Foreign Sovereign Immunity
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international law update Volume 17, July–September 2011
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
e Court notes that when evaluating whether a
statute is facially unconstitutional, a court must
nd that no set of circumstances exists under
which the Act would be valid, i.e., that the law
is unconstitutional in all of its applications. By
looking to both the Interstate Commerce Clause
and the Foreign Commerce Clause, the Court
nds that Congress has the authority to keep the
channels of interstate commerce free from immoral
and injurious uses. “Unlike Congressional authority
to regulate activities aecting interstate commerce
under the third category in Lopez, Congress’s
authority to regulate the channels of commerce
is not conned to regulations with an economic
purpose or impact.” 658 F.3d 308.
“Just as [Sex Oender Registration and
Notication Act (“SORNA”)]’s ‘failure to report’
provision was intended to prevent convicted sex
oenders from ‘us[ing] the channels of interstate
commerce in evading a State’s reach,’ Carr v. United
States, 130 S. Ct. 2229, 2238 (2010), Congress
enacted § 2423(c) to close ‘signicant loopholes in
the law that persons who travel to foreign countries
seeking sex with children are currently using to
their advantage in order to avoid prosecution,’
H.R. Rep. No. 107–525, at 3 (summarizing the
purpose of adopting language similar to § 2423(c)
in the Sex Tourism Prohibition Improvement
Act).” 658 F.3d 310. Specically, Congress found
that American citizens were using the channels of
foreign commerce to travel to other countries where
poverty and lax enforcement would allow them
to commit crimes of child sexual abuse without
prosecution.
“Section 2423(c) was enacted to close the
enforcement gap and to send a message to those
who go to foreign countries to exploit children that
no one can abuse a child with impunity. us, as it
did with SORNA, Congress enacted § 2423(c) to
regulate persons who use the channels of commerce
to circumvent local laws that criminalize child
abuse and molestation. And just as Congress may
cast a wide net to stop sex oenders from traveling
in interstate commerce to evade state registration
requirements, so too may it attempt to prevent
sex tourists from using the channels of foreign
commerce to abuse children.” 658 F.3d 311.
erefore, since the jurisdictional element in §
2423(c) has an explicit connection to the channels
of foreign commerce, the Court holds that it is a
valid exercise of Congress’ power under the Foreign
Commerce Clause.
: U.S. v. Pendleton, 658 F.3d 299 (3d Cir.
2011).
FOREIGN SOVEREIGN
IMMUNITY
S C
C’ U
S
F S I A
On November 11, 1990, thirteen-year-old Kale
Ryan Walters was killed on a hunting trip when his
Chinese-manufactured rie malfunctioned and
discharged. In 1993, Kale’s parents sued China and
entities controlled by the sovereign in the United
States District Court for the Western District of
Missouri for products liability, negligence, and
breach of warranty. After being served, China
claimed sovereign immunity and entered no
appearance. e district court, determining that
it had jurisdiction over China under the Foreign
Sovereign Immunity Act (“FSIA”), entered a
default judgment against China in the amount of
$10 million.
e Walters spent ten years attempting to
collect the judgment. ey were unable to obtain
an order of attachment and execution because they
could not identify any property belonging to China
that fell within one of the FSIA exceptions. e
Walters even attempted to execute the judgment
against two Chinese giant pandas on loan to the
National Zoo in Washington, D.C. In 2006,
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