As of 12/22/09

Georgetown University Law Center Spring 2010 IMMUNITY UNDER INTERNATIONAL LAW LAW J/G-939-08 Professors Kathleen Milton and James A. Gresser Thursdays 7:55pm-9:55pm Room HTNG H1000

The objective of this 1 credit course is to examine the evolving body of international 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 just when and for what? How are the relevant international legal principles or obligations applied in practice at the domestic level? The aim of our class is to introduce students to the range of jurisdictional immunities recognized by international law and implemented in domestic law. We will cover sovereign (or state) immunity, diplomatic and consular immunity, the immunities accorded to heads of state and government and individuals on special diplomatic missions, and the special status of international organizations and their staff and member representatives, including the United Nations, its specialized agencies. Class discussions will center on the application of the various international conventions, domestic statutes, and judicially crafted rules that define the law of international immunities. There are no prerequisites, but some familiarity with basic international law would be desirable. If you need a basic introduction, we 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 (4th ed. 2003). We 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, we 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. It is Schooner, which will ensure that you do not soon forget the seminal U.S. case in the field. 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, we 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, we 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 sections of the documents that are assigned and whether it is sufficient to simply skim the document. 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 assist you in understanding the cases. While Georgetown encourages the use of TWEN in this way, please let us know if it is not working for you. PARTICIPATION: This will be a small class, and class participation is essential. We 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, entirely open-book test. CONTACT: As adjunct professors, we have no scheduled office hours at the Law Center but will be available before and after scheduled class sessions for consultations. We can be reached most days between 9:00 a.m. and 6 p.m. and are happy to talk with you at any time. When you call, please identify yourself as members of the immunities class and, if we are not available, leave a telephone number where you can be reached at the end of the day. Contact information: Professor Milton, Professor Gresser

Immunity Under International Law Georgetown University Law Center Professors Gresser and Milton Spring 2010 Schedule of Classes No. 1 Introduction and Sovereign Immunity (January 21) Overview and objectives of the course. Nature, scope, and international immunities law. Rationale for immunities. (multilateral and bilateral) and customary international law. Sovereign Immunity. Absolute and restrictive theories. Tate Sovereign Immunities Act. characteristics of Sources: treaties Introduction to Letter. Foreign

Readings
The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) [Please read the excerpts in Document section of TWEN.] 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.] No. 2 Foreign Sovereign Immunity (cont) (January 28) Scope of Application: States, organs, agencies and instrumentalities. Service of process. Waiver, tort, commercial, and arbitration exceptions.

Readings
Austria v. Altmann, 541 U.S. 677 (2004) [Please read Section III only. You will read additional sections for Class No. 3.] 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.] OBryan v. Holy See, 556 F.3d 361 (6th Cir. 2009), cert. denied, 130 S.Ct. 361 (2009) [Please read the entire case, focusing on the tort exception.]

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No. 3

Foreign Sovereign Immunity (cont) (February 4) Terrorism and human rights violations. Tiering and timing; retroactivity; Prejudgment attachment, defaults, execution of judgments. UN Convention on State Immunities.

Readings
Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) [Please read the entire case.] Austria v. Altmann, 541 U.S. 677 (2004)[Please read the fact Section and Sections I, II, IV-VI; plus Section II of the Breyer concurrence.] In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d 2008), cert. denied, 129 S.Ct. 2859 (2009) [Please read the entire case, focusing on sections III & V.] In re: Islamic Republic of Iran Terrorism Litigation, __ F.Supp.2d ___, 2009 WL 3112136 (D.D.C., September 30, 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.] 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.] No. 4 Diplomatic and Consular Immunities (February 11) Vienna Convention on Diplomatic Relations. History, scope, and application of diplomatic immunity. Special missions immunity.

Readings
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.] Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996) [Please read entire decision.] 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.] 767 Third Avenue v. Permanent Mission of Republic of Zaire, 988 F.2d 295 (2d Cir. 1993), cert . denied, 510 U.S. 819 (1993) [Please read entire decision.] Li Weixum v. Bo Xilai, 568 F. Supp. 2d 35 (D.D.C. 2008) [Please read entire decision.]
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No. 5

Diplomatic and Consular Immunities (contd) (February 25) The Vienna Convention on Consular Relations. Bilateral Treaties. Status of diplomatic and consular missions. Inviolability of premises and archives. Abuse of immunities. Remedies/PNG/Waiver.

Readings
Vienna Convention on Consular Relations, 21 U.S.T. 77, TIAS 6820, 596 U.N.T.S. 261 (1963), United States v. County of Arlington, 702 F.2d 485 (4th Cir. 1983), cert. denied, 459 U.S. 801 (1982) [Please read entire decision.] Gerritsen v. Consulate of Mexico, 989 F.2d 340 (9th Cir. 1993), cert. denied, 510 U.S. 828 (1993) [Please read entire decision.] United States v. City of Glen Cove, 322 F. Supp. 149 (E.D.N.Y.), affd, 450 F.2d 884 (2d Cir. 1971) [Please read entire decision.] No. 6 Heads of State and Other Officials (March 4) Immunities of current and former heads of state and members of their entourage from domestic and international jurisdiction. Universal jurisdiction for international crimes. Other officials.
http://untreaty.un.org/ilc/texts/instruments/english/conventio ns/9_2_1963.pdf [Please read entire Convention.]

Readings
Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004) [Please read entire decision.] 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.] Ex parte Pinochet, 2 W.R.L. 827, 119 ILR 135 (2002) (UK House of Lords, March 24, 1999, http://www.parliament.the-stationeryoffice.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm [Please read only the Judgment of Lord Browne-Wilkinson.] Doe v. Roman Catholic Diocese of Galveston-Houston, 408 F.Supp.2d 272 (S.D. Tex. 2006) [Please read entire decision]. Yousuf v. Samantar, 552 F. 3d 371 (4th Circuit, 2009) [Please read entire decision].

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No. 7

International Organization Immunity (March 18) 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 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 27, 2010 at 10:00am

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Books to Consult
Barker, The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil? (1996) Dellapenna, Suing Foreign Governments and their Corporations (2nd ed. 2003) Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (3rd ed. 2008) Fox, The Law of State Immunity (2nd ed. 2008) Dickinson, Lindsay and Loonam, State Immunity (2004) Frey, The History of Diplomatic Immunity (1999) Lee and Quigley, Consular Law and Practice (3rd ed. 2008) Moursi Badr, State Immunity (1984) Satow, Guide to Diplomatic Practice (5th ed. 1979) Schreuer, State Immunity Some Recent Developments (1993)

Comparative Materials

Canada: State Immunity Act (1985) Australia: Foreign States Immunities Act (1985) South Africa: Foreign States Immunities Act (1981) Singapore: State Immunity Act (1985)