Letter from the Executive Board

Dear Delegates,
We welcome you to the meeting of the United Nations General Assembly Sixth Committee
(UNGA Legal) being simulated at Amity Law School Delhi.
We urge the delegates to go through the guide very carefully, and to understand their countries
perspective and policy responses with regards to this situation.
This guide has been drafted with generic information for a specific purpose, that being that we
want you delegates to come to the committee and define the scope of debate yourselves as you
best deem suitable, rather than us defining the scope of debate for you.
While the background guide should provide a basic overview of each topic, additional in-depth
research will be tremendously useful in committee. Our topic is intentionally broad. Since it can
be applied to a variety of situations, it will be up to you to take the initiative in committee, and to
narrow it down into more specific problem areas that are in need of debate.
We hope to have a rigorous learning experience with you and are positive that you too will have
a lot to draw from the committee for future conferences.
Also please note that only news reports, facts and articles from sources like Reuters, and
UN official reports shall be accepted in the committee. Furthermore, before the session of
the United Nations General Assembly Sixth Committee (UNGA Legal) begins all members
will be given a briefing on various procedural issues like the treatment of points of orders,
appeals, presentation of sources of information etc.
Feel free to approach any of us in case you have doubts or clarifications regarding the agenda.
Sincerely,
Satrajit Sahani
Gurmehak Mann

Agenda: Immunity of State

Officials from Foreign Criminal
Jurisdiction
About the Committee
The United Nations General Assembly Sixth Committee (UNGA Legal) is the primary forum for
the consideration of legal questions in the General Assembly. All the United Member States are
entitled to representation in the UNGA Legal as one of the main committees of the General
Assembly. Article 13 of the United Nations Charter provides the General Assembly with an
explicit mandate to promote the progressive development of public international law. The UNGA
Legal Committee was formed to fulfill this very mandate. Since its establishment, the UNGA
Legal committee has been the main forum for negotiations on general public international law
and has contributed greatly to the development of international law.
This is reflected in the numerous treaties that were negotiated within the framework of the
UNGA Legal committee, such as 1961 Vienna Convention on Diplomatic Relations, the 1969
Vienna Convention on the Law of Treaties, the 1998 Rome Statute of the International Criminal
Court, as well as the 2001 Draft Articles on the Responsibility of States for Internationally
Wrongful Acts. The UNGA Legal Committee is entrusted with the task of negotiating, agreeing
upon and subsequently recommending treaties to Member States of the UN for signature.
The recommendations the UNGA Legal Committee has agreed upon are then passed to the UN
General Assembly for adoption. The UNGA Legal Committee operates on the basis of mixed
decision making rule. This means that consensus is preferred, but a vote is still possible.

Background:
For many years, there has been a disagreement between international and national criminal
courts on whether state officials should benefit from immunity and in what circumstances they
are able to obtain such benefits. Current rule of law states offenses committed by heads of state
will be addressed in the home country of the given state official. However, this process is rarely
applied seeing that the heads of state are often granted immunity to the crimes they have
committed. Such crimes can include the denial of human rights, crimes against humanity, and
war crimes. The extent of these immunities is unclear, which results in a lack of justice in
international law. When a head of state is charged with an international crime, they must be tried
before an international court, specifically the International Criminal Court (ICC). Unfortunately,
the percentage of cases reaching the ICC is limited. Depending on the severity of the crime, the
head of state often issues his or her own immunity as well as boosts his or her immunity in order
to avoid the possible outcomes of a trial. There are two general types of immunity: personal
immunity and functional immunity. Personal immunity is reserved mainly for heads of states,
foreign leaders, and ambassadors as it regards both private and public affairs. It is based on the
office or position a person holds and only applies to those who currently hold office. The second
form of immunity is functional immunity, which covers the leader, whether or not they still hold
their previous position, and is based on the nature of the crime committed. Immunity and state
government responsibility are significantly linked. A plea of immunity by a state suggests that a
criminal act carried out by a head of state was a crime of the nation itself. Therefore, it is the
duty of the nation involved and the international community to contribute to the reformation of
court systems both nationally and internationally.
UN Involvement:
Throughout the many years of international conflict and warfare, the United Nations has
continued to direct more attention towards the issue of immunity for state officials. This topic is
sensitive for several reasons: twenty-seven of the ICC statutes do not recognize the immunity of
state officials for international crimes, different kinds of officials can benefit from immunity
while others cannot, and, with resolving this issue, deference to state sovereignty. African
nations, in particular, have come together to call for immunity for their heads of state while they
are serving in office. Due to this recent push by the African Union, the United Nations Security
Council is being pressured to choose sides. However, Russia, China, and the United States, three
of the five permanent members of the Security Council, have yet to ratify the Rome Statute due
to uncertainty over the question of immunity. The Rome Statute, the legal foundation of the ICC,
states that state officials who enjoy immunity or separate legal procedures cannot escape the
courts jurisdiction. The idea and definition of functional immunity was strongly established in

the founding documents of the UN. However, in order to maintain effectiveness, there needs to
be more detailed guidelines created that specify the role of immunity in circumstances in which
the sovereignty of the state may be threatened.
Some UN senior officials also benefit from immunity and other such privileges if ever convicted
of a crime. This brings into question the legality of preventing heads of state from also receiving
immunity as well as to what extent UN and state officials should be granted immunity.
Introduction
A fundamental principle of international law is that members of diplomatic missions are shielded
from legal process.' This "shield"--diplomatic immunity-is broadly defined as "the freedom from
local jurisdiction accorded under international law by the receiving state to [foreign diplomats
and to] the families and servants of such officers." A common misconception is that diplomatic
privileges and immunities confer a license to commit wrongs. This Comment will demonstrate
that diplomatic immunity from criminal and police jurisdiction, although subject to abuse, does
not entitle diplomats to violate domestic laws, but is, instead, an essential element of effective
international relations.
Specifically, this Comment will trace the doctrine of diplomatic immunity from its incorporation
into United States statutory law in 1790, to its uniform international treatment in the Vienna
Convention on Diplomatic Relations in 1961, and finally to its recent codification in the
Diplomatic Relations Act of 1978. Special emphasis will be placed upon the scope of immunity
from criminal prosecution and the class of diplomats who are entitled to receive it. Finally, the
changing nature of diplomatic immunity and the sanctions which constrain diplomatic
representatives to abide by local laws will be analyzed.
THE THEORIES UNDERLYING DIPLOMATIC IMMUNITY
Any comprehensive analysis of diplomatic immunity must include a discussion of its underlying
theories. Diplomatic immunity is among the most ancient doctrines of international law.
Extending specific rights to representatives of other countries in periods of peace and war has
long been essential to facilitate international relations.
Legal scholars have offered several theories to justify diplomatic privileges and immunities.
Most prominent are the following theories:
(1) personal representation;
(2) extraterritoriality; and
(3) functional necessity.

A. Personal Representation
The personal representation theory enjoyed its greatest popularity during the eighteenth and
nineteenth centuries.' Under the personal representation theory, the diplomat assumes the role of
the head of the sending state or of the sovereign power of that state. Because the diplomat is the
"alter ego" of his ruler,' he enjoys the rights and privileges which would be accorded his master
by the receiving state. The rationale for the personal representation theory was best expressed by
Chief Justice Marshall in The Schooner Exchange v. M'Faddon.
"The assent of the sovereign to the very important and extensive exemptions from territorial
jurisdiction which are admitted to attach to foreign ministers, is implied from the considerations
that, without such exemption, every sovereign would hazard his own dignity by employing a
public minister abroad."' Personal representation has been criticized, however, as being
"altogether too wide and too fallacious for the business of conducting international business."'
B. Extraterritoriality
Extraterritoriality is another theory employed during the eighteenth and nineteenth centuries to
justify diplomatic immunity.' Under this theory, a diplomat is treated as if he were still living in
the sending state, and the premises of the diplomat's mission are treated as an extension of that
state's territory. Thus, extraterritoriality suggests that a host state may neither enter, nor subject to
legal process, real property held by another state. Moreover, a host state lacks personal
jurisdiction over the diplomat and therefore cannot compel him to appear in its courts.
A judicial interpretation of this theory appeared in Wilson v. Blanco,24 an 1889 New York
Supreme Court case. There, the court stated that the rule of international law "derives support
from the legal fiction that an ambassador is not an inhabitant of the country to which he is
accredited, but of the country of his origin, and whose sovereign he represents, and within whose
territory he, in contemplation of law, always abides."
C. Functional Necessity
Courts and legal theorists recently have begun to temper the theories of personal representation
and extraterritoriality because they define the scope of immunities accorded diplomats too
broadly. "Realizing that the purpose of such privileges and immunities is not to benefit
individuals but to ensure the efficient performance of the functions of diplomatic missions," the
current justification for diplomatic immunity is based upon the theory of functional necessity.
Under this theory, a diplomat can operate effectively only if given enough liberty to conduct the
business with which he is charged.
Practical necessity dictates that the diplomatic agent be permitted to perform his duties without
fear of civil or criminal prosecution in the country to which he is accredited.

IMMUNITY FROM CRIMINAL PROSECUTION

A recurring theme throughout the history of diplomatic immunity is the immunity diplomatic
personnel enjoy from criminal prosecution in the host state. This universal rule of immunity is
stated in Article 31(1) of the Vienna Convention: "A diplomatic agent shall enjoy [absolute]
immunity from the criminal jurisdiction of the receiving State."" This became law in the United
States with the passage of the Diplomatic Relations Act of 1978.
Most commentators as well as most courts" support absolute immunity from criminal
prosecution. Many commentators contend that under both the theory and practice of international
law, diplomatic agents may not be tried or punished by local courts for committing a crime,
Criminal immunity derives support from the functional necessity theory's goal of maintaining
public order and preserving free and uninterrupted relations among nations." Immunity from the
jurisdiction of local police is a traditional right inherent in a diplomat's immunity from criminal
prosecution."
This right is articulated in a District of Columbia Police Departmental Order which states that
"the person entitled to such immunity may not be detained or arrested or subjected to a body
search, may not be prosecuted and may not be required to give evidence as a witness .... ,
This statement does not mean, however, that diplomats are exempt from local police regulations.
Article 41, paragraph 1, of the Vienna Convention incorporates this idea by declaring that
"[wlithout prejudice to their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving State."
Nevertheless, abuse by diplomats of local laws and regulations is not uncommon, especially
infractions of municipal traffic ordinances.
Traffic violations, such as speeding, running stop signs and not paying parking tickets present
special enforcement problems.' The magnitude of this problem is vividly illustrated in New York
and Washington, D.C., the two cities with the largest diplomatic populations. United Nations
officials in New York City accounted for 250,000 parking tickets, few of which have been paid.
During 1976, fewer than one-fifth of 52,830 parking tickets issued to automobiles bearing
diplomatic plates in Washington, D.C., were paid.' Because most jurisdictions within the United
States classify traffic violations as criminal offenses, diplomats continue to escape prosecution
for these violations under the Diplomatic Relations Act, which grants criminal immunity to most
categories of diplomatic personnel.
The question remaining, therefore, is which categories of diplomats are protected from criminal
prosecution?

Categories of Diplomats Protected under the Diplomatic Relations Act

Of the four major categories of the "diplomatic mission," only two-diplomatic agents, and
administrative and technical staff-are granted complete immunity from criminal prosecution.
Family members of these two groups also enjoy these immunities. Functional necessity dictates
that those privileges and immunities granted to the diplomatic agent be extended to his family.
The general rule that diplomatic agents (ambassadors and ministers) are exempt from criminal
prosecution in the courts of the country to which they are accredited has not been seriously
contested. However, the immunities granted to the diplomat's family, and the rationale for
granting such immunities, have both been challenged.
The immunity provisions of the Vienna Convention applicable to a diplomat's family were
incorporated into the Diplomatic Relations Act of 1978. Article 37, paragraph 1, of the Vienna
Convention states that "[the members of the family of a diplomatic agent forming part of the
household shall, if they are not nationals of the receiving State, enjoy the privileges and
immunities specified in Articles 29 to 36." Article 37 - immunity is therefore contingent upon
membership in the "family" and inclusion as part of the "household." Interpretation of these
terms, however, has produced multifarious definitions.
The international view is that "family" includes at least spouses, dependent parties and children
of different age groups, while "household" includes private servants who are not nationals of the
receiving state but who live under the same roof. Children of foreign ambassadors often abuse
the immunities afforded to them as members of a diplomat's family. Such abuses are illustrated
by the following incidents involving serious traffic violations.
The first incident involved the twenty-one year old son of the Irish ambassador to the United
States, John J. Hearne. Young Hearne was charged with homicide when his car struck and killed
a domestic worker as she was crossing the street. The charge was dropped when diplomatic
immunity was invoked.
The other two incidents involved sons of ambassadors to the United States from Paraguay and
Pakistan. Both situations involved charges of reckless driving, but neither one resulted in
criminal prosecution because diplomatic immunity was invoked. In one instance the police chief
threatened to assign a three-man force to arrest the son and bring him before a judge "to show
that traffic laws were not to be 'sneezed at.' "The State Department, however, intervened and
cancelled the "marching orders" because the ambassador's immunity extended to his son.

Broad Country Bloc Positions:

Western bloc: There have been past instances where head officials of some western nations have
obtained immunity for crimes committed. American courts, for example, have granted two heads
of government with immunity. However, in terms of international crimes, many western nations
have moved to prevent the granting of immunity, particularly in cases of war crimes and human
rights violations. This includes European nations, who have made efforts to aid other nations in
reforming judicial practices.
African bloc: In recent years, African nations, such as Sudan and Kenya, have seen their leaders
be put on trial in the International Criminal Court. The African Union has expressed its support
for granting immunity, mainly for crimes against humanity, to state officials while they remain in
office. However, despite its opposition to the courts jurisdiction, there are more nations in Africa
that have ratified the ICC Rome Statue than in any other area.
Middle Eastern bloc: The Middle East is well known for its history of unstable governments
and radical leaders. Many have been put on trial in the International Criminal Court for
violations against human rights and other war crimes. There are many anti-government groups in
such countries with corrupt leaders. Many heads of state in this region use violence to suppress
protestors and rebel groups.
Latin American bloc: A significant milestone in international law was the prosecution of the
former dictator of Chile. This sparked a revolution in Latin America to reform immunity laws
and see that heads of state face the consequences of their crimes. About half a dozen former state
officials have since been investigated for previous crimes against humanity while the judicial
practices of some Latin countries are being reviewed to serve this movement.
Asian bloc: Only eighteen Asia-Pacific nations are party to the ICC Rome Statute. Many state
officials of Asian nations have violated international law in terms of human rights. Most nations
remain supportive of immunity and the benefits that go along with it.

Functional Immunity (Ratione Materiae)

This type of immunity serves to protect select officials, including heads of state and government,
prime ministers, and foreign ministers from foreign jurisdiction for acts committed while
performing their official duties. The general idea behind ratione materiae is the belief that actions
carried out on the job are attributed to the State and not the official. It serves to protect officials
from backlash relating only to their official acts. Such immunity is unique in the fact that it is
permanent. Regardless of whether or not an official still holds the same position, he/she is
entitled to legal protection.
Nonetheless, this is only true unless the acts were committed under an officials individual
capacity. In November of 2007, former US Defense Secretary Donald Rumsfeld, for example,
was immune from all charges pressed against him by the Fdration Internationale des Ligues
des Droits de lHomme (FIDH) and the US Center for Constitutional Rights (CCR), regarding
alleged crimes committed during the 2003 Iraq invasion. The allegations included violations of
prisoners religious rights and more notably, torture, including physical abuse and sexual
humiliation. Most international courts today, however, refuse to recognize official immunity in
the case of major international crimes, including but not limited to crimes against mankind,
genocide, crimes in warfare, and torture. The logic behind these new measures is that it is never
and should never be any States undertaking to commit such vile acts. Likewise, some courts
refuse to recognize any form of immunity altogether. Much of the measures mentioned
previously are in coordination with the following conventions and/or treaties:
Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis, and Charter of the International Military Tribunal, 1945: The official position of
defendants, whether as Heads of State or responsible officials in Government Departments, shall
not be considered as freeing them from responsibility or mitigating punishment. Article 7
The Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 1993:
The official position of any accused person, whether as Head of State or Government or as
a responsible Government official, shall not relieve such person of criminal responsibility nor
mitigate punishment. Article 7.2
The Statute of the International Criminal Tribunal for Rwanda, adopted 1994: The official
position of any accused person, whether as Head of State or Government or as a responsible
Government official, shall not relieve such person of criminal responsibility nor mitigate
punishment. Article 6.2
The Rome Statute of the International Criminal Court, adopted 1998 (enforced 2002): This
Statute shall apply equally to all persons without any distinction based on official capacity. In

particular, official capacity as a Head of State or Government, a member of a Government or

parliament, an elected representative or a government official shall in no case exempt a person
from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground
for reduction of sentence. Article 7.1
Immunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person. Article 7.2
The Genocide Convention, adopted 1948 (enforced 1951): Persons committing genocide or
any of the other acts enumerated in article III shall be punished, whether they are
constitutionally responsible rulers, public officials or private individuals. Article 4
Personal Immunity (Ratione Personae)
This form of immunity is granted to officials, including heads of government and state, prime
ministers, diplomats, and foreign ministers. Its primary motive is to protect eligible officials from
all legal jurisdictions whilst holding their positions. In other words, once the official is no longer
in office, his/her immunity automatically expires. This is why ratione personae is regarded as
personal, temporary, and unconditional. Such immunity serves to ensure the smoothest possible
relations among States with valuable communication. Free from fears of harassment by other
countries, officials can uphold peace among States. It covers both the officials private and
official actions for the duration of their terms. According to the ICJ, immunity is given to
diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as
the Head of State, Head of Government, and Minister for Foreign Affairs. With the use of the
words such as, it can be understood that the grant of immunity is not limited to just the officials
mentioned.
A few recent examples
The most heatedly debated issue regarding both forms of immunity is when it applies. In general,
it is widely agreed that immunity should only be granted in cases relating to officials special
missions for their governments in foreign States. Still, history shows that this is not always the
case. In 2005, allegations of acts of torture arose about Re Bo Xilai, Chinese Minister of
Commerce and International Trade at the time. With immunity ratione personae on Bo Xilais
side, files for arrest warrants were turned down by district judges.11 In 2012, nonetheless, new
suspicions came to view about Bo Xilai. With time and under heavy pressure, he was expelled
from the Communist Party and parliament; as such, he was automatically stripped of all
immunity. Soon enough, he was charged with corruption, bribery, and abuse of power. On
September 22, 2013, Bo Xilai was finally found guilty on all charges with a life-sentence to jail
with possibility of parole. On a similar note, General Shaul Mofaz, former Israeli Minister of
Defense, was granted immunity regarding claims of violations of war crimes in 2004.
To date, Mofaz has never faced any charges regarding the issue despite a few scares in June of
2015 when the UK refused to grant him immunity from arrest while visiting. In contrast, former
heads of state, including Fidel Castro Cuba, Muammar Gaddafi Libya, and Ariel Sharon

Israel, each received full immunity from foreign courts whenever criticism arose because they
had ratione personae to lean on. Castro was relieved of all legal charges pressed against him in
Belgium and Spain, Gaddafi was exempted from similar charges in France, and Sharon was
exempted in Belgium.
Concepts of Immunity
A pivotal origin of dispute among States is how far officials immunity can be extended; in other
words, how do we determine which acts qualify for immunity and which acts do not? An
overwhelming majority of experts globally seem to agree that a clear distinction is needed to
differentiate officials personal, or private, and functional, or on-the-job, immunity.
In order to resolve the issue, several philosophers propose updating the standards of immunity
qualifications. Some of those theories include:
1. This first method also happens to be the oldest with the belief that all officials of a State waive
the right to receive immunity for any acts committed during their time in their positions, as long
as these acts coincide with the duties that come with the positions.
2. The second method would equip officials working internationally on foreign soil with
immunity for only a certain range of acts deemed appropriate.
3. The third and final method claims that immunity is completely dependent on factors including
the official, the acts committed, and the practice of jurisdiction performed.

Recommendations
Delegates may consider the following when drafting resolutions:
1. Develop some standards to instill regarding the level of immunity officials receive.
2. Find other countries that can share in your countrys proposals.
3. Discuss which officials the ILC should give the right to demand immunity.
4. Propose new ideas on how to improve or edit current regulations.

Terms and Concepts

Immunity: the exemption from performing duties, or from a penalty or burden, that the law
generally requires or places upon other citizens.
Jurisdiction: the official power to make legal decisions and judgements.
Functional Immunity (Ratione Materiae): a type of immunity that serves to protect select
officials, including heads of state and government, prime ministers, and foreign ministers from
foreign jurisdiction for acts committed while performing their official duties with the belief that
actions carried out on the job are attributed to the State and not the official.
Personal Immunity (Ratione Personae): a form of immunity that is granted to officials,
including heads of government and state, prime ministers, diplomats, and foreign ministers that
protects eligible officials from all legal jurisdictions whilst holding their positions. Ratione
personae is notably personal, temporary, and unconditional.
FIDH: Fdration Internationale des Ligues des Droits de lHomme (French) / International
Federation for Human Rights (English)
Genocide: the deliberate killing of a large group of people, especially those of a particular ethnic
group or nation.
Official Act: acts carried out by officials in relation to their duties and obligations throughout
their mandate.
Questions to Consider
1. What is your countrys stance on personal immunity?
2. What is your countrys stance on functional immunity?
3. How has your countrys stance on immunity evolved over the years?
4. Are there any cases in which officials from your country were granted immunity from foreign
jurisdiction?
5. Has your country signed/ratified any treaties?
6. Which conventions has your country attended?

7. What other countries share your countrys position?

8. What is the importance of having personal and functional immunity?
References
1)

International Law Commission. (n.d.). Retrieved February 18, 2016, from

http://legal.un.org/ilc

2)

Fordham International Law Journal. (n.d.). Retrieved February 18, 2016, from
http://ir.lawnet.fordham.edu/ilj/vol34/iss2/6/

3)

Amnesty and Immunity. (n.d.). Retrieved February 18, 2016, from http://www.trialch.org/en/resources/international-law/amnesty-andimmunity.html

4) French prosecutors throw out Rumsfeld torture case.

(2007). Retrieved February 18, 2016, from http://www.reuters.com/article/2007/11/23/us-francerights-umsfeldidUSL238169520071123#65jAtJRYxp23YdZB.97
Britain refuses to grant immunity to ex-Israeli defense minister Mofaz during London visit Diplomacy
and
Defense.
(n.d.).
Retrieved
February
18,
2016,
from
http://www.haaretz.com/israelnews/.premium-1.662195
5) UPDATED STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA. (2008, September 29). Retrieved February 18, 2016, from
http://www.icty.org/x/file/Legal Library/Statute/statute_sept08_en.pdf
7) Statute of the International Criminal Tribunal for Rwanda. (n.d.). Retrieved February 18,
2016,
from
http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatuteInternationalCriminalTribunalForRw
anda.aspx
8) Rome Statute of the International Criminal Court. (2002, July 1). Retrieved February 18,
2016,
from
https://www.icccpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE940A655EB30E16/0/Rome_Statute_English.pdf
9) Genocide, Convention on the Prevention and Punishment of the Crime of - - Prevent Genocide
International. (n.d.). Retrieve
10) February 18, 2016, from http://www.preventgenocide.org/law/convention/text.htm
11) European Journal of International Law. (n.d.). Retrieved February 18, 2016, from
http://ejil.oxfordjournals.org/content/21/4/815.full#xref-fn-23-1
12) Immunity of Heads of State and State Officials for International Crimes. (n.d.). Retrieved
February 18, 2016, from https://books.google.com.lb/books?id=y3KeBQAAQBAJ

13) Bo Xilai scandal: Timeline - BBC News. (n.d.). Retrieved February 18, 2016, from
http://www.bbc.com/news/world-asia-china-17673505
14) (n.d.). Retrieved February 18, 2016, from https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?
action=openDocument
15) Immunity For Foreign Officials: Possibly Too Much and Confusing As Well. (n.d.).
Retrieved February 18, 2016, from http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?
article=1511&context=facpub