No. 97-3555

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Jacob SAMPSON

Plaintiff-Appellant,

v\.

FEDERAL REPUBLIC OF GERMANY and

CLAIMS CONFERENCE ARTICLE 2 FUND

Defendants-Appellees.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

BRIEF FOR AMICUS CURIAE THE UNITED STATES OF AMERICA

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

ON APPEAL FROM A FINAL JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS, THE HONORABLE ANN CLAIRE WILLIAMS, JUDGE

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

LINDA JACOBSON DAVID W. OGDEN

[Assistant Legal Adviser]{.underline} [Assistant Attorney
General]{.underline}

WYNN M. TEEL SCOTT R. LASSAR

[Attorney-Adviser]{.underline} [United States Attorney]{.underline}

OFFICE OF LEGAL ADVISER FOR MARK B. STERN

DIPLOMATIC LAW AND LITIGATION ( 202) 514-5089

[U.S. Department of State]{.underline} DOUGLAS HALLWARD-DRIEMEIER

[Washington, D.C. 20520]{.underline} (202) 514-5735

[Attorneys, Appellate Staff]{.underline}

[Civil Division, Room 9113]{.underline}

[Department of Justice]{.underline}

[Washington, D.C. 20530-0001]{.underline}

> Attorneys for Amicus Curiae

the United States of America

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 97-3555

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Jacob SAMPSON

Plaintiff-Appellant,

v\.

FEDERAL REPUBLIC OF GERMANY and

CLAIMS CONFERENCE ARTICLE 2 FUND

Defendants-Appellees.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

BRIEF FOR AMICUS CURIAE THE UNITED STATES OF AMERICA

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

ON APPEAL FROM A FINAL JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS, THE HONORABLE ANN CLAIRE WILLIAMS, JUDGE

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**STATEMENT OF THE ISSUE PRESENTED FOR REVIEW**

Whether the Federal Republic of Germany is immune from a claim for
damages arising out of plaintiff-appellant\'s enslavement by the Nazi
regime during World War II.

**STATEMENT OF INTEREST OF THE UNITED STATES**

The United States has a continuing interest in questions concerning the
immunity from suit of foreign governments because of the foreign policy
implications arising therefrom. [See]{.underline} [Millen Industries,
Inc.]{.underline} v. [Coordination Counsel For North American
Affairs]{.underline}, 855 F.2d 879, 881 (D.C. Cir. 1988). The United
States has a particular interest in this case, which involves claims
against Germany for slave labor plaintiff was forced to perform during
World War II. As we explain more fully below, the United States has
recently entered into an executive agreement with the Federal Republic
of Germany, which expresses the countries\' support for a foundation
recently established under German law as the preferred forum for
resolving such claims. The United States further promises in that
agreement to take appropriate steps to oppose challenges to Germany\'s
sovereign immunity involving World-War II era claims.

**STATEMENT OF THE CASE**[^1]

**1.** Plaintiff [pro]{.underline} [se]{.underline} Jacob Sampson is a
Holocaust survivor. During World War II, Sampson was enslaved by the
Nazis in the concentration camp at Auschwitz, Poland, where the Nazis
killed sixty members of Sampson\'s family. [Sampson]{.underline} v.
[Federal Republic of Germany]{.underline}, 975 F. Supp. 1108, 1112-23
(N.D. Ill. 1997). Sampson sought compensation from Germany by filing a
claim in 1948 with a council established in Germany and, in the 1980\'s,
by filing claims with funds established by Germany in cooperation with
the Conference on Jewish Material Claims Against Germany, Inc. (the
\"Claims Conference\").[^2] [Id.]{.underline} at 1113. Sampson
ultimately received, in February 1996, a payment from the \"Article 2
Fund,\" established by Germany and the Claims Conference in 1990.
Sampson received a one-time payment of DM 5000 and also receives monthly
payments of DM 500. [Ibid.]{.underline} The Claims Conference
administers the fund according to terms established by Germany.
[Ibid.]{.underline}

**2.** In September 1996, Sampson brought suit in the Northern District
of Illinois against the Federal Republic of Germany and the Claims
Conference. As construed by the district court, Sampson\'s complaint
alleged claims based both on his enslavement by the Nazis and on actions
subsequent to the war by the Federal Republic of Germany and Claims
Conference, who are alleged to have conspired to deprive Sampson of full
compensation for his injuries. [Id.]{.underline} at 1113-14, 1118.
Sampson alleges that the defendants embezzled funds intended for
Holocaust victims, breached a covenant with him (reflected in agreements
between Germany and the Claims Conference), and discriminated against
him. [Id.]{.underline} at 1114.

The defendants moved to dismiss. Germany argued, [inter
alia]{.underline}, that it was immune from suit in United States courts
and that the act of state doctrine precluded a United States court from
judging the official acts of the German government. The Claims
Conference argued that Sampson had no right to payment by the Claims
Conference and thus lacked standing to sue it and that the act of state
doctrine precluded suit against the Claims Conference based upon acts of
the German government.

The district court granted the defendants\' motions. The court held that
the claims against Germany were barred both by the Foreign Sovereign
Immunities Act (\"FSIA\"), 28 U.S.C. §§ 1330, 1602-11, and by the act of
state doctrine. The court reasoned that Sampson\'s claims did not fall
within any of the exceptions to the FSIA\'s general grant of immunity to
foreign sovereigns, [Sampson]{.underline}, 975 F. Supp. at 1115-20, and
that Germany\'s violations of international law during World War II did
not imply a waiver of that immunity, [id.]{.underline} at 1123. The
court also held that, at least with respect to the creation and
administration of the compensation funds, the act of state doctrine
protected both defendants because the acts in question were the official
acts of Germany taken within its territory. [Id.]{.underline} at
1121-22.

On appeal, this Court appointed the dean of Marquette University Law
School as amicus curiae (\"Amicus\") to argue on Sampson\'s behalf.
Amicus does not challenge the district court\'s holdings with respect to
Germany and the Claims Conference\'s post-World War II conduct in
administering the compensation funds. (It would appear that these claims
are barred under this Court\'s reasoning in [Wolf]{.underline} v.
[Federal Republic of Germany]{.underline}, 95 F.3d 536 (7th Cir. 1996).)
Rather, Amicus makes a more limited argument that Nazi Germany\'s
violations of [jus]{.underline} [cogens]{.underline} -- fundamental
international norms of conduct -- during World War II constitute an
\"implied waiver\" of Germany\'s sovereign immunity. Amicus Br. at 9-17.
Amicus also argues that the Court should defer to an April 13, 1949,
Letter of Jack B. Tate, Acting Legal Advisor, Department of State (the
\"Bernstein letter\"), which stated that U.S. courts should be
\"relieve\[d\] \... from any constraint upon the exercise of their
jurisdiction to pass upon the validity of the acts of Nazi officials.\"
[Id.]{.underline} at 17-19 (quoting [Bernstein]{.underline} v. [N.V.
Nederlandsche-Amerikaansche Stoomvaart-Maatschappij]{.underline}, 210
F.2d 375, 376 (2d Cir. 1954)).

**3.** On July 17, 2000, subsequent to the completion of briefing by
Amicus and defendants, the governments of the United States and Germany
signed an \"Agreement between the Government of the United States of
America and the Government of the Federal Republic of Germany concerning
the Foundation \'Remembrance, Responsibility and the Future.\'\"
(\"Foundation Agreement\" or \"Agreement\") (Attachment A). The
Agreement came into force on October 19, 2000, upon the exchange of
notes between the United States and Germany. Attachment B.

This Agreement recognizes the creation, under German law, of the
Foundation \"Remembrance, Responsibility and the Future\"
(\"Foundation\") as an instrumentality of the German government and
German companies to make payments to those who suffered as slave or
forced laborers under the Nazis as well as to certain individuals who
suffered personal injury or property loss at the hands of German
companies. [See]{.underline} Foundation Agreement, Annex A ¶¶ 4, 6, 7.
The Foundation is to be funded with DM 10 billion, contributed in part
by the German government and in part by German corporations. In the
Foundation Agreement, the American and German governments recognize the
creation of the Foundation and \"agree that the Foundation \... covers,
and that it would be in their interests for the Foundation to be the
exclusive remedy and forum for the resolution of, all claims that have
been or may be asserted against German companies arising from the
National Socialist era and World War II.\" Foundation Agreement, Art.
1(1). The Foundation covers claims by prisoners, such as Sampson, forced
to perform slave labor at the Auschwitz concentration camp.

The Agreement does not itself purport to preclude private claims against
the German government. However, in the Agreement the United States
promises to \"take appropriate steps to oppose any challenge to the
sovereign immunity of the Federal Republic of Germany with respect to
any claim \... concerning the consequences of the National Socialist era
and World War II.\" Art. 3(4).

**SUMMARY OF ARGUMENT**

The horror of plaintiff\'s ordeal can scarcely be stated. Nevertheless,
the issue of law before the court is clear: as a matter of law, the
Federal Republic of Germany is not amenable to suit on plaintiff\'s
claims in the courts of the United States. Because the Federal Republic
of Germany\'s immunity is a jurisdictional bar to suit, the United
States does not address the other issues raised in the Brief of Amicus
Curiae.

A preliminary question in this case is whether Germany\'s assertion of
immunity should be analyzed under the provisions of the FSIA or the more
absolute theory of foreign governmental immunity that prevailed in the
1940\'s when Sampson\'s claims arose. Although the parties have cast
their arguments principally in terms of the FSIA, the United States has
previously argued and two courts of appeals have held that the FSIA does
not apply to conduct that took place during the period when the United
States adhered to the absolute theory of sovereign immunity.

The Court need not resolve the question of the FSIA\'s retroactive
application in this case. Whether Germany\'s assertion of immunity is
assessed under the FSIA or the law existing at the time of the conduct
complained of, Germany\'s assertion of immunity must be upheld.[^3]

Prior to 1952, foreign states enjoyed virtually \"absolute\" immunity
from suit absent their consent. The courts looked to the views of the
Executive Branch, which supported immunity in almost all cases. Under
these principles, Germany would be entitled to immunity. Amicus has not
identified any authority that suggests a U.S. court applying pre-1952
law would have exercised jurisdiction over plaintiff\'s claims.
Moreover, the policy of the Executive Branch, reflected in the
Foundation Agreement, is to oppose challenges to Germany\'s immunity for
claims arising out of the World War II era. Thus, to the extent pre-1952
law governs, Germany is entitled to immunity in U.S. courts from
Sampson\'s claims.

Assuming, on the other hand, that the FSIA governs the Court\'s inquiry,
Germany would not be amenable to suit under its provisions either.
Contrary to the arguments of Amicus, violations of [jus]{.underline}
[cogens]{.underline}, fundamental norms of international law, do not
constitute an implicit \"waiver\" of immunity from suit in U.S. courts.
Nothing in the language of the FSIA creates an exception to immunity for
violations of international law generally or [jus]{.underline}
[cogens]{.underline} in particular, and there is no suggestion in the
legislative history that would support such a broad reading of the
implied waiver exception. The courts of appeals have ruled unanimously
that the implied waiver provision must be narrowly construed, and there
is no warrant for departing from this well-settled construction.

Moreover, Amicus\'s arguments are flawed as a matter of both logic and
policy. Amicus assumes that violations of certain substantive norms,
[jus]{.underline} [cogens]{.underline}, require a particular procedural
remedy. This assumption has no support in international law. In
addition, as a matter of policy, Amicus\'s expansive interpretation of
the implied waiver provision should be rejected because it would require
the courts to identify [jus]{.underline} [cogens]{.underline} principles
and new exceptions to immunity before they have been recognized by the
political branches, which are more appropriately entrusted with
assessing the impact of such changes on the conduct of the nation\'s
foreign affairs.

**ARGUMENT**

**THE FEDERAL REPUBLIC OF GERMANY IS IMMUNE FROM THE**

**JURISDICTION OF THE UNITED STATES COURTS IN THIS CASE.**

**A. [Background Of U.S. Sovereign Immunity Practice.]{.underline}**

Some background into the United States\' practice concerning foreign
sovereign immunity is useful to the analysis of this case. The United
States has approached the question of foreign sovereign immunity in
three distinct periods. In the first period (from about 1812 to 1952),
the United States granted foreign sovereigns virtually \"absolute\"
immunity from suit in United States courts. [See]{.underline} [Verlinden
B.V.]{.underline} v. [Central Bank of Nigeria]{.underline}, 461 U.S.
480, 486 (1983) (citing [The Schooner Exchange]{.underline} v.
[M\'Fadden]{.underline}, 11 U.S. (7 Cranch) 116, 136-37 (1812)). During
this first period of sovereign immunity law, the courts deferred to the
views of the Executive Branch on whether to exercise jurisdiction, and
the State Department \"ordinarily requested immunity in all actions
against friendly foreign sovereigns.\" [Id.]{.underline} at 486.

In 1952, United States practice concerning foreign sovereign immunity
entered a second phase when the Executive Branch formally adopted the
\"restrictive\" theory of immunity in the \"Tate letter.\"
[See]{.underline} [Alfred Dunhill of London, Inc.]{.underline} v.
[Cuba]{.underline}, 425 U.S. 682, 711-15 (1976) (copy of the \"Tate
letter\"). In that letter, the State Department announced that
henceforth it would recommend to United States courts, as a matter of
policy, that foreign states be granted immunity only for their sovereign
or public acts ([jure imperii]{.underline}), and not for their
commercial acts ([jure]{.underline} [gestionis]{.underline}).
[See]{.underline} [Verlinden B.V.]{.underline}, 461 U.S. at 486-87. As
explained in the Tate letter, the adoption of the restrictive theory
reflected the increasing acceptance of that theory by foreign states, as
well as the need for a judicial forum to resolve disputes stemming from
the \"widespread and increasing practice on the part of governments of
engaging in commercial activities.\" [Alfred Dunhill of
London]{.underline}, 425 U.S. at 714.

Foreign sovereign immunity practice entered its third (and current)
phase when Congress enacted the FSIA, which became effective in January,
1977. Pub. L. No. 94-583, 90 Stat. 2891 (1976) [codified at]{.underline}
28 U.S.C. §§ 1330, 1602, [et]{.underline} [seq.]{.underline} The FSIA,
\"\[f\]or the most part, codifies, as a matter of federal law, the
restrictive theory of sovereign immunity.\" [Verlinden
B.V.]{.underline}, 461 U.S. at 488. It contains a \"comprehensive set of
legal standards governing claims of immunity in every civil action
against a foreign state or its political subdivisions, agencies, or
instrumentalities,\" [Ibid.]{.underline} The FSIA sets forth a general
rule of foreign state immunity, 28 U.S.C. § 1604, and provides for
specific exceptions to that immunity rule, [id.]{.underline} §§ 1605-07.
If the FSIA applies, it controls, since the Supreme Court has made
unequivocally clear that the FSIA \"\'provides the sole basis for
obtaining jurisdiction over a foreign state in the courts of this
country.\'\" [Saudi Arabia]{.underline} v. [Nelson]{.underline}, 507
U.S. 349, 355 (1993) (quoting [Argentine Republic]{.underline} v.
[Amerada Hess Shipping Corp.]{.underline}, 488 U.S. 428 (1989)).

**B. Under The Law Applicable At The Time Of The Challenged [Conduct,
Germany Is Entitled To Immunity From Suit. ]{.underline}**

The conduct at issue in this appeal occurred between 1939 and 1945.
Under the principles of sovereign immunity then in force, Germany is
entitled to immunity from suit.

Although Amicus\'s arguments address the provisions of the FSIA, the
FSIA was not enacted until 1976. Pub. L. No. 94-583, 90 Stat. 2891
(1976). Therefore, there is an antecedent question whether the FSIA
applies \"retroactively\" to govern a foreign state\'s claim of immunity
concerning conduct occurring prior to its date of enactment.

The United States has previously argued and two courts of appeals have
held that the FSIA does not apply to conduct preceding the adoption of
the restrictive theory of immunity. [See]{.underline} [Carl Marks & Co.,
Inc.]{.underline} v. [Union of Soviet Socialist Republics]{.underline},
841 F.2d 26, 27 (2d Cir.); [Jackson]{.underline} v. [People\'s Republic
of China]{.underline}, 794 F.2d 1490, 1497-98 (11th Cir. 1986). [But
cf.]{.underline} [Princz]{.underline} v. [Federal Republic of
Germany]{.underline}, 26 F.3d 1166, 1170-71 (D.C. Cir. 1994)
(questioning, without deciding, whether application of FSIA to pre-1952
conduct would be impermissibly retroactive).[^4] Both the Second and
Eleventh Circuits concluded that the FSIA affects the \"substantive
rights and liabilities\" of foreign states by authorizing suits against
foreign states that could not have been brought earlier.
[See]{.underline} [Jackson]{.underline}, 794 F.2d at 1497-98 (\"to give
the Act retrospective application to pre-1952 events would interfere
with antecedent rights of other sovereigns\"); [Carl Marks]{.underline},
841 F.2d at 27 (same). [See also]{.underline} H.R. Rep. No. 94-1487,
94th Cong. 2d Sess, at 33, [reprinted in]{.underline} 1976 U.S. Code
Cong. & Ad. News 6604, 6632 (noting that ninety-day delay in the FSIA\'s
effective date was \"necessary in order to give adequate notice of the
act and its detailed provisions to all foreign states\").

If, as the Second and Eleventh Circuits have concluded, this case is
governed by the principles of sovereign immunity that prevailed during
the 1940\'s, Germany is immune from suit. As explained above, prior to
1952, the government of the United States and the federal judiciary took
the position that \"foreign sovereigns and their public property are
\... not \... amenable to suit in our courts without their consent.\"
[Guaranty Trust Co.]{.underline} v. [United States]{.underline}, 304
U.S. 126, 134 (1938). [See also]{.underline} [Alfred Dunhill of
London]{.underline}, 425 U.S. at 712 (Tate Letter, noting that the
United States had previously followed the \"classical or virtually
absolute theory of sovereign immunity\"). Amicus does not argue that
under the absolute theory of sovereign immunity a foreign state would be
subject to suit in U.S. courts for claims such as plaintiff\'s.

Moreover, the foreign policy of the Executive Branch does not support
the exercise of jurisdiction over plaintiff\'s claims against Germany.
The Court is not, in this case, left to its own devices to surmise the
views of the Executive. [Cf.]{.underline} [Verlinden B.V.]{.underline},
461 U.S. at 487-88 (noting that, prior to the FSIA, courts were required
to discern the likely policy of the Executive Branch in cases in which
the State Department made no filing). In the Foundation Agreement, the
United States clearly stated that it would \"take appropriate steps to
oppose any challenge to the sovereign immunity of the Federal Republic
of Germany with respect to any claim \... concerning the consequences of
the National Socialist era and World War II.\" Art. 3(4). The United
States hereby affirmatively states, by way of this filing, that it
opposes the assertion of jurisdiction by United States courts over
claims against the Federal Republic of Germany concerning the
consequences of the National Socialist era and World War II.[^5]

For the foregoing reasons, under the absolute theory of sovereign
immunity that prevailed at the time of Germany\'s challenged conduct,
the district court lacked jurisdiction to hear plaintiff\'s claims
against the Federal Republic of Germany.

**C. Under The Applicable Provisions Of The FSIA, The German Government
Is Immune From Suit On Plaintiff\'s Claims In [United States Courts.
]{.underline}**

Assuming that the FSIA provides the proper basis for assessing the
district court\'s jurisdiction, the Federal Republic of Germany is
immune from this suit.

As explained above, the general rule of the FSIA is that \"a foreign
state shall be immune from the jurisdiction of the courts of the United
States.\" 28 U.S.C. § 1604. The FSIA also provides various exceptions to
that rule. 28 U.S.C. § 1605. Absent an exception, U.S. courts lack
jurisdiction over the suit. [Saudi Arabia]{.underline} v.
[Nelson]{.underline}, 507 U.S. at 355; [Amerada Hess]{.underline}, 488
U.S. at 443. Amicus relies upon the \"waiver\" exception, 28 U.S.C. §
1605(a)(1), arguing that the Nazi regime\'s violations of
[jus]{.underline} [cogens]{.underline} constituted a waiver by
implication of Germany\'s sovereign immunity. [See]{.underline} Amicus
Br. at 10-17. That argument has been rejected by each of the courts of
appeals that has considered it and should be rejected here as well.

1\. Neither The Language Nor The Legislative History of The FSIA
Supports An Expansive Construction Of The Implied [Waiver Exception To
The Statute.]{.underline}

The FSIA provides that

Subject to existing international agreements to which the United States
is a party at the time of enactment of this Act, a foreign state shall
be immune from the jurisdiction of the courts of the United States and
of the States except as provided in sections 1605 to 1607 of this
chapter.

28 U.S.C. 1604. The exceptions in sections 1605 through 1607 focus on
waiver, commercial activities, U.S. property rights, torts occurring in
the United States (subject to exceptions), arbitration, a limited class
of acts of international terrorism and certain maritime claims. There is
no general exception to immunity for violations of international law.
The exceptions to immunity in the FSIA are clear and specific,
suggesting that a theory of constructive waiver based on violation of
international law would be inconsistent with the intent of the statute
to recognize immunity except in certain limited and identifiable
situations.

The Supreme Court in [Amerada Hess]{.underline} adopted this narrow
construction of the exceptions to immunity. The Court observed that
\"Congress had violations of international law by foreign states in mind
when it enacted the FSIA,\" 488 U.S. at 435, citing in particular
section 1605(a)(3)\'s denial of immunity when property rights are taken
in violation of international law. The Court concluded that \"\[f\]rom
Congress\' decision to deny immunity to foreign states in the class of
cases just mentioned, we draw the plain implication that immunity is
granted in those involving alleged violations of international law that
do not come within one of the FSIA\'s exceptions.\" [Id.]{.underline} at
436.[^6] [See also]{.underline} [Saudi Arabia]{.underline} v.
[Nelson]{.underline}, 507 U.S. at 355.

The Supreme Court\'s narrow interpretation is further supported by a
subsequent amendment to the FSIA in which Congress abrogated foreign
states\' immunity for specific acts of international terrorism. In 1996,
Congress amended the FSIA to create an exception to sovereign immunity
for torture, extrajudicial killing, aircraft sabotage and hostage
taking, but limited the exception to suits brought by U.S. citizens
against foreign governments identified by the Executive Branch as state
sponsors of terrorism. Pub. L. No. 104-132, Title II, Subtitle B., §
221(a)(1), 110 Stat. 1214, 1241-42 (1996), adding 28 U.S.C. §
1605(a)(7).[^7] Like § 1605(a)(3)\'s limited removal of immunity for
violations of international law respecting [property]{.underline}
rights, § 1605(a)(7)\'s limited exception for [certain]{.underline} acts
of international terrorism counsels strongly against a broad
interpretation of § 1605(a)(1) under which all violations of
[jus]{.underline} [cogens]{.underline} are construed, [ipso]{.underline}
[facto]{.underline}, as implied waivers of immunity. [See]{.underline}
[Smith]{.underline} v. [Socialist People\'s Libyan Arab
Jamahiriya]{.underline}, 101 F.3d 239, 244 (2d Cir. 1997) (noting that §
1605(a)(7) is \"a carefully crafted provision that abolishes the defense
\[of sovereign immunity\] only in precisely defined circumstances\" and
that this is \"evidence that Congress is not necessarily averse to
permitting some violations of [jus]{.underline} [cogens]{.underline} to
be redressed through channels other than suits against foreign states in
United States courts\").

This Court and others have frequently observed that the implied waiver
provision of § 1605(a)(1) in particular must be construed narrowly.
[See]{.underline} [Frolova]{.underline} v. [Union of Soviet Socialist
Republics]{.underline}, 761 F.2d 370, 377 (7th Cir. 1985);
[Smith]{.underline} v. [Socialist People\'s Libyan Arab
Jamahiriya]{.underline}, 101 F.3d 239, 243 (2d Cir. 1997);
[Foremost-McKesson, Inc]{.underline}. v. [Islamic Republic of
Iran]{.underline}, 905 F.2d 438, 444 (D.C. Cir. 1990);
[Joseph]{.underline} v. [Office of the Consulate General of
Nigeria]{.underline}, 830 F.2d 1018, 1022 (9th Cir. 1987). In support of
this conclusion, the courts have cited the narrow list of examples given
by Congress in the legislative history of the implied waiver provision.
Congress specifically referred to three circumstances that would
constitute implied waivers -- \"where a foreign state has agreed to
arbitration in another country,\" \"where a foreign state has agreed
that the law of a particular country should govern a contract,\" and
\"where a foreign state has filed a responsive pleading without raising
the defense of sovereign immunity.\" H.R. Rep. No. 94-1487, 94th Cong.,
2d Sess. at 18, [reprinted in]{.underline} 1976 U.S.C.C.A.N. 6604, 6617.
Although these examples are not exclusive, \"courts have been reluctant
to stray beyond these examples when considering claims that a nation has
implicitly waived its defense of sovereign immunity.\"
[Frolova]{.underline}, 761 F.2d at 377; [Princz]{.underline} v. [Federal
Republic of Germany]{.underline}, 26 F.3d 1166, 1174 (D.C. Cir. 1994)
(quoting same).

More particularly, as this Court noted in [Frolova]{.underline}, the
examples listed by Congress reflect that an implied waiver should not be
found \"without strong evidence that this is what the foreign state
intended.\" 761 F.2d at 377. [See also]{.underline} [id.]{.underline} at
378 (\"waiver would not be found absent a [conscious
decision]{.underline} to take part in the litigation and a failure to
raise sovereign immunity despite the opportunity to do so\" (emphasis
added)); [Princz]{.underline}, 26 F.3d at 1174 (\"the amici\'s
[jus]{.underline} [cogens]{.underline} theory of implied waiver is
incompatible with the intentionality requirement implicit in §
1605(a)(1)\"); [Drexel Burnham Lambert]{.underline} v. [Committee of
Receivers for Galadari]{.underline}, 12 F.3d 317, 326 (2d Cir. 1993)
(waiver must be \"unmistakable\" and \"unambiguous\"). Amicus\'s
arguments in this case are inconsistent with the intentionality
requirement of the implied waiver provision. Indeed, Amicus does not
argue that a nation intentionally waives its immunity from suit when it
violates [jus]{.underline} [cogens]{.underline} principles. Rather,
Amicus argues that by engaging in such conduct a nation should be deemed
to have forfeited its right to assert sovereign immunity. Whatever the
attraction of that argument, Congress has not created such an exception.
Whereas Congress has declared that a foreign state forfeits its immunity
when it engages in certain classes of conduct,[^8] Congress has not
adopted a broad forfeiture of immunity for violations of
[jus]{.underline} [cogens]{.underline}. It is not the role of the courts
to do so.

In light of the above, it is not surprising that each of the three
courts of appeals that have addressed the relationship of
[jus]{.underline} [cogens]{.underline} to sovereign immunity has
rejected the idea that conduct by a sovereign nation in violation of
[jus]{.underline} [cogens]{.underline} norms constitutes an implied
waiver of immunity. [See]{.underline} [Smith]{.underline}, 101 F.3d at
242-45; [Princz]{.underline}, 26 F.3d at 1173-74; [Siderman de
Blake]{.underline} v. [Republic of Argentina]{.underline}, 965 F.2d 699,
718-19 (9th Cir. 1992). In each case, the court concluded that it is up
to the political branches, and not the judicial branch, to determine
that [jus]{.underline} [cogens]{.underline} violations should give rise
to exceptions to foreign sovereign immunity. [See]{.underline}
[Smith]{.underline}, 101 F.3d at 242; [Princz]{.underline}, 26 F.3d at
1174-1175, n.1; [Siderman]{.underline}, 965 F.2d at 719.[^9]

2\. The [Jus]{.underline} [Cogens]{.underline} Doctrine Does Not
Address, And Would Be A Highly [Uncertain Guide To, Resolving Sovereign
Immunity Issues.]{.underline}

The arguments advanced by Amicus are also flawed as a matter of both
logic and policy. As a matter of logic, Amicus conflates the substantive
norms of conduct and the methods by which violations of those norms
should be redressed. As a matter of policy, Amicus\'s argument would
require the courts to engage in the difficult and politically sensitive
task of determining what rules of conduct constitute \"[jus]{.underline}
[cogens]{.underline},\" a determination that is better left to the
branches of government assigned responsibility for conducting the
nation\'s foreign affairs.

Amicus argues, relying upon the dissenting opinion in
[Princz]{.underline}, that [jus]{.underline} [cogens]{.underline} norms
rank higher than other principles of international law including the
doctrine of sovereign immunity and that, in order to maintain
consistency with international law, the FSIA should be interpreted to
encompass violations of [jus]{.underline} [cogens]{.underline} among
those claims for which foreign states have implicitly waived their
immunity from suit in U.S. courts. [See]{.underline} Amicus Br. at
13-17; [Princz]{.underline}, 26 F.3d at 1183 (Wald, J., dissenting)
(\"the only way to reconcile the FSIA\'s presumption of foreign
sovereign immunity with international law is to interpret § 1605(a)(1)
of the Act as encompassing the principle that a foreign state implicitly
waives its right to sovereign immunity in United States courts by
violating [jus]{.underline} [cogens]{.underline} norms\"). Amicus
further argues that violations of [jus]{.underline} [cogens]{.underline}
are not sovereign acts and thus not entitled to immunity.
[See]{.underline} Amicus Br. at 17.

However well-intentioned, these arguments are based upon a conceptual
confusion between substantive and procedural principles of international
law. Although [jus]{.underline} [cogens]{.underline} principles, unlike
ordinary customary international law, are described as non-derogable
(both as a matter of state practice generally and in the formation of
treaties in particular), that description does not resolve how such
principles are to be enforced. Even if all states are bound to respect
[jus]{.underline} [cogens]{.underline} principles, they are not required
to open their domestic courts to private litigation to resolve alleged
[jus]{.underline} [cogens]{.underline} violations by other states.
[See]{.underline} Reimann, [A Human Rights Exception to Sovereign
Immunity: Some]{.underline} [Thoughts on Princz]{.underline}, 16 Mich.
J. Int\'l L. 403, 421 (1995).

We have found no support for the proposition that the international
consensus required to generate a principle of [jus]{.underline}
[cogens]{.underline} necessarily implies a similar consensus that local
judicial remedies for their violation are either appropriate or
mandatory. Indeed, given that, to our knowledge, no state has recognized
such an exception to sovereign immunity, plaintiffs\' theory requires
the untenable premise that there can be a principle of customary
international law that no state supports.

Characterizing violations of [jus]{.underline} [cogens]{.underline} as
\"non-sovereign\" acts similarly fails to resolve how [jus]{.underline}
[cogens]{.underline} principles are to be enforced. Even if a state
violates [jus]{.underline} [cogens]{.underline}, it is still clearly
acting as a sovereign state. The key question for purposes of this case
is whether the political branches in enacting the FSIA have chosen to
deny immunity for this particular category of activity by sovereign
states. To label that activity \"sovereign\" or \"non-sovereign\" for
purposes of sovereign immunity is to state a conclusion rather than to
provide the necessary analysis.

Indeed, there is an internal inconsistency in Amicus\'s argument. On the
one hand, Amicus argues that the courts may assert jurisdiction over
Sampson\'s claims because the challenged acts of the Nazi government
were not the sovereign acts of the German state. Yet, Sampson\'s attempt
to hold the present democratic government of the Federal Republic of
Germany liable for the wrongs of the Nazi regime rests on the theory
that the Federal Republic of Germany is the legal successor to the Nazi
regime as the sovereign authority in Germany. [See]{.underline} note 3
[supra]{.underline}. Plaintiff cannot have it both ways.

A further problem in Amicus\'s argument is that [jus]{.underline}
[cogens]{.underline} would provide a highly uncertain guide to
implementing the FSIA\'s implied waiver exception. While in some cases,
the political branches may affirmatively have recognized a principle as
[jus]{.underline} [cogens]{.underline}, that would not be true of every
case in which a [jus]{.underline} [cogens]{.underline} violation is
asserted. As stated in one of the leading treatises on international
law, [jus]{.underline} [cogens]{.underline} \"is a comparatively recent
development and there is no general agreement as to which rules have
this character.\" [See]{.underline} Oppenheim\'s International Law, ed.
by R. Jennings and A. Watts, 9th ed. (1992), p. 7.

After World War II (and, in part, as a result of the Nuremberg
proceedings), international law scholars began to develop a theory that
peremptory legal norms might be binding upon all states and in all
circumstances. In the view of these scholars, the key characteristic of
such norms was that treaty provisions authorizing violations of
[jus]{.underline} [cogens]{.underline} would therefore be considered
void. [See]{.underline} E. Schwelb, [Some Aspects of International Jus
Cogens As Formulated By The International Law Commission]{.underline},
61 Am. J. Int\'l L. 946, 949-963 (1967). This concept was accepted by
the U.N. International Law Commission in the development of what became
the Vienna Convention on the Law of Treaties.[^10] [See]{.underline}
Restatement (Third) of the Law of Foreign Relations (\"Restatement\"), §
331 (1987); Zimmermann, [Sovereign Immunity and Violations Of
International Jus Cogens \-- Some Critical Remarks]{.underline}, 16
Mich. J. Int\'l L. 433, 437-438 (1995). That text, however, does not
establish the content of [jus]{.underline} [cogens]{.underline}, which
remains highly uncertain. [See]{.underline} Restatement § 331, comment e
(doctrine of [jus]{.underline} [cogens]{.underline} is of such
\"uncertain scope\" that a \"domestic court should not on its own
authority refuse to give effect to an agreement on the ground that it
violates a peremptory norm\"). Moreover, neither the International Law
Commission nor the Vienna Convention suggests that [jus]{.underline}
[cogens]{.underline} has any bearing on principles of sovereign
immunity.

There is no practice in the United States or abroad clarifying the
precise content of [jus]{.underline} [cogens]{.underline}. Case law in
the United States discussing [jus]{.underline} [cogens]{.underline} is
sparse and inconsistent, and commentators frequently note that the
content of [jus]{.underline} [cogens]{.underline} is not agreed.
[See]{.underline} Restatement, § 102, Reporters Note 6.[^11] In many
cases, the political branches will not have pronounced on the issue
whether a certain principle has attained [jus]{.underline}
[cogens]{.underline} status. And, since no other country has adopted a
[jus]{.underline} [cogens]{.underline} exception to sovereign immunity,
there would be little if any international practice on which to rely. In
these circumstances it is particularly doubtful that Congress silently
intended the FSIA\'s implied waiver exception to incorporate violations
of [jus]{.underline} [cogens]{.underline}, with no legislative guidance
on how to apply that doctrine. The determination of what violations of
international law will subject a foreign state to the domestic courts of
the United States is a foreign policy question that must be reserved for
the political branches of government, to which the Constitution entrusts
the conduct of the nation\'s foreign affairs. [See]{.underline}
[Princz]{.underline}, 26 F.3d at 1174-75, n.1.[^12]

**CONCLUSION**

For the foregoing reasons, the judgment of the district court dismissing
the complaint should be affirmed.

Respectfully submitted,

LINDA JACOBSON DAVID W. OGDEN

[Assistant Legal Adviser]{.underline} [Assistant Attorney
General]{.underline}

WYNN M. TEEL SCOTT R. LASSAR

[Attorney-Adviser]{.underline} [United States Attorney]{.underline}

OFFICE OF LEGAL ADVISER FOR MARK B. STERN

DIPLOMATIC LAW AND LITIGATION (202) 514-5089

[U.S. Department of State]{.underline} DOUGLAS HALLWARD-DRIEMEIER

[Washington, D.C. 20520]{.underline} (202) 514-5735

[Attorneys, Appellate Staff]{.underline}

[Civil Division, Room 9113]{.underline}

[Department of Justice]{.underline}

[Washington, D.C. 20530-0001]{.underline}

> Attorneys for Amicus Curiae the United States of America

**CERTIFICATION OF COMPLIANCE WITH**

**FEDERAL RULE OF APPELLATE PROCEDURE 32(a)(7)(B)**

I hereby certify that this Brief complies with the type-face and volume
limitations set forth in Federal Rule of Appellate Procedure 32(a)(7)(B)
as follows: the type face is Courier New, monospaced, twelve-point font
(ten characters per inch), and the number of words in this Brief is
6284.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Douglas Hallward-Driemeier

**CERTIFICATION OF SERVICE**

I hereby certify that this 26th day of October, 2000, I dispatched via
first-class mail, postage pre-paid fifteen (15) paper copies and one
electronic copy of the Brief for Amicus Curiae the United States of
America to:

Mr. Gino J. Agnello

Clerk, United States Court of Appeals

for the Seventh Circuit

U.S. Courthouse and Federal Office Bldg., Room 2722

219 S. Dearborn St.

Chicago, IL 60604-1874

I hereby certify that I have this 26th day of October, 2000, served two
(2) true and correct paper copies and one (1) electronic copy of the
foregoing Brief for Amicus Curiae the United States of America via
Federal Express, next day delivery, and properly addressed to the
following:

Jacob Sampson Michael D. McCormick

6138 N. Clark Street Stein, Ray, & Conway

Chicago, IL 60660-2410 222 W. Adams, Suite 1800

Chicago, IL 60606

Peter Heidenberger Paul J. Cherner

Thomas G. Corcoran, Jr. Daniel A. Kaufman

Berliner, Corcoran & Rowe Sara L. Thomas

1101 Seventeenth Street, N.W. Michael Brest & Friedrich

Washington, D.C. 20036 77 West Wacker Drive, Suite 4300

Chicago, IL 60601

Howard B. Eisenberg

Joseph D. Kearney

Marquette University Law School

1103 West Wisconsin Ave.

Milwaukee, WI 53233

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Douglas
> Hallward-Driemeier

**TABLE OF CONTENTS**

[Page]{.underline}

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW 1

STATEMENT OF INTEREST OF THE UNITED STATES 1

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT 6

ARGUMENT 9

THE FEDERAL REPUBLIC OF GERMANY IS IMMUNE FROM THE\
JURISDICTION OF THE UNITED STATES COURTS IN THIS CASE 9

A. Background Of U.S. Sovereign Immunity Practice 9

> B. Under The Law Applicable At The Time Of The Challenged Conduct,
>
> Germany Is Entitled To Immunity From Suit 11
>
> C. Under The Applicable Provisions Of The FSIA, The German
>
> Government Is Immune From Suit On Plaintiff\'s Claims In United
>
> States Courts 14
>
> 1\. Neither The Language Nor The Legislative History of
>
> The FSIA Supports An Expansive Construction Of The
>
> Implied Waiver Exception To The Statute 15
>
> 2\. The Jus Cogens Doctrine Does Not Address, And Would
>
> Be A Highly Uncertain Guide To, Resolving Sovereign
>
> Immunity Issues 20

CONCLUSION 26

CERTIFICATION OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE
32(a)(7)(B) 27

CERTIFICATION OF SERVICE

**TABLE OF AUTHORITIES**

**Cases**: **[Page]{.underline}**

[Alfred Dunhill of London, Inc.]{.underline} v. [Cuba]{.underline}, 425
U.S. 682 (1976) 10, 13

[Argentine Republic]{.underline} v. [Amerada Hess Shipping
Corp.]{.underline}, 488 U.S. 428 (1989) 11, 14, 15

[Bernstein]{.underline} v. [N.V. Nederlandsche-Amerikaansche
Stoomvaart-Maatschappij]{.underline},

210 F.2d 375 (2d Cir. 1954) 5, 14

[Borja]{.underline} v. [Goodman]{.underline}, 1990 WL 291854, 1 N.M.I.
63 (N. Mariana Islands, 1990) 25

[Cabiri]{.underline} v. [Republic of Ghana]{.underline}, 165 F.3d 193
(2d Cir. 1999) 20

[Carl Marks & Co., Inc.]{.underline} v. [Union of Soviet Socialist
Republics]{.underline}, 841 F.2d 26

(2d Cir.) 11, 12

[Drexel Burnham Lambert]{.underline} v. [Committee of Receivers for
Galadari]{.underline}, 12 F.3d

317 (2d Cir. 1993) 19

[Foremost-McKesson, Inc.]{.underline} v. [Islamic Republic of
Iran]{.underline}, 905 F.2d 438 (D.C.

Cir. 1990) 17

[Frolova]{.underline} v. [Union of Soviet Socialist
Republics]{.underline}, 761 F.2d 370 (7th Cir. 1985) 17, 18

[Guaranty Trust Co.]{.underline} v. [United States]{.underline}, 304
U.S. 126 (1938) 7, 13

[Jackson]{.underline} v. [People\'s Republic of China]{.underline}, 794
F.2d 1490 (11th Cir. 1986) 11, 12

[Joseph]{.underline} v. [Office of the Consulate General of
Nigeria]{.underline}, 830 F.2d 1018 (9th Cir. 1987) 18

[Klock]{.underline} v. [Cain]{.underline}, 813 F. Supp. 1430 (C.D. Cal.
1993) 25

[Millen Industries, Inc]{.underline}. v. [Coordination Counsel For North
American Affairs]{.underline},

855 F.2d 879 (D.C. Cir. 1988) 1

[Princz]{.underline} v. [Federal Republic of Germany]{.underline}, 26
F.3d 1166 (D.C. Cir. 1994) 12, 18, 20, 21, 26

[Sablan]{.underline} v. [Iginoef]{.underline}, 1990 WL 291893, 1 N.M.I.
146 (N. Mariana Islands, 1990) 25

[Sablan]{.underline} v. [Superior Court of the Commonwealth of the
Northern Mariana Islands]{.underline},

1991 WL 258344, 2 N.M.I. 165 (N. Mariana Islands, 1991) 25

[Sampson]{.underline} v. [Federal Republic of Germany]{.underline}, 975
F. Supp. 1108 (N.D. Ill. 1997) 2, 4

[Saudi Arabia]{.underline} v. [Nelson]{.underline}, 507 U.S. 349 (1993)
11, 14-16

[Siderman de Blake]{.underline} v. [Republic of Argentina]{.underline},
965 F.2d 699 (9th Cir. 1992) 20

[Smith]{.underline} v. [Socialist People\'s Libyan Arab
Jamahiriya]{.underline}, 101 F.3d 239 (2d Cir. 1997) 17, 19, 20

[The Schooner Exchange]{.underline} v. [M\'Fadden]{.underline}, 11 U.S.
(7 Cranch) 116 (1812) 9

[Verlinden B.V.]{.underline} v. [Central Bank of Nigeria]{.underline},
461 U.S. 480 (1983) 9, 10, 13, 14

[Wolf]{.underline} v. [Federal Republic of Germany]{.underline}, 95 F.3d
536 (7th Cir. 1996) 4, 12

[Xuncax]{.underline} v. [Gramajo]{.underline}, 886 F. Supp. 162 (D.
Mass. 1995) 25

**Constitution:**

United States Constitution Art. I, § 8 16

**Statutes:**

Foreign Sovereign Immunities Act (\"FSIA\"), 28 U.S.C. §§ 1330, 1602-11
4, 10, 11

28 U.S.C. § 1604 11, 14, 16

28 U.S.C. § 1605 14

28 U.S.C. § 1605(a)(1) 15

28 U.S.C. § 1605(a)(2) 19

28 U.S.C. § 1605(a)(3) 16, 17

28 U.S.C. § 1605(a)(5) 19

28 U.S.C. § 1605(a)(7) 16, 17

28 U.S.C. § 1607 15

**Legislative Materials**:

142 Cong. Rec. 4570 ( March 13, 1996) 17

142 Cong. Rec. 4814 ( March 14, 1996) 17

H.R. Rep. No. 94-1487, 94th Cong. 2d Sess, [reprinted in]{.underline}
1976 U.S. Code Cong. &

Ad. News 6604 12, 18

**Miscellaneous:**

Oppenheim\'s International Law, ed. by R. Jennings and A. Watts, 9th ed.
(1992) 23

Reimann, [A Human Rights Exception to Sovereign Immunity:
Some]{.underline}

[Thoughts on Princz]{.underline}, 16 Mich. J. Int\'l L. 403 (1995) 22

Restatement (Third) of the Law of Foreign Relations (1987) 24, 25

E. Schwelb, [Some Aspects of International Jus Cogens As Formulated By
The]{.underline}

[International Law Commission]{.underline}, 61 Am. J. Int\'l L. 946
(1967) 24

Zimmermann, [Sovereign Immunity and Violations Of International Jus
Cogens]{.underline}

[\-- Some Critical Remarks]{.underline}, 16 Mich. J. Int\'l L. 433
(1995) 24

[^1]: ^?^ For purposes of this appeal, the United States accepts as true
    the facts as alleged by Plaintiff in his Complaint.

[^2]: ^?^ The Claims Conference is an international coalition of
    twenty-three Jewish nonprofit organizations that has, for more than
    forty years, worked with the Federal Republic of Germany to secure
    restitution for Jewish survivors of Nazi persecution.
    [See]{.underline} [Sampson]{.underline}, 975 F. Supp. at 1113. The
    Claims Conference is incorporated under New York law.
    [Ibid.]{.underline}

[^3]: ^?^ It bears note that the present democratic government of the
    Federal Republic of Germany, one of our chief European allies,
    cannot be compared to the Nazi regime. However, for purposes of this
    appeal, our immunity analysis assumes that the present German
    government could, if jurisdictional and other objections were
    overcome, be held liable for the wrongs of the Nazi government.
    [See]{.underline} [Guaranty Trust Co.]{.underline} v. [United
    States]{.underline}, 304 U.S. 126, 137 (1938) (\"the rights of a
    sovereign state are vested in the state rather than in any
    particular government which may purport to represent it\").

[^4]: ^?^ As Amicus acknowledges, Amicus Br. at 9 n.6, this Court\'s
    decision in [Wolf]{.underline} v. [Federal Republic of
    Germany]{.underline}, 95 F.3d 536 (7th Cir. 1996), did not address
    the question of the FSIA\'s retroactive application because, as
    described by the Court, the claims asserted in [Wolf]{.underline}
    concerned only conduct that post-dated 1952. [See]{.underline}
    [id.]{.underline} at 540.

[^5]: ^?^ There is nothing inconsistent between the position here stated
    and the policy expressed in the Bernstein Letter, cited by Amicus,
    at pages 17-19, in its discussion of the act of state doctrine. The
    [Bernstein]{.underline} case, [Bernstein]{.underline} v. [N.V.
    Nederlandsche-Amerikaansche Stoomvaart-Maatschappij]{.underline},
    210 F.2d 375, 376 (2d Cir. 1954), concerned claims against
    [private]{.underline} German parties, rather than the German
    [government]{.underline}. Moreover, the quotation relied upon by
    Amicus contains a statement specifically limiting its application to
    claims for \"the restitution of identifiable property (or
    compensation in lieu thereof).\" [Id.]{.underline} In any event, to
    the extent that there might exist any conflict, it is the present
    policy of the Executive Branch that should govern. The policy of
    courts deferring to the Executive Branch in questions of sovereign
    immunity stemmed from the recognition that foreign sovereign
    immunity was a matter of comity among nations. [See]{.underline}
    [Verlinden B.V.]{.underline}, 461 U.S. at 486. The Executive Branch
    must, therefore, be able to adapt its policy to changes in the
    country\'s foreign relations.

[^6]: ^?^ The Supreme Court also observed that in passing the FSIA
    Congress had invoked its power to punish \"Offenses against the Law
    of Nations,\" [Amerada Hess]{.underline}, 488 U.S. at 436 (citing
    U.S. Const. Art. I, § 8, cl. 10). The Court took this as further
    indication that the omission of a general exception for violations
    of international law was intentional. [See]{.underline}
    [ibid.]{.underline}

[^7]: ^?^ In amending the FSIA to permit suit for certain enumerated
    torts abroad by designated state sponsors of terrorism, Congress
    expressly declined to adopt a broader approach, originally passed by
    the House. [See]{.underline} 142 Cong. Rec. 4570, 4586, 4591-93
    (March 13, 1996) (§ 803 of H.R. 2703, as amended); 142 Cong. Rec.
    4814-15, 4836, 4846 (March 14, 1996).

[^8]: ^?^ A foreign state forfeits its immunity, for example, with
    respect to commercial activity, 28 U.S.C. § 1605(a)(2), the seizure
    of property in violation of international law, [id.]{.underline} §
    1605(a)(3), tortious acts committed in the United States,
    [id.]{.underline} § 1605(a)(5), and acts of international terrorism
    by states designated by the Executive Branch, [id.]{.underline} §
    1605(a)(7).

[^9]: ^?^ Amicus relies heavily on [Siderman]{.underline} as its chief
    example of an application of the implied waiver provision to
    circumstances beyond those listed by Congress. [See]{.underline}
    Amicus Br. at 12. [Siderman]{.underline} held that a foreign
    sovereign\'s affirmative invocation of the jurisdiction of U.S.
    courts could be construed as an implied waiver of immunity from suit
    on related claims. 965 F.2d at 720-23. This holding, which has
    itself been criticized, [see]{.underline} [Cabiri]{.underline} v.
    [Republic of Ghana]{.underline}, 165 F.3d 193, 202 (2d Cir. 1999),
    is at least far closer than this case to the examples identified by
    Congress, all of which \"share a close relationship to the
    litigation process,\" [Smith]{.underline}, 101 F.3d at 243.
    Significantly, [Siderman]{.underline} specifically
    [rejected]{.underline} the broader argument, urged here by Amicus,
    that the FSIA incorporates an exception for violations of
    [jus]{.underline} [cogens]{.underline}. [See]{.underline} 965 F.2d
    at 718-19 (\"The fact that there has been a violation of
    [jus]{.underline} [cogens]{.underline} does not confer jurisdiction
    under the FSIA.\").

[^10]: ^?^ The United States has never ratified the Vienna Convention.

[^11]: ^?^ Because of its lack of definition, the concept of
    [jus]{.underline} [cogens]{.underline} lends itself to exorbitant
    claims such as a right not to be \"locally deported\" (removed from
    the city limits). [See]{.underline} [Klock]{.underline} v.
    [Cain]{.underline}, 813 F. Supp. 1430 (C.D. Cal. 1993). [See
    also]{.underline} [Xuncax]{.underline} v. [Gramajo]{.underline}, 886
    F. Supp. 162, 189 (D. Mass. 1995) (court was reluctant to stretch
    asserted [jus]{.underline} [cogens]{.underline} norm against cruel
    and inhuman or degrading treatment to encompass constructive
    expulsion); [Sablan]{.underline} v. [Superior Court of the
    Commonwealth of the Northern Mariana Islands]{.underline}, 1991 WL
    258344, 2 N.M.I. 165 (N. Mariana Islands, 1991) (dissenting opinion)
    (right of self-government is so fundamental that it constitutes a
    peremptory norm); [see also]{.underline} [Sablan]{.underline} v.
    [Iginoef]{.underline}, 1990 WL 291893, 1 N.M.I. 146 (N. Mariana
    Islands, 1990) (concurring opinion) (same); [Borja]{.underline} v.
    [Goodman]{.underline}, 1990 WL 291854, 1 N.M.I. 63 (N. Mariana
    Islands, 1990) (same).

[^12]: ^?^ In [Princz]{.underline}, the court correctly observed:

    > We think something more nearly express is wanted before we impute
    > to the Congress an intention that the federal courts assume
    > jurisdiction over the countless human rights cases that might well
    > be brought by the victims of all the ruthless military juntas,
    > presidents-for-life, and murderous dictators of the world, from
    > Idi Amin to Mao Zedong. Such an expansive reading of § 1605(a)(1)
    > would likely place an enormous strain not only upon our courts
    > but, more to the immediate point, upon our country\'s diplomatic
    > relations with any number of foreign nations. In many if not most
    > cases the outlaw regime would no longer even be in power and our
    > Government would have normal relations with the government of the
    > day -- unless disrupted by our courts, that is.

    26 F.3d at 1174-1175, n.1.