, that he should apply for an exit visa. He did so and left the Soviet Union on June 20, 1982.

After her husband arrived in the United States, plaintiff abandoned her request for injunctive relief but not her claim for damages. The district court, acting sua sponte, 1 dismissed the action. Frolova v.

Page 372

Union of Soviet Socialist Republics, 558 F.Supp. 358 (N.D.Ill.1983). The court discussed, but did not decide, whether the Soviet Union was immune from suit under the Foreign Sovereign Immunities Act of 1976 ("FSIA"), Pub.L. No. 94-583, 90 Stat. 2891. 558 F.Supp. at 361-63. Instead, the court ruled that dismissal was required by the act of state doctrine 2 because the denial of Mr. Frolov's emigration request was an act of state that was not the proper subject of litigation in American courts. Id. at 363-64.

We need not discuss the applicability of the act of state doctrine because we conclude that under the FSIA the Soviet Union was entitled to sovereign immunity and that the district court, as a result, lacked jurisdiction. Accordingly, we affirm the district court's dismissal of this action.


For most of this nation's history foreign countries have traditionally been granted complete immunity from suit in American courts. See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812). In 1952 the State Department adopted the "restrictive" theory of foreign sovereign immunity in the so-called Tate Letter, 26 Dept. of State Bull. 984 (1952), 3 by which the United States would recognize another sovereign's immunity with regard to sovereign or public acts, but not for private acts. The application of the new doctrine was left principally to the discretion of the State Department until Congress passed the FSIA in 1976. See generally Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486-89, 103 S.Ct. 1962, 1967-69, 76 L.Ed.2d 81 (1983).

The FSIA--which, in general, codifies the restrictive theory of sovereign immunity, id. at 488, 103 S.Ct. at 1968--was designed to move resolution of foreign sovereign immunity issues from the Executive Branch to the judiciary. H.R.Rep. No. 1487, 94th Cong., 2d Sess. 7, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6606; S.Rep. No. 1310, 94th Cong., 2d Sess. 9. In addition, Congress intended the provisions of the FSIA to be 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. No. 1487 at 12, 1976 U.S.Code Cong. & Ad.News at 6610. Accordingly, the comprehensive scheme established by the FSIA is the exclusive means by which foreign countries may be sued in American courts. Id.; Verlinden, 461 U.S. at 493, 103 S.Ct. at 1971.

The FSIA begins with the presumption that foreign states are immune from suit, subject to specified exceptions. Section 1604 of Title 28 of the U.S.Code provides:

Subject to existing international agreements to which the United States is 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.

Furthermore, a district court lacks jurisdiction of a suit against a foreign country until it is determined that the defendant does not have immunity.

The district court shall have original jurisdiction without regard to amount in controversy of any nonjury civil action

Page 373

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.

28 U.S.C. Sec. 1330(a). Thus, the statement in the legislative history that sovereign immunity is an affirmative defense which must be pleaded and proven by the party asserting it, H.R.Rep. No. 1487 at 17, 1976 U.S.Code Cong. & Ad.News at 6616, is not entirely accurate. Because the absence of sovereign immunity is a prerequisite to subject matter jurisdiction, the question of immunity must be considered by a district court even though the foreign country whose immunity is at issue has not entered an appearance. Verlinden, 461 U.S. at 493 n. 20, 103 S.Ct. at 1971 n. 20.

Frolova asserts on appeal that the Soviet Union's immunity is waived by two international agreements and three statutory provisions. We shall consider each in turn.


Frolova's first argument is that the U.S.S.R. is not entitled to sovereign immunity because of the international agreement exception found in 28 U.S.C. Sec. 1604 ("Subject to existing international agreements ..."). She contends that the provisions of the United Nations Charter, 59 Stat. 1033 (1945), and the Helsinki Accords (officially entitled Conference on Security and Cooperation in Europe: Final Act), 73 Dept. of State Bull. 323 (1975), may be enforced by private litigants.

Treaties made by the United States are the law of the land, U.S. Const. art. VI, but if not implemented by appropriate legislation they do not provide the basis for a private lawsuit unless they are intended to be self-executing. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring), cert. denied, --- U.S. ----, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976). Whether a treaty is self-executing is an issue for judicial interpretation, Restatement (Second) of Foreign Relations Law of the United States, Sec. 154(1) (1965), and courts consider several factors in discerning the intent of the parties to the agreement: (1) the language and purposes of the agreement as a whole; (2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the agreement; (4) the availability and feasibility of alternative enforcement mechanisms; (5) the implications of permitting a private right of action; and (6) the capability of the judiciary to resolve the dispute. Tel-Oren, 726 F.2d at 808-10 (Bork, J., concurring); United States v. Postal, 589 F.2d 862, 876-77 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); People of Saipan v. United States Dept. of Interior, 502 F.2d 90, 97 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975); Sei Fujii v. State, 38 Cal.2d 718, 721-24, 242 P.2d 617, 620-22 (1952). Of course, if the parties' intent is clear from the treaty's language courts will not inquire into the remaining factors. See, e.g., Cardenas v. Smith, 733 F.2d 909, 918 (D.C.Cir.1984).

The provisions of the United Nations Charter on which plaintiff relies are Articles 55 and 56. 4 We have found no

Page 374

case holding that the U.N. Charter is self-executing nor has plaintiff provided us with one. There are, however, quite a few decisions stating that the Charter is not self-executing. 5 Indeed, a significant number of decisions have rejected the precise argument made here with respect to Articles 55 and 56. 6 We agree with those rulings: Articles 55 and 56 do not create rights enforceable by private litigants in American courts.

To begin with, the articles are phrased in broad generalities, suggesting that they are declarations of principles, not a code of legal rights. See Tel-Oren, 726 F.2d at 809 (Bork, J., concurring). In Article 56, for example, the member nations pledge to assist in achieving the principles of Article 55. This is not the kind of promissory language that will create a judicially-enforceable right. See In re Alien Children Education Litigation, 501 F.Supp. 544, 590 (S.D.Tex.1980) (treaty agreement to exert greatest efforts to advance education does not imply promise to provide free public...

To continue reading