Georgetown University Law Center Spring, 2012 IMMUNITY FROM JURISDICTION UNDER INTERNATIONAL LAW LAW J/G-939-08 Professor

James A. Gresser Thursdays 7:55pm-9:55pm Room HTNG H1000

The objective of this one credit course is to examine the evolving body of international and U.S. law providing for immunities from domestic jurisdiction. Almost everyone knows that diplomats, visiting heads of state, foreign governments, and international organizations are generally entitled to some kind of immunity but when, and for what, and why? How are the relevant international legal principles or obligations applied in practice at the domestic level? This class will introduce students to the range of jurisdictional immunities recognized by international law and implemented in domestic law. Together, we will cover sovereign (or state) immunity, diplomatic and consular immunity, the immunities accorded to heads of state and government, and the immunity enjoyed by international organizations and their staff and member representatives, including the United Nations. Class discussions will center on the application of customary international law, international conventions, domestic statutes, and judicially crafted rules that define the law of international immunities. There are no specific prerequisites, but some familiarity with basic international law is essential. If you need a basic introduction, let me recommend Buergenthal and Murphy, Public International Law in a Nutshell (4th ed. 2006); Bederman, International Law Frameworks (2nd ed. 2006); or Murphy, Principles of International Law (2nd ed. 2006). Alternatively, look at Brownlie, Principles of Public International Law (7th ed. 2008); Shaw, International Law (6th ed. 2009); or Janis, An Introduction to International Law (5th ed. 2011). I assume everyone has had at least one course in criminal law and one in civil procedure. READING ASSIGNMENTS: Our texts will be primary source materials (treaties, statutes, judicial decisions, and other documents) available on TWEN. More recent cases and perhaps some articles may be assigned as the course progresses. If so, I will tell you in class or via email, and the document will be posted on TWEN. To access the TWEN website for this course, you will need the password. When you enter TWEN, please access the syllabus for the course. It contains Westlaw links to most of the materials. For those that are not available on Westlaw, I have either given you a website at which you can find the document or a copy of the document in the Course Materials section of TWEN.
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In most cases, I have provided links to or copies of an entire case or other document. Before reading them, please check this syllabus for an indication of the specific sections of the documents that are assigned. When reading cases, remember that the West headnotes and case syllabi are not part of the decision. They are not assigned reading, but feel free to use them if they help you understand the cases. PARTICIPATION: This will be a small class, and class participation is essential. I expect every class member to be prepared for each session. Our discussions and presentations will assume your familiarity with the assigned material. Your active participation in, and positive contributions to, class discussions may be taken into account in the final course grade, but only to your benefit. EXAM: The examination will be a two-hour, open-book test given on March 24, 2012, at 2.30 p.m. CONTACT: As an adjunct professor, I have no scheduled office hours at the Law Center but will be available before and after scheduled class sessions for consultations. I can be reached most days between 9:00 a.m. and 6 p.m. and am happy to talk with you at any time. When you call, please identify yourself as members of the immunities class and, if I am not available, leave a telephone number where you can be reached at the end of the day.

Immunity from Jurisdiction Under International Law Georgetown University Law Center Professor James A. Gresser Spring, 2011 Schedule of Classes No. 1 Introduction to Foreign Sovereign Immunity (January 19) Overview and objectives of the course. Nature, scope, and characteristics of international immunities law. Sovereignty. Sovereign equality. Rationale for immunities. Types of immunity. Immunity ratione personae and ratione materiae. Sources: treaties (multilateral and bilateral) and customary international law. Absolute and restrictive theories of immunity.

Required Reading:
The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) [Please read the excerpts handed out in class or in Document section of TWEN.]

Recommended Listening:
Episode 1 of The Invention of Germany, which can be accessed at www.bbc.co.uk/programmes/b016btb4 . No. 2 Immunity Ratione Personae: Heads of State and Foreign Ministers (January 26) Immunities of current heads of state and foreign ministers from domestic and international jurisdiction.

Required Reading:
Case Concerning the Arrest Warrant of 11 April 2000 (Dem Rep of Congo v. Belgium) (Judgment of Feb. 14, 2002), 2002 I.C.J. Rep. 3, http://www.icjcij.org/docket/files/121/8126.pdf [Please read entire judgment of the court but pay special attention to paras. 44 through 78.] Doe v. Roman Catholic Diocese of Galveston-Houston, 408 F.Supp.2d 272 (S.D. Tex. 2006) [Please read entire decision]. Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004) [Please read entire decision.]

Recommended Listening:
The Divine Right of Kings, which can be accessed at www.bbc.co.uk/programmes/b0080xph

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No. 3

Immunity Ratione Personae: Diplomatic Immunity (February 2) Vienna Convention on Diplomatic Relations. History, scope, and application of diplomatic immunity. Status of diplomatic and consular missions. Inviolability of premises and archives. Remedies/PNG/Waiver. Special missions immunity.

Required Reading:
Vienna Convention on Diplomatic Relations and Optional Protocols, 23 U.S.T. 3227, TIAS 7502, 500 U.N.T.S. 95 (1961) [Please read entire Convention.] Diplomatic and Consular Personnel in Tehran (United States v. Iran) (Jdgt. May 24, 1980), 1980 ICJ 3, http://www.icj-cij.org/docket/files/64/6291.pdf [Please read paragraphs 81 through 86.] Shoot-out at Libyan embassy (excerpt) [Please read the excerpt found in the Course Materials Section of TWEN.] Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996) [Please read entire decision.] Li Weixum v. Bo Xilai, 568 F. Supp. 2d 35 (D.D.C. 2008) [Please read entire decision.]

Recommended Reading:
Convention on Special Missions, http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_3_1969.pd f No. 4 Immunity Ratione Materiae: Foreign State Immunity (February 9) Tate Letter. Foreign Sovereign Immunities Act. Scope of Application: States, organs, agencies and instrumentalities. Service of process. Waiver, tort, commercial activity, and other exceptions.

Required Reading:
Tate Letter (1952), 26 Department of State Bulletin 984 [Please read the entire letter, which is found in the Course Materials Section of TWEN.] Foreign Sovereign Immunities Act, 28 U.S.C. 1330, 1332, 1391, 1441, 1602-1611 (including 1605A and 1605 Note--Civil Liability for Acts of State Sponsored Terrorism) [You may use the excerpted text in the Course Materials Section of TWEN.]
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Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) [Please read the entire case.] Republic of Argentina v. Weltover, 504 U.S. 607 (1992) [Please read the entire case.] Saudi Arabia v. Nelson, 507 U.S. 349 (1993) [Please read the entire case.] No. 5 Immunity Ratione Materiae: Foreign State Immunity (contd) (February 16) Exceptions (continued). Terrorism and human rights violations. Tiering and timing; retroactivity; Prejudgment attachment, defaults, execution of judgments. Practice of other States and UN Convention on the jurisdictional immunities of States and their property.

Required Reading:
Letelier v. Chile, 488 F. Supp. 665 (D.D.C. 1980), judgment entered, 502 F. Supp. 259 (D.D.C. 1980) [Please skim the procedural discussion and read the remainder of the case in 488 F. Supp.] Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) [Please read the entire case.] In re: Islamic Republic of Iran Terrorism Litigation, 659 F.Supp.2d 31 (D.D.C., 2009) [Please read the Conclusion only.] UN Convention on Jurisdictional Immunities of States, adopted Dec. 2, 2004 (UNGA Res 59/38), see UN Docs. A/59/22 and A/59/508 and http://www.un.org/law/jurisdictionalimmunities/index.html [You may skim this document.]

Recommended Reading:
European Convention on State Immunity 1972, http://conventions.coe.int/treaty/en/Treaties/html/074.htm [For reference only. You do not need to read this Convention.] United Kingdom State Immunity Act 1978, http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1978/cukpga_19780033_ en_1 and http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1978/cukpga_19780033_ en_2 [For reference only. You do not need to read this Act.] Other comparative materials: Canada: State Immunity Act (1985)
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Australia: Foreign States Immunities Act (1985) South Africa: Foreign States Immunities Act (1981) Singapore: State Immunity Act (1985) No. 6 Immunity Ratione Materiae: Consular immunity and the immunity of other current and former officials. (March 1) The Vienna Convention on Consular Relations. Bilateral Treaties. Immunity of other serving officials. Immunity of former government officials.

Readings
Vienna Convention on Consular Relations, 21 U.S.T. 77, TIAS 6820, 596 U.N.T.S. 261 (1963),
http://untreaty.un.org/ilc/texts/instruments/english/conventio ns/9_2_1963.pdf [Please read entire Convention.]

Gerritsen v. Consulate of Mexico, 989 F.2d 340 (9th Cir. 1993), cert. denied, 510 U.S. 828 (1993) [Please read entire decision.] Underhill v. Hernandez, 168 U.S. 250 (1897) [Please read entire decision]. Samantar v. Yousuf, __ U.S. __, 130 S.Ct. 2278, (2010) [Please read entire decision]. Jones v. Minister of the Interior, http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060614/jones -1.htm No. 7 Immunity of International Organizations (March 15) The UNs General Convention and Headquarters Agreement. The International Organization Immunities Act. Specialized agencies. Immunities of personnel of, and representatives to, international organization.

Readings
Atkinson v. Inter-American Development Bank, 156 F.3d 1335 (DC Cir. 1998) [Please read the entire case.] United States v. Palestine Liberation Office, 695 F. Supp. 1456 (SDNY 1988) [Please read Sections I, V, and VI, and Appendix A.] Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 1999 I.C.J. 62, 38 I.L.M. 873 (1999) (Cumaraswamy) [Please read paragraphs 1, 10-13, 38-67.] Ahmed v. Hoque, 2002 WL 1964806 (SDNY Aug. 23, 2002) (not reported) [Please read the entire case.] International Organizations Immunities Act, 22 U.S.C. 288 to 288l
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United Nations Charter, Article 105, http://www.un.org/aboutun/charter/ Convention on the Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900, 1 U.N.T.S. 15 (1946) [You may skim this document.] UN Headquarters Agreement, 11 U.N.T.S. 11, TIAS 1676, 12 Bevans 956, http://www.usunnewyork.usmission.gov/hc_docs/hc_law_80_357.html [You may skim this document.]

Exam March 24, 2012, at 2.30 p.m.