* Legal associate, White & Case, Washington, D.C. The author wishes to thank Professor David Caron, Nancy Combs, Lady Hazel Fox, and Judge Matti Pellonpää for their thoughtful comments on earlier drafts, and Nicholas Tsagourias, Dionysia–Theodora Avgerinopoulou, and Valeria San tori for their invaluable guidance regarding Greek-and Italian-language sources, respectively. Any errors are, of course, my own. This article is in memory of Derek O. Sword, whose warm friendship and good cheer will be forever cherished.

1 The summary of ill–treatment that follows derives from Al–Adsani’s allegations in his case before the European Court of Human Rights. Al–Adsani v. United Kingdom, App. No. 35763/97, paras. 9–13 (Nov. 21, 2001), available at <http://www.echr.coe.int/eng/judgments.htm> [hereinafter ECHR Judgment]. The accuracy of these allegations has not been proven in a court of law.

2 Al-Adsani v. Kuwait, 103 ILR 420 (Q.B. 1995).

3 State Immunity Act, 1978, c. 33 (UK), reprinted in 17 ILM 1123 (1978).

4 Al-Adsani v. Kuwait, 107 ILR 536 (C.A. 1996).

5 The claimant alleged, inter alia, a violation of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222. ECHR Judgment, supra note 1, para. 3.

6 “Jus cogens is a norm thought to be so fundamental that it even invalidates rules drawn from treaty or custom. Usually, a. jus cogens norm presupposes an international public order sufficiently potent to control states that might otherwise establish contrary rules on a consensual basis.” Mark W., Janis, An Introduction To International Law 62–63 (4th ed. 2003)Google Scholar; see also Akehurst’s Modern Introduction to International Law 57–58 (Peter, Malanczuk ed., 7th rev. ed. 1997)Google Scholar; Ian, Brownlie, Principles of Public International Law 514–17 (5th ed. 1998)Google Scholar [hereinafter Brownlie (5th)]; 1 Oppenheim’s International Law 512–13 (Robert, Jennings & Arthur, Watts eds., 9th ed. 1992)Google Scholar.

Jus cogens is a concept with a long lineage, whose most significant modern manifestation is Article 53 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331. Article 53 establishes the rule that” [a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” A “peremptory norm,” also known as jus cogens; is defined as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” See Christos L., Rozakis, The Concept OF Jus Cogens in the Law of Treaties (1976)Google Scholar; Ian, Sinclair, The Vienna Convention on The Law of Treaties 203 (2d ed. 1984)Google Scholar; Jerzy, Sztucki, Jus Cogems and the Vienna Convention on the Law of Treaties (1974)Google Scholar; 7 Encyclopedia of Public International Law 327 (Rudolf, Bernhardt ed., 1984)Google Scholar.

7 While examples of the stymying effect of foreign state immunity on human rights claims abound, a prototypical case is found in Saudi Arabia v. Nelson, 507 U.S. 349 (1993), in which the plaintiff, who alleged that he had been tortured by Saudi government officers, was barred from suing Saudi Arabia in U.S. court on account of the government’s foreign sovereign status. See also Bouzari v. Islamic Republic of Iran, No. 00–CV–201372 (Ont. Sup. Ct. J. May 1, 2002) (on file with author) (claims of torture barred by Canadian State Immunity Act).

8 For a detailed summary of the decision, see Marius, Emberland, Case Report: McElhinney v. Ireland, Al–Adsani v. United Kingdom, Fogarty v. United Kingdom, in 96 AJIL 699 (2002)Google Scholar.

9 ECHR Judgment, supra note 1, para. 61.

10 The Grand Chamber presiding over the proceedings was composed of seventeen judges.

11 ECHR Judgment, supra note 1, Concurring Opinion of Judges Pellonpää and Bratza.

12 Id.

13 Id., Dissenting Opinion of Judges Rozakis, Caflisch, Wildhaber, Costa, Cabral Barreto, and Vajić.

14 Id.

15 There is limited criticism of the theory. In Al–Adsani, Judges Pellonpää and Bratza focused primarily on its potentially damaging impact on international relations, see text at note 12 supra. In Prefecture of Voiotia v. Federal Republic of Germany, a minority on the Hellenic Supreme Court criticized the theory because of its unproven status in international law. Prefecture of Voiotia v. Fed. Republic of Germany, No. 11/2000 (Areios Pagos [Hellenic Sup. Ct] May 4, 2000) [hereinafter Greek Judgment II]; see text at notes 216–23 infra. In addition, one commentator pointed out that the theory is inherently contradictory in that it presupposes an implied waiver of immunity in cases in which a foreign state would never be likely to consent explicitly to waive immunity. Jürgen, Bröhmer, State Immunity and the Violation of Human Rights 191 (1997)Google Scholar; see also Hazel, Fox, The Law of State Immunity 523–25 (2002)Google Scholar (raising interesting general questions about the relationship between jus cogens and state immunity). Unfortunately, the International Law Commission’s work on codifying the law of foreign state immunity has not addressed the theory in detail. See Report of the Working Group on Jurisdictional Immunities of States and Their Property, UN Doc. A/CN.4/L.576, annex, at 58 (1999) (noting that the draft articles on jurisdictional immunities of states and their property do not address the effect of a. jus cogens violation).

16 For a general overview of the development of the doctrine, see Gamal, Moursibadr, State Immunity: An Analytical and Prognostic View 9–62 (1984)Google Scholar; Theodore R., Giuttari, The American Law of Sovereign Immunity; An Analysis of Legal Interpretation 26–102 (1970)Google Scholar; Joseph M., Sweeney, The International Law of Sovereign Immunity (Policy Research Study, U.S. Dep’t of State, 1963)Google Scholar.

17 Indeed, in the nineteenth century national courts applied the rule of immunity rather broadly. See The Parlement Beige, [1880] 5 P.D. 197, 217 (finding that “each and every one [state] declines to exercise by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign”); Spanish Gov’t v. Lambège et Pujol, Cass., D. 1849, 1, 5, 9 (finding that “a government cannot be subjected to the jurisdiction of another against its will, and that the right of Jurisdiction of one government over litigation arising from its own acts is a right inherent to its sovereignty that another government cannot seize without impairing their mutual relations”); see also Barry E., Carter, Phillip R., Trimble, & Curtis A., Bradley, International Law 547 (4th ed. 2003)Google Scholar; Lakshman, Marasinghe, The Modem Law of Sovereign Immunity, 54 Mod. L. Rev. 664, 668–78 (1991)Google Scholar.

18 See Richard A., Falk, The Role of Domestic Courts in the International Legal order 140–41 (1964)Google Scholar; Peter D., Trooboff, Foreign State Immunity: Emerging Consensus on Principles, 200 Recueil Des Cours 235, 266–67 (1986 V)Google Scholar.

19 Establishing the line between immune and nonimmune state conduct has proven to be a vexing task. See Rosalyn, Higgins, Certain Unresolved Aspects of the Law of State Immunity, 29 Neth. Int’l L. Rev. 265, 267–70 (1982)Google Scholar. See generally James, Crawford, International Law and Foreign Sovereigns: Distinguishing Immune Transactions, 1983 Brit.Y.B. Int’l L. 75 Google Scholar.

20 See, e.g., Ibrandtsen Tankers v. President of India, 446 F.2d 1198, 1200 (2d Cir. 1971) (“The proposed distinction between acts which are jure imperii (which are to be afforded immunity) and those which are jure gestionis (which are not), has never been adequately defined, and in fact has been viewed as unworkable by many commentators.”).

21 For example, the U.S. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602–1611 (2000), and the UK State Immunity Act, 1978, supra note 3, were products of this movement.

22 Courts have made this assertion before, but with insufficient explanation. See, e.g., Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983).

23 It must be emphasized that this conclusion is possible to reach because the field of foreign state immunity has not been occupied completely by international law. See “The Status of State Immunity in Relation to International Law” infra. In other areas of immunity law, however, this may not be the case. For example, the field of diplomatic and consular immunities is clearly occupied primarily by the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, confirming its international law character. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95; Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261. In the recent decision in Arrest Warrant of 11 April 2000, the International Court of Justice (ICJ) held, after assessing various international agreements, that incumbent heads of state also enjoy immunity as a matter of customary international law. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) (Int’l Ct. Justice, Feb. 14, 2002), 41 ILM 536 (2002) [hereinafter Arrest Warrant], available at <http://www.icj–cij.org/icjwww/idecisions.htm>. But see Dissenting Opinion of Judge Van den Wyngaert, id. at 622 (disagreeing with the Court’s conclusion because there is neither treaty law nor customary international law directly on point).

24 See Richard, Garnett, The Defence of State Immunity for Acts of Torture, 1997 Austl. Y.B. Int’l L. 97, 123–24 Google Scholar; Hari M., Osafsky, 11 N.Y. Int’l L. Rev. 35 (1998)Google Scholar; Georg, Ress, The Changing Relationship Between State Immunity and Human Rights, in The Birth of European Human Rights Law: Studies In Honour of Carl Aage Nørgaard 175 (Michele, de Salvia & Mark E., Villiger eds., 1998)Google Scholar. But see ECHR Judgment, supra note 1, para. 66 (“[W]hile noting the growing recognition of the overriding importance of the prohibition of torture, it [is not] established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State.”).

25 This aspect of the normative hierarchy theory is described in more detail in the text at notes 176–224 infra.

26 The only such treaty is the European Convention on State Immunity, May 16, 1972, Europ. TS No. 74, 11 ILM 470 (1972) (entered into force June 11, 1976) [hereinafter European Convention], which, as of October 7, 2003, had only eight signatories.

27 As the law of state immunity is largely uncodified on the international level, this article dwells primarily in the area of the second established source of international law listed in Article 38 (1) of the ICJ Statute, international custom. Within that area, this article draws the same distinction that Professor Lauterpacht has drawn between the law of state immunity as it relates to fundamental principles of international law and to international custom. See generally Hersch, Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 1951 Brit. Y.B. Int’l L. 220 Google Scholar. The first concept relates to a principle of international law that arises from the very structure of the international legal order, in this case the principle of sovereign equality. The second concept concerns a rule of international law whose creation is the product of prevailing international custom among states.

28 Applying the test proposed by Professor Schwarzenberger, the principle of sovereign equality is undoubtedly a fundamental principle of international law. He suggests that principles of international law may be considered fundamental if they meet the following criteria:

Georg, Schwarzenberger & Brown, E. D., A Manual of International Law 35 (6th ed. 1976)Google Scholar. Article 2(1) of the United Nations Charter enshrines the principle of sovereign equality, reflecting its fundamental character. Many believe that the principle prevents one sovereign from exercising jurisdiction over another. Thus, the sovereign equality of states is often cited as the boilerplate explanation for the doctrine of foreign state immunity. See, e.g., Restatement of the Foreign Relations Law of the United States, ch. 5 Introductory Note, at 390–91 (1987) [hereinafter Restatement].

29 For a general discussion of the principle of territorial jurisdiction, see Janis, supra note 6, at 318–20. The principle of exclusive territorial jurisdiction is commonly included under the rubric of “adjudicatory jurisdiction.” See Restatement, supra note 28, §421 (2) (a) (jurisdiction to adjudicate exists in cases in which “the person or thing is present in the territory of the state, other than transitorily”).

30 11 U.S. (7Cranch) 116(1812).

31 However, the doctrine pre–dates The Schooner Exchange, having originated in the period of monarchal rule in Europe. As Professor Giuttari explains:

Giuttari, supra note 16, at 7; see also Charles, Lewis, State and Diplomatic Immunity 11 (1980)Google Scholar.

32 The Schooner Exchange, 11 U.S. at 122.

33 Id. at 126–27.

34 Id. at 136.

35 Justice Marshall made perfectly clear that “[t]he jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.” Id. This concept exists today in international law and is commonly referred to as “adjudicatory jurisdiction.” See Restatement, supra note 28, §421. The concept also exists as a subset of “prescriptive jurisdiction.”

36 The Schooner Exchange, 11 U.S. at 136.

37 Id. at 136–37.

38 In the end, Justice Marshall found that U.S. courts were barred from inquiring into the validity of title to the Exchange because the schooner was “a national armed vessel, commissioned by, and in the service of the emperor of France.” Id. at 146.

39 Sompong, Sucharitkul, Immunities of Foreign States Before National Authorities, 149 Recueil Des Cours 87, 117 (1976 I)Google Scholar. Sucharitkul further describes such a concurrence as follows: “Contact between two States may result in a clash between two fundamental principles of international law, namely the principle of territoriality or territorial sovereignty, and the principle of the State or national sovereignty.” Id.; see also Thomas, Buergenthal & Sean D., Murphy, Public International Law 216–17, 233–34 (3d ed. 2003)Google Scholar.

40 “International law is based on the concept of the state. The state in its turn lies upon the foundation of sovereignty…..” Malcolm N., Shaw, International Law 331 (4th ed. 1997)Google Scholar. See generally Andrew L., Strauss, Beyond National Law: The Neglected Role of the International Law of Personal Jurisdiction in Domestic Courts, 36 Harv. Int’l. L. J. 373 (1995)Google Scholar.

41 See generally Edwin, DeWitt Dickinson, The Equality of States in International Law (1920)Google Scholar.

42 The significance of the territorial connection between the defendant and U.S. territory was later crystallized in the well–known case Pennoyer v. Neff, 95 U.S. 714 (1877).

43 “[T]he rights of a foreign sovereign cannot be submitted to a judicial tribunal. He is supposed to be out of the country, although he may happen to be within it.” The Schooner Exchange, 11 U.S. at 132 (arguments of U.S. Attorney General Pinkney in favor of dismissing the case on the basis of France’s sovereign immunity).

44 The concept that Justice Marshall cited as “territorial jurisdiction” refers to “authority over a geographically defined portion of the surface of the earth and the space above and below the ground which a sovereign claims as his territory, together with all persons and things therein.” Schwarzenberger & Brown, supra note 28, at 74 (footnote omitted). This type of authority reflects only one aspect of the concept of jurisdiction, which in other manifestations may include the power to project state authority extraterritorially.

45 Under modern principles of international law, a state’s right of jurisdiction includes “particular aspects of the general legal competence of states.... [such as] judicial, legislative, and administrative competence.” Brownlie (5th), supra note 6, at 301.

46 See, e.g., Nelson v. Saudi Arabia, 507 U.S. 349 (1993); Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996); Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994); Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994).

47 In cases of human rights abuses by foreign states, “adjudicatory jurisdiction” may rest on other principles of jurisdiction under public international law besides territoriality, including nationality, passive personality, the protective principle, and universality. For a discussion of the traditional bases of jurisdiction under public international law, see S.S. Lotus (Fr./Turk.), 1927 PCIJ (ser. A) No. 10 [hereinafter Lotus case]; Restatement, supra note 28, §454; Harvard Draft Convention on Jurisdiction with Respect to Crime, 29 AJIL Supp. 439 (1935). While domestic state immunity laws are typically predicated on civil jurisdiction, traditional bases of criminal jurisdiction under public international law are most suitable where human rights violations are concerned. As Professor Bowett has argued, “where the civil jurisdiction of the State is an instrument of State policy, used as a means of exercising control over activities or resources in the interests of the State, then in principle such jurisdiction ought to be subject to the same governing rules of [public] international law.” Bowett, D.W., Jurisdiction: Changing Patterns of Authority over Activities and Resources, 1982 Brit. Y.B. Int’l L. 1, 4 Google Scholar.

Within the legal systems of certain countries, domestic law limitations may limit the reach of a court’s jurisdiction under international law. In U.S. jurisprudence, it is debatable whether the Constitution’s Fifth Amendment requires that there be “minimum contacts” between the foreign state defendant and the United States, a precondition that would greatly limit U.S. courts’ ability to adjudicate human rights disputes. See Tex. Trading & Milling Corp. v. Fed. Republic of Nig., 647 F.2d 300, 313–15 (2d Cir. 1981), cert, denied, 454 U.S. 1148 (1982) (applying a separate constitutional due process analysis in the case of a suit against a foreign state); see also David J., Bederman, Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in U.S. Human Rights Litigation, 25 Ga.J. Int’l & Comp. L. 255, 273–76 (1995)Google Scholar. However, some have argued that the Fifth Amendment’s due process protections should not benefit foreign states. Lee M., Caplan, The Constitution and Jurisdiction over Foreign States: The 1996 Amendment to the Foreign Sovereign Immunities Act in Perspective, 41 Va. J. Int’l L. 369 (2001)Google Scholar; Joseph W., Glannon & Jeffery, Atik, Politics and Personal Jurisdiction: Suing State Sponsors of Terrorism Under the 1996 Amendments to the Foreign Sovereign Immunities Act, 87 Geo. L. J. 675 (1999)Google Scholar.

48 For a general discussion of the various rationales, see BrÖhmer, supra note 15, at 9; Helmut Damian, Staatenimmunität und Gerichtszwang 12 (1985); Giuttari, supra note 16, at 5–7; Sucharitkul, supra note 39, at 117–20.

49 While it is not terribly difficult to find a discussion of the competing rationales for the doctrine of foreign state immunity in the literature, an analysis of the significance of these rationales for the application of the doctrine is virtually absent.

50 Black’s Law Dictionary 1673 (7th ed. 1999)Google Scholar. Professor Badr has traced the origins of the maxim back to the fourteenth–century Italian jurist, Bartolus, who wrote “Non enim una civitas potest facere legem super alteram, quia par in parem non habet imperium” Badr, supra note 16, at 89 (quoting Bartolus, Tractatus Repressalium, Questio 1/3, para. 10 (1354)).

51 Giuttari, supra note 16, at 5.

52 Special Representative of the Vatican v. Pieciukiewicz, Cass.,jt. sess., 5 July 1982, n.4005, 1983 Rivista Di Diritto Internazionale Prtvato E Processuale 379, translated in 78 ILR 120, 121, 1985 Ital. Y.B. Int’l L. 179.

53 S. v. Brit. Treasury, Panstwo I Prawo, No. 4, 1949, at 119 (Pol. Sup. Ct. Dec. 14, 1948), translated in 24 ILR 223, 224–25.

54 Lassa, Oppenheim, International Law 239–41 (6th ed. 1947)Google Scholar. More recently, Professor Sucharitkul, in his Hague Academy lectures, taught that the rationale for state immunity “may be expressed in terms of Sovereignty, Independence, Equality and Dignity of States,” which collectively form “a firm international legal basis for sovereign immunity.” Sucharitkul, supra note 39, at 117; see also Sompong, Sucharitkul, Immunity of States, in International Law: Achievements and Prospects 327, 327 (Mohammed, Bedjaoui ed., 1991)Google Scholar (“As a consequence of sovereignty and equality of States, each State is presumed, in certain circumstances, to have consented to waive or to refrain from exercising its exclusive territorial jurisdiction in a legal proceeding in which another State is a party without its consent.”). Professor Riesenfeld, too, appears to have placed significant weight on the principle of state equality. Stefan A., Riesenfeld, Sovereign Immunity in Perspective, 19 Vand. J. Transnat’l L. 1, 1 (1986)Google Scholar (citing Dickinson, supra note 41); see also Restatement, supra note 28, ch. 5 Introductory Note, at 390–91; Harvard Research in International Law, Competence of Courts in Regard to Foreign States, 26 AJIL Supp. 455, 527 (1932) [hereinafter Harvard Research]; Council of Europe, Explanatory Reports on the European Convention on State Immunity and The Additional Protocol 5 (1985).

55 See sources cited supra note 18.

56 For a general discussion of the development of the Soviet theory of international law, see Grigory I., Tunkin, Soviet Theory of Sources of International Law, in Völkerrecht und Rechtsphilosophie: Internationale Festschrift für Stephan Verosta 66, 66 (Peter, Fischer, Heribert, Franz Köck, & Albert, Verdross eds., 1980)Google Scholar; see also Branimir M., Jankoviċ, Public International Law 60–65 (1984)Google Scholar.

57 Boguslavskij, M. M., Staatliche Immunität 168 (1965)Google Scholar.

58 The Soviet view modernized the classic justification for par in parem non habet imperium, relying not on the concept of international personality but, rather, on Article 2(1) of the United Nations Charter, which enshrines the principle of the sovereign equality of all United Nations members. See, e.g., Lunc, L. A., Mezhdunarodnoe Chastnoe Pravo, Osobennaia Chast (Private International Law) 77–91 (1975)Google Scholar; Pereterskii, I. S. & Krylov, S. B., Mezhdunarodnoe Chastnoe Pravo (Private International Law) 197–206 (2d. ed. 1959)Google Scholar.

59 Sucharitkul, supra note 39, at 117.

60 Professor Sucharitkul’s preference for state equality over state jurisdiction as the source of state immunity is clear from his subsequent comments: “Reciprocity of treatment, comity of nations and courtoisie internationale are very closely allied notions, which may be said to have afforded a subsidiary or additional basis for the doctrine of sovereign immunity.” Id. at 119 (emphasis added).

61 See “Resolving the conflict of principles” infra, which demonstrates that the “fundamental right” rationale provides a less persuasive explanation for the creation of the doctrine of foreign state immunity.

62 Giuttari, supra note 16, at 6.

63 The Schooner Exchange, 11 U.S. (7 Cranch) 116, 136 (1812). In The Parlement Beige, the court referred to state immunity as a “consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign state to respect the independence of every other sovereign state.” [1880] 5 P.D. 197, 217 (emphasis added).

64 Indeed, the first statement of law injustice Marshall’s opinion affirms the exclusivity of the state’s territorial jurisdiction. See text at note 34 supra.

65 11 U.S. at 136. Justice Marshall observed that this “relaxation” of state jurisdiction had become established in three cases: (1) the exemption of the sovereign’s person from arrest or detention, (2) the immunity of foreign ministers, and (3) the free passage of friendly foreign troops. Id. at 137–40.

66 Id. at 137. Thus, according to Justice Marshall, a state is said “to waive the exercise of a part of that complete exclusive territorial jurisdiction.” Id. By way of clarification, the “waiver” of jurisdiction, described by Justice Marshall as creating the doctrine of state immunity, and the implied “waiver” of state immunity, which some argue occurs when a state violates jus cogens, are potentially confusing, yet distinct concepts. Here, in describing Justice Marshall’s theoretical construct, the term “license” is used. See Ian, Brownlie, Principles of Public International Law 321 (3d ed. 1979)Google Scholar (“By licence the agents of one state may enter the territory of another and there act in their official capacity.” (footnote omitted)) [hereinafter Brownlie (3d)]; Lauterpacht, supra note 28, at 229 (the language of The Schooner Exchange clearly indicates that “the governing, the basic, principle is not the immunity of the foreign state but the full jurisdiction of the territorial state and that any immunity of the foreign state must be traced to a waiver—express or implied—of its jurisdiction on the part of the territorial state”).

67 An exemption to the forum state’s jurisdictional authority was not necessary with respect to aliens. As Justice Marshall explained:

The Schooner Exchange, 11 U.S. at 144.

68 Ian, Sinclair, The Law of Sovereign Immunity: Recent Developments, 167 Recueil Des Cours 113, 215 (1980 II)Google Scholar.

69 Id.

70 Robert, Jennings, The Place of the Jurisdictional Immunity of States in International and Municipal Law 19 (Vortrag vor dem Europa–Institut der Universität des Saarlandes No. 108, 1987)Google Scholar; see also Higgins, supra note 19, at 271.

71 Professor Hyde explains:

1 Charles, Cheney Hyde, International Law 815–16 (2d rev. ed. 1945)Google Scholar; see also General Principle of Exemption, 2 Hackworth, Digest §169, at 393 (ascribing the origins of state immunity to the consent of the territorial sovereign and the principle of equality, but also taking note of the “necessity of yielding the local jurisdiction . . . as an indispensable factor in the conduct of friendly intercourse between members of the family of nations”); 2 O’ Connell, D. P., International Law 915 (1965)Google Scholar (“Originally the waiver may have been ex gratia, but probably the universal practice of granting immunity has produced a rule of positive law.”).

72 The Schooner Exchange, 11 U.S. at 136.

73 As explained in part II, the practice of waiving adjudicatory jurisdiction in favor of state immunity has crystallized into a rule of customary international law with respect to a limited core body of state conduct that serves the collective interests of the community of nations.

74 In the last fifteen years, there has been little, if any, serious treatment of the significance of the competing rationales for foreign state immunity. See, e.g., Report of the International Law Commission on the Work of Its Fortythird Session, [1991] 2 Y.B.Int’l L. Comm’n 32 Google Scholar, UNDoc.A/CN.4/SER.A/1991 (Part 2) (choosing not to address the issue). One reason may be that with the general acceptance of the theory of restrictive immunity among the Western states, the drive to ponder such abstractions waned considerably. The loss of intellectual steam might have been further augmented by the decline of the Soviet Union and its dogmatic promotion of the “fundamental right” rationale. However, at the inception of another broad movement to restrict state immunity, now predicated on human rights protection, it is useful to revisit the topic and to attempt to determine which rationale should control.

75 Interestingly, Professor Brierly was quite skeptical about the principle of sovereign equality in general. Brierly, J. L., The Law of Nations 130–32 (Humphrey, Waldock ed., 6th ed. 1963)Google Scholar.

76 Dickinson, supra note 41, at 5 (emphasis added). “The meaning of equality as a legal principle is explained by a few modern writers in a way that approaches scientific precision. Some define it in terms that suggest equality of rights, and then proceed to explain it as equality of legal capacity.” Id. at 106.

77 Id. (quoting August Wilhelm Heffter, Volkerrecht §§26–27).

78 Western, Sahara, Advisory Opinion, 1975 ICJ Rep. 12, 63–65 (Oct. 16)Google Scholar; Oppenhelm, supra note 6, at 121; Shaw, supra note 40, at 331.

79 In the Lotus case, the Permanent Court of International Justice found that “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” Lotus case, supra note 47, at 18. Indeed, territory is one of the fundamental conditions for statehood.

80 Id. at 18. Sovereignty is thus in the main a mutually exclusive concept; as with the laws of physics governing matter, no two sovereigns can occupy the same space at the same time.

81 Janis, supra note 6, at 186; see also Island of Palmas Case (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).

82 As Professor Janis explains, the elements of statehood “impart a certain mutual exclusivity among states that we know as sovereignty, one of international law’s most important principles.” Janis, supra note 6, at 185–86.

83 Lotus case, supra note 47, at 18.

84 “Restrictions upon the independence of States cannot therefore be presumed.” Id.

85 Lauterpacht supports this conclusion on historical grounds. According to him, the relationship between the principle of sovereign equality and state immunity “finds no support in classical international law. Grotius does not refer to it. Bynkershoek occasionally deprecates it: ‘Principes dum contrahunt haberi privatorum loco.’ Vattel, after admitting it with regard to the person of the foreign sovereign, is silent with regard to the position of foreign states as such.” Lauterpacht, supra note 27, at 228 (citation omitted).

86 According to Professor Janis, the “rights” of statehood are not so broad as to include the right to be free from foreign domestic proceedings. (ANIS, supra note 6, at 188.

87 In the ninth edition of Oppenheim’s International Law, Jennings and Watts agree, but for a different reason:

Oppenheim, supra note 6, at 341–42 (footnotes omitted).

88 This point formed the linchpin of the Communist position on foreign state immunity. See text at notes 55–58 supra.

89 As Michael Byers explains:

Michael, Byers, Custom, Power, and the Power of Rules: Customary International Law from an Interdisciplinary Perspective, 17 Mich J. Int’l L. 109, 170 (1995)Google Scholar; see also BrÖhmer, supra note 15, at 14–15.

90 The organizational bifurcation of international law textbooks into sections on “absolute immunity” and “restrictive immunity” tends to add to the confusion. See, e.g., Buergenthal & Murphy, supra note 39, at 234–36; Carter, Trimble, & Bradley, supra note 17, at 547–52; Lori F. Damrosch Et Al., International Law: Cases and Materials 1200–42 (4th ed. 2001).

91 Badr, supra note 16, at 11.

92 Id at 13.

93 According to the American Law Institute, “Until the twentieth century, sovereign immunity from the jurisdiction of foreign courts seemed to have no exceptions.” Restatement, supra note 28, ch. 5 Introductory Note, at 391 (emphasis added).

94 Shaw, supra note 40, at 494 (noting that the “relatively uncomplicated role of the sovereign and of government in the eighteenth and nineteenth centuries logically gave rise to the concept of absolute immunity”).

95 Such claims would most likely have been handled on the state level according to the law of diplomatic protection. See generally Edwin M., Borchard, The Diplomatic Protection of Citizens Abroad (1927)Google Scholar.

96 For a description of this position, see text at notes 50–61 supra.

97 See The Schooner Exchange, 11 U.S. at 145; Badr, supra note 16, at 11.

98 The “fundamental right” view provides no meaningful treatment of this topic.

99 See Badr, supra note 16, at 80–84; BrÖhmer, supra note 15, at 37–41; James, Crawford, A New Foreign State Immunities Act for Australia’? 1983 Austl.Y.B. Int’l L. 71, 92 Google Scholar; Christian, Dominicé, The Relationship Between State Immunity and the Jurisdiction of Courts, in International Law Association, Documentation for the Members of the Committee on State Immunity (prepared for the ILA Cairo Conference, 1992)Google Scholar.

100 In general, there must be a reasonable link between the dispute and the forum state. See Brownlie (5th), supra note 6, at 301.

101 Arrest Warrant, supra note 23, para. 46; see also id., Joint Separate Opinion of Judges Higgins, Kooijmans, & Buergenthal, para. 5, 41 ILM at 574.

102 .See Jennings, supra note 72, at 22 (“For competence, both juridically and physically in respect of persons and property within the territory of the forum is the normal basis of curial power and ultimately therefore of curial authority.”).

103 Even states that have adopted the theory of restrictive immunity still cite these factors as a reason. Restatement, supra note 28, ch. 5 Introductory Note, at 390.

104 See Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983).

105 The applicable bases of jurisdiction under international law are outlined supra note 47.

106 28 U.S.C. §§1604–1605 (2000).

107 H.R. Rep. NO. 94–1487, at 17 [hereinafter House Report]. The drafters did not intend that the plaintiff should bear the burden of proving that a state was not immune, but the construction of the rule has had this effect in practice. Cf McDonnell Douglas Corp. v. Iran, 758 F.2d 341, 348 (8th Cir. 1985) (noting that the “FSIA recogniz.es that sovereign immunity is the exception, rather than the rule . . .”). 108 Libyan Arab Socialist People’s Jamahiriya v. Actimon SA, translated in 82 ILR 30, 32 (Switz. Fed. Trib. Apr. 24, 1985).

109 Some scholars have approached the doctrine of foreign state immunity similarly. See, e.g., Benedetto, Conforti, Diritto Internazionale 220 (5th ed. 1997)Google Scholar (explaining that state immunity is the rule rather than the exception).

110 European Convention, supra note 26, Art. 15.

111 For the most recent version of the draft articles, see Report of the Ad Hoc Committee on Jurisdictional Immunities and Their Property, UN GAOR, 57th Sess., Supp. No. 22, annex, at 3–13, UN Doc. A/57/22 (2002), available at <http://www.un.org/law/jurisdictionalimmunities/index.html>. Forthe 1991 draft articles with commentary, see The International Law Commission (1949–1998), at 2006–103 (Arthur Watts ed., 1999).

112 Sompong, Sucharitkul, Developments and Prospects of the Doctrine of State Immunity: Some Aspects of Codification and Progressive Development, 29 Neth. Int’l L. Rev. 252, 261 (1982)Google Scholar.

113 Other codification projects have established a similar legal framework based on a blanket rule of immunity. See International Law Association, Revised Draft Articles for a Convention on State Immunity, Art. II (66th Conf., 1994)Google Scholar; Harvard Research, supra note 54, Art. 7. The work of the Institut de Droit International is the notable exception, enumerating criteria indicative of the competence and incompetence of the forum state in actions against foreign states. See Contemporary Problems Concerning the Jurisdictional Immunity of States, [1991] 2 Annuaire de L’Institut De Droit International 214.

114 As Professor Schreuer points out, both approaches may result in confusion.

Christoph H., Schreuer, State Immunity: Some Recent Developments 5 (1988)Google Scholar. Still, weighing the options, the latter course of logic is more beneficial to the development of the doctrine of foreign state immunity because it adds more flexibility to its scope and nature.

115 Higgins, supra note 19, at 271.

116 Id.

117 The European Convention has been adopted by eight countries: Austria, Belgium, Cyprus, Germany, Great Britain, Luxembourg, the Netherlands, and Switzerland. The Additional Protocol to the Convention, May 16,1972, Europ. TS No. 74A, has been ratified by six countries. For a discussion of other treaties of peripheral relation, see BrÖhmer, supra note 15, at 121–25.

118 Indeed, the Convention for the Settlement of Investment Disputes Between States and Nationals of Other States expressly provides that none of its provisions dealing with the recognition and enforcement of an ICSID arbitral award “shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.” Convention for the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, Art. 55, 17 UST 1270, 575 UNTS 159.

119 An exhaustive inductive study of the consistency and uniformity of state practice and the existence of opinion juris in this area is unfortunately not possible in an article of this length.

120 The Schooner Exchange, 11 U.S at 137–41.

121 Id. at 136.

122 As obiter dictum, Marshall stated:

Id. at 145.

123 As explained, a state’s right to absolute immunity is based on a myth. See text at notes 88–95 supra.

124 See text at notes 88–95 supra.

125 William W., Bishop, New United States Policy Limiting Sovereign Immunity, 47 AJIL 93, 105 (1953)Google Scholar.

126 BrÖhmer, supra note 15, at 22 (“The question why a state should enjoy immunity for governmental acts was largely avoided.”).

127 See text at notes 105–16 supra.

128 Arrest Warrant, supra note 23, para. 51; see also id., para. 54 (concluding, on the basis of customary international law, that “the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability”).

129 Id., paras. 53, 54.

130 The Schooner Exchange, 11 U.S. at 136.

131 Courts and commentators typically ascertain customary international law on the basis of two traditional elements, the general practice of states and opinio juris. Military and Paramilitary Activities in and Against Nicaragua (Nicar.v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27); Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13, 29 (June 3). According to the ninth edition of Oppenheim, “A custom is a clear and continuous habit of doing certain actions which has grown up under the aegis of the conviction that these actions are, according to international law, obligatory or right.” Oppenheim, supra note 6, at 27. Professor Hudson explains: “The elements necessary are the concordant and recurring action of numerous States in the domain of international relations, the conception in each case that such action was enjoined by law, and the failure of other States to challenge that conception at the time.” Manley O., Hudson, The Permanent Court of International Justice, 1920–1942, at 609 (1943)Google Scholar; see also Luigi, Condorelli, Custom, in International Law: Achievements and Prospects, supra note 54, at 179, 187 Google Scholar.

The first element, state practice, represents the objective element of the test: a rule of international law exists only if reflected in the general practice of states. Akehurst, supra note 6, at 39. The latter element, opinio juris, represents the test’s subjective element: in addition to conforming to state practice, a state must feel compelled to do so by an international law obligation. Id. at 44 (describing opinio juris as the “psychological element” of the test).

132 Letelier v. Republic of Chile, 488 F.Supp. 665, 673 (D.D.C. 1980); Liu v. Republic of China, 642 F.Supp. 297, 305 (N.D. Cal. 1986).

133 See Schreuer, supra note 114, at 47.

134 Letelier, 488 F.Supp. at 673; Liu, 642 F.Supp at 305 (quoting Letelier). Prefecture of Voiotia, discussed in detail in text at notes 279–86 infra, reaches the same conclusion.

135 28 U.S.C. §1605(a) (7) (2000). The amendment was promulgated as §221 of the Anti–Terrorism and Effective Death Penalty Act, Pub. L. No. 104–132, §221, 110 Stat. 1214, 1241 (1996).

136 28 U.S.C. §1605(a)(7). At the time of this writing, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria were so designated. U.S. Dep’t of State, Patterns of Global Terrorism: 2002, at 76 (2003), available at <http://wwv/.state.gov/s/ct>.

137 28 U.S.C. §1605(a)(7).

138 Id. (emphasis added).

139 The Foreign Sovereign Immunities Act: Hearing on S. 825 Before the Subcomm. on Courts and Administrative Practice of the Senate Comm. on the Judiciary, 103d Cong. 8,10 (1994) (testimony of Stuart Schiffer, deputy assistant attorney general, Civil Division, U.S. Dep’t of Justice, and Jamison S. Borek, deputy legal adviser, U.S. Dep’t of State).

140 But see supra note 113 (describing the work of the Institut de Droit International).

141 Daniel J., Michalchuk, Filling a Legal Vacuum: The Form and Content of Russia’s Future State Immunity Law: Suggestions for Legislative Reform, 32 Law & Pol’y Int’l Bus. 487, 497 (2001)Google Scholar (“With Russia’s emergence as a market economy, the theoretical and ideological foundations for an absolute approach to state immunity no longer exist in the Russian Federation.”). New constitutional regimes in the former Soviet republics will also permit a greater role for international law in domestic systems by including constitutional provisions similar to those of the civil law systems of Western Europe. See Gennady M., Danilenko, Implementation of International Law in CIS States: Theory and Practice, 10 Eur. J. Int’l L. 51 (1999)Google Scholar; Gennady M., Danilenko, The New Russian Constitution and International Law, 88 AJIL 451 (1994)Google Scholar; Oleg, Tiunov, The Constitution Court of the Russian Federation and International Law, in Liber Amicorum Bengt Broms 627 (Matti, Tupamäki ed., 1999)Google Scholar. See generally Constitutional Reform and International Law in Central and Eastern Europe (Rein, Müllerson, Malgosia, Fitzmaurice, & Mads, Andenæs eds., 1998)Google Scholar.

142 Compare Zhengyu Ni, supra note 68, and Jill A., Sgro, Comment, China’s Stance on Sovereign Immunity: A Critical Perspective on Jackson v. People’s Republic of China, 22 Colum. J. Transnat’l L. 101 (1983)Google Scholar, with Guiguo, Wang, China’s Attitude Towards State Immunity—An Eastern Approach, in Japan and International Law: Past, Present and Future 153, 171–72 (Nisuke, Ando ed., 1999)Google Scholar (speculating that the People’s Republic of China would abide by the International Law Commission’s draft articles on state immunity since its chairman, Shi Jiuyong, is a representative of the PRC government).

143 Opinion is still in great flux. See Hazel, Fox, A “Commercial Transaction” Under the State Immunity Act 1978, 43 Int’l. & Comp. L. Q. 193, 193 (1994)Google Scholar (“[U]nlike the Soviet Union, members of the CIS and Central European States have indicated support for a restrictive rule, although the People’s Republic of China and some Latin American States remain in favour of absolute immunity.”).

144 28 U.S.C. §1603(d) (2000). For a summary of the long struggle to distinguish public from private acts, see Joseph W. Dellapenna, Suing Foreign Governments and Their Corporations 148–52 (1988).

145 Cass, le civ., May 2, 1990, Bull. civ. I, No. 9. For a discussion of the implications of this case, see BrÖhmer, supra note 15, at 110; Klaus, Gabrinski, Staatenimmunität im Erkenntnisverfahren—the französiche Rechtsprechung im internationalen, insbesondere deutschen Vergleich, 12 IPRax 55 (1992)Google Scholar.

146 Recognizing the varying practices of states in this regard, the International Law Commission proposed draft Article 3(2), see supra note 111, which incorporates both aspects into the test for a commercial transaction. Greig, D.W., Forum State Jurisdiction and Sovereign Immunity Under the International Law Commission’s Draft Articles, 38 Int’l & Comp. L.Q. 243, 256–57 (1989)Google Scholar.

147 Crawford, supra note 19, at 77–78.

148 Fox, supra note 15, at 127; see also Fox, supra note 143, at 194.

149 Joseph W., Dellapenna, Foreign State Immunity in Europe, 5 N.Y. Int’l L. Rev. 51, 61 (1992)Google Scholar (emphasis added).

150 There are a few exceptions. Argentina, a civil law country, recently enacted national state immunity legislation. Law No. 24488 (Inmunidad jurisdictional de los Estados extranjeros ante los Tribunales argentinos), June 22, 1995, Boletín Oficiax, June 28, 1995, at 1. In Ireland, a common law country, the Supreme Court, in McElhinney v. Secretary of State, felt compelled to draw on customary international law since Ireland had not enacted national immunity legislation. [1996] 1 I.L.R.M. 276.

151 Antonio, Cassese, International Law 91 (2001)Google Scholar.

152 BrÖhmer, supra note 15, at 9.

153 See id.; Damian, supra note 48, at 10; see also Cassese, supra note 151, at 91; Contortl, supra note 109, at 226–27; Ress, supra note 24, at 177; Anna, Wyrozumska, The State Immunity in the Practice of Polish Courts, 1999–2000 Polish Y.B. Int’l L. 77, 92, 94 Google Scholar. But see Jenö C. A., Staeheun, The Gewohnheitsreghtliche Regelunc, Der Gerichtsbarkeit Über fremde Staaten im Völkerrecht 99–128 (1969)Google Scholar (arguing that foreign state immunity is regulated by the municipal law of the forum state only).

154 See, however, the Argentine law, supra note 150.

155 Cost. Art. 10, first sentence (“L’ordinamento giuridico italiano si conforma alle norme del diritto internazionale generalmente riconosciute”). For similar provisions, see Article 25 of the German Constitution, Article 20 (1) of the Danish Constitution, Article 93 of the Spanish Constitution, Article 28 of the Greek Constitution, and Article 8(1) of the Portuguese Constitution. For a general discussion, see Vladlen S., Vereshchetin, New Constitutions and the Old Problem of the Relationship Between International Law and National haw, 7 Eur. J. Int’l L. 29 (1996)Google Scholar.

156 This point has been made effectively by one of Italy’s eminent scholars, Professor Conforti:

Benedetto, Conforti, International Law and the Role of Domestic; Legal Systems 8–9 (1993)Google Scholar.

157 The presence or absence of national immunity legislation is also significant. See the example of McElhinney v. Secretary of State, supra note 150.

158 In the context of the immunities of international organizations, one scholar has written: “The absence of a specific statute on the immunity of international organizations compels Italian courts to decide such issues on the basis of international law.” Andrea Bianchi, Book Review, 88 AJIL 212, 212 (1994) (reviewing Saverio De Bellis, L’Immunita Delle Organizzazioni Internazionali Daila Giurisdizione (1992)).

159 Pieciukiewicz, supra note 52, 78 ILR at 121. Similarly, the Greek Supreme Court stated: “We ascertain the general practice of the nations of the international community, which is accepted as custom, that is, [we ascertain] the formation of international custom, which is, according to article 28, paragraph 1 of the Constitution, an integral part of the [Greek] domestic legal order, superseding any statutory provision to the contrary.” Greek Judgment II, supra note 15, at 7. Scholars have echoed this proposition. See sources cited supra note 153.

160 In noting states’ consent to a relaxation of absolute jurisdiction, see text at note 65 supra, Justice Marshall added that “[t]his consent may, in some instances, be tested by common usage, and by common opinion, grouting out of that usage.” 11 U.S. at 136 (emphasis added).

161 Lauterpacht, supra note 27. According to one leading commentator on state immunity, Lauterpacht’s essay “had a strong stimulative effect in the United States.” Address by Monroe, Leigh, in International Law Association, State Immunity: Law and Practice in the United States and Europe 3, 3 (Proceedings of a conference held on Nov. 17, 1978)Google Scholar.

162 Lauterpacht, supra note 27, at 228.

163 Id. at 227.

164 Id. at 228.

165 Id. at 236–41.

166 See Brownlie (3d), supra note 66, at 333; see also Higgins, supra note 19, at 271.

167 Brownlie (3d), supra note 66, at 334 (internal references omitted).

168 Id. (footnotes and internal reference omitted). Professor Brownlie reaffirmed his doubts as to the existence of a customary rule of foreign state immunity more recently. Id. (5th), supra note 6, at 332–33.

169 Another scholar well versed in the common law concluded a significant study on state immunity practice by stating:” [I]t has become difficult to say whether State immunity is a question of customary international law, of treaty law or of domestic law.” Schreuer, supra note 114, at 4. Some common law scholars, however, have disagreed with Lauterpacht and Brownlie. The American Law Institute, for example, maintains that” [t]he immunity of a state from the jurisdiction of the courts of another state is an undisputed principle of customary international law.” Restatement, supra note 28, ch. 5 Introductory Note, at 390. Professor Jennings has posited:

Jennings, supra note 70, at 4–5; see also Fox, supra note 15, at 68–70.

170 Leigh, supra note 161, at 4.

171 Mark B., Feldman, The United States Foreign Sovereign Immunities Act of 1976: A Founder’s View, 35 Int’l & Comp. L.Q. 302, 302 (1986)Google Scholar.

172 Professor Badr compiled a collection of many of these statutes. Badr, supra note 16, appendices, at 169. But see Andrea, Bianchi, Denying State Immunity to Violators of Human Rights, 46 Aus. J. Pub. & Int’l L. 195, 197 (1994)Google Scholar (“The fact that the rulings of domestic courts have shaped the developments of state immunity and that, recently, some states have passed legislation on the subject, does not infringe upon the international nature of the rule.”).

173 Prefecture of Voiotia v. Federal Republic of Germany, the only case to adopt the normative hierarchy theory, originated in a civil law country, Greece.

174 Accordingly, the statement by the Swiss Federal Tribunal that a “state cannot be brought before the courts of another state except in exceptional circumstances” is inaccurate. See text at note 108 supra.

175 Such claims would also have to fall within the forum state’s right to exercise adjudicatory jurisdiction with respect to them.

176 488 U.S. 428 (1989).

177 Id. at 431.

178 Id. at 434. Accordingly, the Court rejected each of the plaintiffs’ proposed bases of jurisdiction: the U.S. Alien Tort Statute, 28 U.S.C. §1350, general admiralty and maritime jurisdiction, 28 U.S.C. §1333, and the principle of universal jurisdiction under customary international law.

179 Id. at 434–35. The Court noted that Congress had clearly addressed international law violations in 28 U.S.C. §1605 (a) (3), which denies foreign states immunity in cases “in which rights in property taken in violation of international law are in issue.” Id. at 435–36.

180 The plaintiffs argued to no avail that the facts of the case triggered the FSIA’s noncommercial torts exception, § 1605 (a) (5), and that the Argentine government’s ratification of certain treaties regulating state conduct on the high seas triggered §1604, the “international agreements” exception. Id. at 439–43. Some have argued that, while not a formal exception to immunity under the FSIA, the international agreements exception is a mechanism for denying a state immunity for violations of international law. See, e.g., Von Dardel v. Union of Soviet Socialist Republics, 623F.Supp. 246, 255–56 (D.D.C. 1985); Jordan J., Paust, Draft Brief Concerning Claims to Foreign Sovereign Immunity and Human Rights: Nonimmunity for Violations of International Law Under the FSIA, 8 Hous.J. Int’l L. 49, 61–65 (1985)Google Scholar.

181 Adam C., Belsky, Mark, Merva, & Naomi, Roht–Arriaza, Comment, Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Cal. L. Rev. 365 (1989)Google Scholar.

182 Id at 381, 385–89.

183 Id. at 386.

184 Id. at 390.

185 Id.

186 Id. at 377.

187 Id. at 394.

188 28 U.S.C. §1605 (a) (1) (emphasis added).

189 The closest that a U.S. court has come was in Von Dardel v. Union of Soviet Socialist Republics, in which the court concluded, on the basis of the FSIA’s “international agreements” exception, that the Soviet Union could not claim immunity for certain acts that constituted breaches of treaties to which the Soviet Union was a party. 623 F.Supp. 246, 256 (D.D.C. 1985).

190 965 F.2d 699 (9th Cir. 1992) (citing Belsky et al., supra note 181).

191 Id. at 702–04.

192 Id. at 714–19.

193 Id. at 719–23.

194 Id. at 718.

195 26 F.3d 1166 (D.C. Cir. 1994).

196 The majority’s decision against the plaintiff turned on the determination that the “jus cogens theory of implied waiver is incompatible with the intentionality requirement implicit in § 1605 (a) (1),” the waiver exception. Id. at 1174.

197 Id. at 1179 (Wald, J., dissenting).

198 Id. at 1182.

199 Id. at 1183–84.

200 In Smith v. Socialist People’s Libyan Arab Jamahiriya, the court intimated acceptance of the normative hierarchy theory, stating:

101 F.3d 239, 244 (2d Cir. 1996). Plaintiffs continue to raise the normative hierarchy theory in U.S. courts. See, e.g., Boshnjaku v. Federal Republic of Yugoslavia, 2002 WL 1575067 (N.D. 111. July 18, 2002); Garb v. Republic of Poland, 207 F.Supp.2d 16 (E.D.N.Y. 2002); Abrams v. Societe Nationale des Chemins de Fer Francais, 175 F.Supp.2d 423 (E.D.N.Y. 2001) ; Joo v. Japan, 172 F.Supp.2d 52 (D.D.C. 2001); In re World War II Era Japanese Forced Labor Litigation, 164 F.Supp.2d 1160 (N.D. Cal. 2001); Hirsh v. State of Israel, 962 F.Supp. 377 (S.D.N.Y. 1997).

201 The theory has received considerable support among American scholars. See Bederman, supra note 47, at 282; William, Pepper, Iraq’s Crimes of State Against Individuals, and Sovereign Immunity, 18 Brook .J. Int’l L. 313 (1992)Google Scholar; Mathias, Reimann, A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany, 16 Mich. J. Int’l L. 403 (1995)Google Scholar; see also Kenneth, Randall, Federal Courts and the International Human Rights Paradigm (1990)Google Scholar Jordan J., Paust, Federal Jurisdiction over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of International Law Under the FSIA and the Act of State Doctrine, 23 Va.J. Int’l L. 191 (1983)Google Scholar. A number of student–written notes have also supported the theory. See, e.g., Joseph G., Bergen, Note, Princz v. The Federal Republic of Germany: Why the Courts Should Find That Violating Jus Cogens Norms Constitutes an Implied Waiver of Sovereign Immunity, 14 Conn.J. Int’l L. 169 (1999)Google Scholar; Thora A., Johnson, Note, A Violation of Jus Cogens Norms as an Implicit Waiver of Immunity Under the Federal Sovereign Immunities Act, 19 Md. J. Int’l L. & Trade 259 (1995)Google Scholar; Scott A, Richman, Comment, Siderman de Blake v. Republic of Argentina: Can the FSIA Grant Immunity for Viohtions of JusCogerisNorms? 19 Brook .J. Int’l L. 967 (1993)Google Scholar.

202 This heading is not meant to imply that no consideration of the relationship between human rights and foreign state immunity has occurred outside the United States and Europe. See, e.g., Garnett, supra note 24, at 121 (stating that it is “unlikely that an Australian court would be prepared to recognise an implied exception to immunity for jus cogens violations in the Australian [State Immunity] Act”); Niranjini, Vivekananthan, The Doctrine of State Immunity & Human Rights Violations of Foreign States, 8 Sri Lanka J. Int’l L. 125 (1996)Google Scholar (supporting the normative hierarchy theory).

203 The United Kingdom is excluded from this category merely because its experience with the normative hierarchy theory is similar to that of the United States. Indeed, in the area of foreign state immunity law, the United Kingdom and the United States have traveled along a similar path. See generally Clark C., Siewert, Note, Reciprocal Influence of British and United States Law: Foreign Sovereign Immunity Law from The Schooner Exchange to the State Immunity Act of 1978, 13 Vand. J. Transnat’l L. 761 (1980)Google Scholar. As with the U.S. approach to the theory, UK courts have restrictively interpreted the exceptions to immunity in the State Immunity Act so as to stymie its application to human rights cases. See Al–Adsani v. Kuwait, 103 ILR 420 (Q.B. 1995), aff d, 107 ILR 536 (C.A. 1996). However, the normative hierarchy theory has found some support. Id. at 547 (Ward, J., concurring) (interpreting the Act narrowly but recognizing that the theory “is a powerful one”). The dissent in Al–Adsani before the European Court of Human Rights also supported the theory. ECHR Judgment, supra note 1, at 29 (Rozakis, Caflisch, Wildhaber, Costa, Cabral Barreto, & Vajiċ, JJ., dissenting).

204 Cassese, supra note 151, at 145.

206 Id.

206 Bianchi, supra note 172, at 219. The European literature is replete with additional support for the normative hierarchy theory. See, e.g., Magdalini, Karagiannakis, State Immunity and Fundamental Human Rights, 11 Leiden J. Int’l L. 9 (1998)Google Scholar; Juliane, Kokott, Miβbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstöβen,in Recht Zwischen Umbruch und Bewahrung: Völkerrecht—Europarecht—Staatsrecht, Festschrift Fur Rudolf Bernhardt 135 (1995)Google Scholar; Norman, Paech, Wehrmachtsverbrechen in Griechenland, 32 Kritische Justiz 380 (1999)Google Scholar.

207 See text at notes 151–59 supra.

208 Bianchi, supra note 172, at 220; see also Andrea, Bianchi, Overcoming the Hurdle of State Immunity in the Domestic Enforcement of International Human Rights, in Enforcing International Human Rights in Domestic Courts 405 (Benedetto, Conforti & Francesco, Francioni eds., 1997)Google Scholar.

209 Bianchi, supra note 172, at 222.

210 Prefecture of Voiotia v. Federal Republic of Germany, No. 137/1997 (Ct. 1st Inst. Leivadia, Oct. 30, 1997), translated in Maria, Gavouneli, War Reparation Claims and State Immunity, 50 Revue Hellénique De Droit International 595 (1997)Google Scholar [hereinafter Greek Judgment I]. For an English summary of the decision, see Ilias, Bantekas, Case Report: Prefecture of Voiotia v. Federal Republic of Germany, 92 AJIL 765 (1998)Google Scholar.

211 Greek Judgment 1, supra note 210, at 599.

212 Id.

213 Regulations Respecting the Laws and Customs of War on Land, Art. 43, annexed to Hague Convention [No. IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Regulations].

214 Greek Judgment I, supra note 210, at 599–600.

213 Ralph, Atkins & Gerrit, Wiesmann, (Week Reparations Move Angers Berlin, Fin. Times (London), July 12, 2000, World News—Europe, at 10 Google Scholar.

216 Greek Judgment II, supra note. 15. For an English summary and commentary on the case, see Maria, Gavouneli & Ilias, Bantekas, Case Report: Prefecture of Voiotia v. Federal Republic of Germany, 95 AJIL 198 (2001)Google Scholar. For an analytical discussion of the case, see Bernhard, Kempen, Der Fall Distomo: Griechische Reparationsforderungen gegen die Bundesrepublik Deutschland, in Tradition Und Weltoffenheit des Rechts: Festschrift Für Helmut Steinberger 179 (Hans, Joachim–Cremer et al. eds., 2002)Google Scholar.

217 The Court cited the European Convention on State Immunity, supra note 26, the ILC’s draft articles on state immunity, supra note 111, and the work of the Institut de Droit International, supra note 113, as well as U.S. case law.

218 Greek Judgment II, supra note 15, at 7.

219 Id. The Court cited paragraph 4 of the commentary on Article 12 in the ILC’s draft articles on the jurisdictional immunities of states, supra note 111, which limits the scope of that provision to “intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination”; Article 31 of the European Convention, supra note 26, which provides: “Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State”; and Article 16(2) of the UK State Immunity Act, 1978, supra note 3, which states: “This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952.”

220 Greek Judgment II, supra note 15, at 10.

221 Id. at 14–15.

222 Id. at 15.

223 Id.

224 Pursuant to Article 28 (1) of the Greek Constitution, a generally accepted rule of international law constitutes an integral part of the Greek legal order, which may even supersede a contrary statutory provision. For a discussion of the status of international law under Greek law, see Fatouros, A. A., International Law in the New Greek Constitution, 70 AJIL 492, 501 (1976)Google Scholar; Emmanuel, Roucounas, Grèce, in L’Intégration Du Droit International Et Communautaire Dans L’Ordre Juridique National 287 (Pierre, Michel Eisemann ed„ 1996)Google Scholar.

225 As Judge Wald stated:

Princz v. Federal Republic of Germany, 26 F.3d 1166, 1182 (D.C. Cir. 1994) (Wald, J., dissenting) (quoting Mary, Ellen Turpel & Philippe, Sands, Peremptory International Law and Sovereignty: Some Questions, 3 Conn.J. Int’l L. 364, 365 (1988)Google Scholar).

226 See text at notes 28–116 supra.

227 See, for example, the statement of the authors of Implied Waiver Under the FSIA in the text at note 184 supra; judge Wald’s dissent in Princz, 26 F.3d at 1181, maintaining that state immunity “hinges on the notion that a state’s consent to suit is a necessary prerequisite to another state’s exercise of jurisdiction.” See also Greek Judgment II, supra note 15, at 3 (stating that state immunity is “a consequence of the sovereignty, independence, and equality of states and purports to avoid any interference with international affairs”).

228 See text at notes 74–104, 121–40 supra.

229 Fox, supra note 15, at 525.

230 Those who find a conflict between these norms have overlooked the fact that state immunity protection for human rights violations is not a product of international law.

231 Akehurst, supra note 6, at 209.

232 Fox, supra note 15, at 1.

233 The existence of jus cogens in international law is a highly contentious matter. See the presentation of opposing views on the topic in Colloquy, 6 Conn. J. Int’L L. 359, 359–69 (1988)Google Scholar. To simplify matters, this article assumes the existence of jus cogens. It also assumes that jus cogens is effective outside the field of international treaty making, where the modern manifestation of the concept emerged. This, too, is a controversial assumption. Compare Christos L., Rosenstein–Rozakis, The Peremptory Norms of General International Law (Jus Cogens) Under The Vienna Convention on the Law of Treaties 15 (1973)Google Scholar, with Oppenheim, supra note 6, at 8, and Andreas, Zimmermann, Sovereign Immunity and Violations of International Jus Cogens—Some Critical Remarks, 16 Mich.J. Int’l L. 433, 437–40 (1995)Google Scholar. Note that the legitimacy of such assumptions has no bearing on the central thesis of this article, which does not hinge on the existence or nonexistence of jus cogens, but on the fact that state immunity protections for human rights violations are rooted in neither fundamental principles of international law nor international custom.

234 See Brownlie (5th), supra note 6, at 516–17; Oppenheim, supra note 6, at 7.

235 See Anthony, D’ Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens! 6 Conn. J. Int’l L. 1, 1 (1990)Google Scholar (noting facetiously that “the sheer ephemerality of jus cogens is an asset, enabling any writer to christen any ordinary norm of his or her choice as a new jus cogens norm, thereby in one stroke investing it with magical power”); Karagiannakis, supra note 206, at 15–16 (ascribing immunity–piercing characteristics to the general category of “fundamental human rights”).

236 Filartiga v. Pena–Irala, 630 F.2d 876 (2d Cir. 1980), held that state–sanctioned torture violates jus cogens.

237 The body of literature considering the subject is rich. See, e.g., Antonio, Gómez Robledo, Le Jus cogens international: Sa genèse, sa nature, ses fonctions, 172 Recueil Des Cours 9–217 (1981 III)Google Scholar; Levan A., Alexidze, Legal Nature of Jus Cogens in Contemporary International Law , id. at 219–70 Google Scholar; Giorgio, Gaja, Jus Cogens Beyond the Vienna Convention, id. at 279–89 Google Scholar; Gordon, Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, 28 Va. J. Int’l L. 585 (1988)Google Scholar.

238 Greek Judgment I, supra note 210, at 599; Greek Judgment 11, supra note 15, at 15.

239 See, e.g., William J., Aceves, The Vienna Convention on Consular Relations, 31 Vand.J. Transnat’ L L. 257, 293 (1998)Google Scholar. The American Law Institute maintains that” [i]t is generally accepted that the principles of the United Nations Charter prohibiting the use of force . . . have the character of jus cogens.” Restatement, supra note 28, §102 cmt. k. Professor Tunkin has even suggested that the Brezhnev doctrine, or “proletarian internationalism,” as he describes it, is a jus cogens norm. Grigory, Tunkin, Theory of International Law 444 (1974)Google Scholar.

240 One may wish to criticize the normative hierarchy theory by capitalizing on this uncertainty, arguing that many human rights norms are not jus cogens and thus that the theory is unfounded. Such criticism is fruitless, however, as it simply provokes the equally sound and unprovable response that human rights norms are indeed peremptory in nature. For that reason, this article avoids challenging the normative hierarchy theory on these grounds.

241 Reimann, supra note 201, at 421.

242 For example, within the span of one case of interest, Prefecture of Voiotia, the Greek courts determined (without significant support) that Articles 43 and 46 of the 1907 Hague Regulations, supra note 213, were jus cogens. Greek Judgment I, supra note 210, at 599; Greek Judgment II, supra note 15, at 15.

243 This risk is perhaps most problematic in countries whose national legislatures have enacted immunity legislation. In this situation, application of the normative hierarchy theory by the courts may thwart the intent of the legislature.

244 ECHR Judgment, supra note 1, at 27. Immunity from execution is a topic distinct from immunity from judicial proceedings. For instance, even if a court denies a foreign state immunity and holds it liable to the plaintiff in a quantified amount of damages, the law may still bar the forced execution of the court’s judgment against the foreign state’s property. For a more in–depth explanation of immunity from execution, see BADR, supra note 16, at 107–12; Sinclair, supra note 68, at 218–42.

245 Professor Scheuner has proposed three categories of jus cogens norms: (1) “the maxims of international law which protect the foundations of law, peace and humanity in the international order and which at present are considered by nations as the minimum standard for their mutual relations”; (2) “the rules of peaceful cooperation in the sphere of international law which protect fundamental common interests”; and (3) “norms regard[ing] the protection of humanity, especially of the most essential human rights.” Ulrich, Scheuner, Conflict of Treaty Provisions with a Peremptory Norm of General International Law, and Its Consequences, 27 Zeitschrift Für Ausländisches Öffentliches Recht Und Völkerrecht 520, 526–27 (1967)Google Scholar. Thus, it appears conceptually feasible that the principle of state jurisdiction, which arguably falls under one of the first two categories, could be jus cogens just like certain human rights norms, which fall under category three. See also Alexidze, supra note 237, at 260 (identifying “non–interference with domestic affairs” as jus cogens).

246 Shaw, quoted in note 40 supra, at 331 (further noting that “the principle whereby a state is deemed to exercise exclusive power over its territory can be regarded as a fundamental axiom of classical international law”).

247 Id. at 332.

248 See, e.g., Hersch, Lauterpacht, International Law and Human Rights (1950)Google Scholar; Richard A., Falk, A New Paradigm for International Legal Studies: Prospects and Proposals, 84 Yale L.J. 969 (1975)Google Scholar.

249 In this regard, Justice Marshall’s age–old words in The Schooner Exchange still ring true: Jurisdiction is exclusive and absolute; any exceptions to the jurisdiction of a state must be based on its consent. See text at note 72 supra. Also, as editors Jennings and Watts admonish, limitations on state jurisdiction may not be presumed. Oppenheim, supra note 6, at 391.

250 When jus cogens norms clash, it “raises questions—to which no firm answer can be given—of the relationship between rules of jus cogens, and of the legitimacy of an act done in reliance on one rule of jus cogens but resulting in a violation of another such rule.” Oppenheim, supra note 6, at 8. “If a state uses force to implement the principle of self–determination, is it possible to assume that one aspect of jus cogens is more significant than another?” Brownlie (5th), supra note 6, at 517.

251 The concept of “waiver” emerged from American experience. Some have argued that a state’s violation of jus cogens implicates § 1605 (a) (1) of the FSIA, the so–called waiver exception, under which a foreign state implicitly waives its entitlement to immunity. See, e.g., Belsky et al., supra note 181, at 394–401. U.S. courts have consistently rejected this argument, refusing to interpret the waiver exception so broadly. In Princz v. Federal Republic of Germany, for example, the court held that the “jus cogens theory of implied waiver is incompatible with the intentionality requirement implicit in § 1605 (a) (1).” The court went on to say that this requirement is “reflected in the examples of implied waiver set forth in the legislative history of §1605 (a) (1), all of which arise either from the foreign state’s agreement (to arbitration or to a particular choice of law) or from its filing a responsive pleading without raising the defense of sovereign immunity.” 26 F.3d 1166, 1174 (D.C. Cir. 1994); see also Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1150–51 (7th Cir. 2001); Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 244 (2d Cir. 1996). Indeed, the legislative history of the FSIA contemplates only a few types of implicit waivers: “where a foreign state has agreed to arbitration in another country or where a foreign state has agreed that the law of a particular country should govern a contract.... [or] where a foreign state has filed a responsive pleading in an action without raising the defense of sovereign immunity.” House Report, supra note 107, at 18. The American Bar Association has recently recommended amending the FSIA “to limit circumstances under which waivers may be implied.” Working Group of the American Bar Association, Report, Reforming the Foreign Sovereign Immunities Act, 40 Colum.J. Transnat’l L. 489, 546 (2002)Google Scholar. The idea of “forfeiture” of immunity by a foreign state is a European creation, developed outside the statutory context, which some have argued operates as part of the general principles of international law. See, e.g., Kokott, supra note 206.

252 For example, in Prefecture of Voiotia, the court of first instance held that state acts in breach of jus cogens could not qualify as sovereign acts because the state would not be considered as acting within its capacity as sovereign. .See b) in text at note 214 supra; see also Paech, supra note 206, at 394; Belsky et al., supra note 181, at 377.

253 Smith, 101 F.3d at 242.

254 Id. at 244.

255 See 15 James Wm., Moore et al., Moore’s Federal Practice ¶104.12[1] [a] (3d ed. 2003)Google Scholar (“Courts will rarely find that a nation has waived its sovereign immunity without strong evidence that waiver was what the state intended.”).

256 Brierly, supra note 75, at 250; see also Lauterpacht, supra note 27, at 224.

257 Fitzmaurice, G. G., State Immunity from Proceedings in Foreign Courts, 1933 Brit.Y.B. Int’l L. 101, 121 Google Scholar; see also Lauterpacht, supra note 27, at 224.

258 See, for example, point d) in the court of first instance’s opinion in Prefecture of Voiotia, in text at note 214 supra. See also Paust, supra note 201, at 227; Vivekananthan, supra note 202, at 147.

259 A state is internationally responsible under Article 16 when it aids or assists another state in committing, or under Article 17, when it directs and controls another state in committing, an internationally wrongful act if “(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”

Under Article 18, “A State which coerces another State to commit an act is internationally responsible for that act if: (a) the act would, but for the coercion, be an internationally wrongful act of the coerced State: and (b) the coercing State does so with knowledge of the circumstances of the act.” Draft Articles on Responsibility of States for Internationally Wrongful Acts, Arts. 16–18, in Report of the International Law Commission on the Work of Its Fifty–third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>, reprinted in Crawford, infra note 261.

260 See supra note 258.

261 For examples of the application of Articles 16, 17, and 18, see James, Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 148–58 (2002)Google Scholar.

262 Draft Articles 42 and 48 permit a state to invoke another state’s responsibility for injury either to one of the forum state’s citizens or, arguably, to a foreign state’s citizens.

263 However, the European Convention, supra note 26, requires a small group of states to provide immunity protections as a matter of international obligation.

264 The Schooner Exchange, 11 U.S. at 137.

265 Id at 136.

266 Arrest Warrant, supra note 23, paras. 52, 54.

267 Fox, supra note 15, at 1.

268 The exact parameters of beneficial interstate conduct are variable and likely to depend on the immunity policies of each individual state. One can safely argue, however, that the protection of the forum state’s “vital interests” is a universal common denominator in application of the state immunity agreement. Professor Lauterpacht, while similarly believing that the immunity of foreign states may be greatly curtailed, followed a different approach. He contended that immunity should be maintained in respect of four areas: (1) the legislative acts of foreign states; (2) the executive and administrative acts of the foreign state within its territory; (3) certain contracts forged with foreign states; and (4) diplomatic immunities. Lauterpacht, supra note 27, at 237–39.

269 See Arrest Warrant, supra note 23, para. 46.

270 See discussion supra note 47.

271 UN Charter pmbl., Arts. 1, 2.

272 See text at notes 258–62 supra.

273 A recent example appears in Roederv. Iran, 195 F.Supp.2d 140 (D.D.C. 2002). There, the court held that executive agreements entered into by the United States and Iran, known as the “Algiers Accords,” barred the FSIA claims of former hostages detained at the U.S. Embassy in Tehran. Indeed, some scholars maintain that conflicts between human rights and state immunity may be best resolved “through the ratification of human rights conventions and the submission to international procedures of supervision such as those provided by the UN Covenants.” Schreuer, supra note 114, at 60.

274 28 U.S.C. §1605(a) (7) (2000).

275 As noted, the amendment covers even “the provision of material support or resources” for the proscribed conduct, which could occur in the foreign state defendant’s own territory. Id.

276 Brief for the United States as Amicus Curiae at 27–28, Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996) (Nos. 95–7931, 95–7942). The brief states:

Id. (citation omitted).

277 However, the law may raise some concerns in cases in which the claimant was a U.S. national but the victim was not, e.g., a married couple of mixed nationality. In these cases, the competence of U.S. courts is predicated on an arguably weaker basis of jurisdiction.

278 For a criticism of the limited scope of the exception, see Naomi, Roht–Arriaza, The Foreign Sovereign Immunities Act and Human Rights Violations: One Step Forward, Two Steps Back? 16 Berkeley J. Int’l L. 71, 81–82 (1998)Google Scholar.

279 See text at notes 216—24 supra.

280 Greek Judgment II, supra note 15, at 7.

281 This aspect of the torts exception has developed primarily in the context of §1605 (a) (5) of the U.S. FSIA. That provision denies immunity to a foreign state “for personal injury or death . . . occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign stale while acting within the scope of his office or employment.” The torts exception does not apply, however, to claims based upon the exercise of or failure to exercise a discretionary function. 28 U.S.C. §1605(a)(5)(A). In two cases already discussed, U.S. courts found that violations committed by foreign government agents in U.S. territory were outside the application of the discretionary function exception and thus denied the defense of immunity. See Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989) (the commission of murder by foreign government agents in violation of foreign law did not trigger the discretionary function exemption); Letelier v. Republic of Chile, 488 F.Supp. 665, 673 (D.D.C. 1980) (the assassination committed in the United States by Chilean government agents was not covered by the discretionary function exemption). For further discussion, see Schreuer, supra note 114, at 57–61; Trooboff, supra note 18, at 357–62.

282 Greek Judgment II, supra note 15, at 10.

283 Id.

284 Id.

285 Id. at 14–15.

286 Still, Prefecture of Voiotia is susceptible to some criticism. First, the Greek government arguably failed to provide adequate notice to the Federal Republic of Germany of the change in Greek state immunity policy. This fault is in large measure a function of Greece’s lack of national immunity legislation. Absent an effective means of communication, i.e., through the promulgation of public laws, the affected state or states learns of modifications in slate policy only at the moment the policy–changing judicial decision is rendered. Without fair warning, Prefecture of Voiotia came as a shock to the German government, evoking strong diplomatic protestation. See Atkins & Wiesmann, supra note 215. Recent efforts to enforce the Greek Judgment in Germany were denied. The Distomo Massacre Case (Greek Citizens v. FRG) (Fed. Sup. Ct June 26, 2003), translated in 42 ILM 1030 (2003). Second, Voiotia failed to place limits on the retroactivity of the new immunity rule. Indeed, the claims at issue arose out of wartime events occurring in 1944, more than fifty years before the suit was filed. The adjudication of claims of this nature, especially those possibly addressed previously by postwar reparations treaties, is likely to cause instability in bilateral relations. Indeed, following World War II, the German government paid the Greek government DM 115 million in compensation for victims of Nazi persecution.