Ye, Wei v. Zemin, Jiang

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3989

WEI YE, HAO WANG, DOES,

A, B, C, D, E, F, and others similarly

situated,

Plaintiffs-Appellants,

v.

JIANG ZEMIN and FALUN GONG

CONTROL OFFICE, a/k/a OFFICE 610,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 C 7530—Matthew F. Kennelly, Judge.

____________

ARGUED MAY 27, 2004—DECIDED SEPTEMBER 8, 2004

Before BAUER, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge. The appellants are practitioners of

Falun Gong, a spiritual movement of Chinese origin. Most

of the appellants are current or past residents of the People’s

Republic of China. In addition, two of the appellants are

United States citizens and a third is an alien resident of

Illinois. The appellants appeal from a decision of the United

States District Court for the Northern District of Illinois

dismissing their lawsuit against the former President of

China, Jiang Zemin, and an office of the Chinese Communist

2 No. 03-3989

Party (the “Party”) allegedly established by Jiang for the pur-

pose of suppressing Falun Gong. We affirm.

I.

Jiang Zemin served as President of China for approxi-

mately ten years, from March 1993 to March 15, 2003. Dur-

ing part of his tenure as President, he also served as the

Secretary General of the Central Committee of the Chinese

Communist Party (the head of the Party). President Jiang

stepped down as head of the Party on November 15, 2002.

Beginning in 1999, the Chinese government and the Party

1

took steps to crack down on Falun Gong. Falun Gong,

formed in 1992 by a former Chinese soldier, Li Hongzhi,

“combin[es] traditional Buddhist teachings and predictions

about the end of the world with meditation and martial arts

discipline as a prescription for physical and spiritual

well-being. Falun Gong teaches that illness stems from evil

and that by following the principles of ‘truth, compassion

and forbearance,’ one can attain clairvoyance and other pre-

2

ternatural faculties.” The Chinese government and the

Party see things differently. They have denounced the move-

ment as a cult and have accused it of seeking to subvert or

1

We accept, for present purposes, as true the appellants’ alle-

gations. We further note that the United States intervened below

only to assert President Jiang’s immunity and has not taken issue

with the veracity of the claims of the appellants. In its brief to this

court, the United States draws our attention to remarks of

President George W. Bush and State Department Reports con-

demning the types of practices alleged by the appellants.

2

John Pomfret and Michael Laris, “China Outlaws Nonconformist

Spiritual Sect; Group Had Organized Protests Across Nation,”

Wash. Post, July 23, 1999, at A1.

No. 03-3989 3

3

overthrow the government and the Party’s grip on power.

According to at least one news report, President Jiang him-

self declared that suppressing Falun Gong was one of the

4

“ ‘three major political struggles’ of 1999.”

To that end, on June 10, 1999, President Jiang established,

as part of the Party’s apparatus, the Falun Gong Control

Office. The Office is known as “Office 6/10” after the date

of its creation. In July 1999, President Jiang issued an edict

outlawing Falun Gong. This edict was followed by mass

arrests, allegedly farcical trials, torture, forced labor, “re-ed-

ucation,” and the killing of members.

The appellants filed this lawsuit against President Jiang

and Office 6/10 on October 18, 2002. The appellants’ com-

plaint, recites, inter alia, claims of torture, genocide, arbitrary

arrest and imprisonment, as well as other claims related to

the appellants’ freedom of conscience, movement, and

religion. The appellants argued that the district court had

jurisdiction to hear their case pursuant to the Alien Tort

Claim Act, 28 U.S.C. § 1350, as well as, in part, 28 U.S.C.

§§ 1343(4) and 1331.

Because President Jiang was scheduled to be in Chicago

on October 22 and 23 on his way to visit with United States

President George W. Bush in Washington, D.C., the ap-

pellants moved ex parte for leave from the district court to

effect service on President Jiang (and by extension Office

6/10) while he was in Chicago. The district court granted

this motion and entered an order permitting service by de-

livery of a copy of the summons and complaint “to any of the

security agents or hotel staff helping to guard” President

3

Id.

4

John Pomfret, “China Girds For a Battle Of the Spirit; Ruling

Party Fears Religious Challenge,” Wash. Post, Jan. 10, 2000, at A1.

4 No. 03-3989

5

Jiang. The appellants contend that service was complete

when they delivered a copy of these documents to a Chicago

police officer and agents of the United States Secret Service

detail stationed at the hotel at which President Jiang was

staying in Chicago.

Neither President Jiang nor a representative of the

Chinese government or Office 6/10 responded to the com-

plaint, and the appellants moved for an entry of default. The

United States, however, intervened pursuant to 28 U.S.C. §

517 and moved to vacate the service order or, in the alterna-

6

tive, to assert head-of-state immunity for President Jiang.

The United States further argued that President Jiang was

personally inviolable and, therefore, incapable of being

5

We express some concern at the enlistment of agents of the

Executive Branch, particularly those charged with providing

security for President Jiang’s visit, to effectuate service. Our con-

cern is grounded in separation of powers principles as well as the

policy ramifications inherent in requiring a Secret Service agent

to serve simultaneously as a security guard for a foreign digni-

tary and a de facto process server. Given the outcome of this case

we need not thoroughly explore the matter, however, as the

problem should not recur.

6

The United States included with its motion before the district

court a letter from William H. Taft, IV, Legal Adviser to the

Department of State to Robert D. McCallum, Jr., an Assistant

Attorney General with the Department of Justice. In that letter,

Taft stated that “[t]he Department of State recognizes and allows

the immunity of President Jiang from this suit.”

Further, the United States’ “amicus” brief to this court appears

to be a collaborative effort of the State Department and the

Department of Justice. We take the statements in this brief

concerning the potential impact of the current suit to be more

than simply the advocacy position of the government. We regard

it as the official position of the Executive Branch.

No. 03-3989 5

served in any capacity. Specifically, the government argued

that President Jiang could not be served as an agent of

Office 6/10.

The district court accepted the United States’ assertion of

head-of-state immunity on behalf of President Jiang and

dismissed the appellants’ claims against him. The district

court rejected, however, the government’s argument of

personal inviolability. Instead, the district court found that

service of process on Office 6/10 could not be achieved

through President Jiang because the appellants had not

shown that President Jiang was either an agent or an officer

of Office 6/10. Further, the district court held that, even as-

suming service of process on Office 6/10 could be effectu-

ated through President Jiang, it lacked personal jurisdiction

to hear claims against it. The district court, therefore, dis-

missed the appellants’ complaint in its entirety. This appeal

followed.

II.

The appellants raise three issues on appeal. First, they

argue that the district court erred when it accepted, as con-

trolling, the United States’ assertion of head-of-state immunity

on behalf of President Jiang. Second, the appellants argue

that the district court erred when it determined that Presi-

dent Jiang could not be served as an agent of Office 6/10.

Finally, the appellants argue that the district court erred

when it held that it lacked personal jurisdiction over Office

6/10.

A. Head-Of-State Immunity—Some Background

The appellants’ first argument relates to the assertion by

the United States, which the district court took as disposi-

6 No. 03-3989

tive, that President Jiang was immune from the appellants’

suit. The appellants argue that the actions President Jiang is

accused of amount to violations of “jus cogens” norms of

international law and that immunity may not be conferred

upon a person accused of violating these norms.

The Supreme Court recognized the immunity of foreign

sovereigns from suits brought in United States courts nearly

200 years ago. In Schooner Exchange v. McFaddon, 11 U.S. (7

Cranch) 116 (1812), Chief Justice Marshall reasoned that

although “the jurisdiction of the United States over persons

and property within its territory ‘is susceptible to no

limitation not imposed by itself,’ . . . as a matter of comity,

members of the international community had implicitly agreed

to waive the exercise of jurisdiction over other sovereigns in

certain classes of cases, such as those involving foreign

ministers or the person of the sovereign.” Republic of Austria v.

Altman, 541 U.S. ___, slip op. at 9 (2004) (quoting McFaddon, 11

U.S. at 136). Following McFaddon, courts have been expected

to “defer[ ] to the decisions of the political branches—in

particular, those of the Executive Branch—on whether to

take jurisdiction over actions against foreign sovereigns and

their instrumentalities.” Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 486 (1983).

For most of the next 165 years, the Executive Branch deter-

mined whether a foreign nation was entitled to immunity. The

practice during this period was that the State Department

would provide a court with a “suggestion of immunity.” On

reception of this “suggestion,” courts would dismiss a suit,

or any claims brought in a suit, against a foreign nation.

In 1952, the State Department adopted the “restrictive”

theory of sovereign immunity. See Verlinden, 461 U.S. at 486-

87. “Under this theory, immunity is confined to suits

involving the foreign sovereign’s public acts, and does not

extend to cases arising out of a foreign state’s strictly

No. 03-3989 7

commercial acts.” Id. at 487. The restrictive theory was often

honored in the breach: “On occasion, political considerations

led to suggestions of immunity where immunity would not

have been available under the restrictive theory.” Id.

In 1976, Congress enacted the Foreign Sovereign Immuni-

ties Act of 1976 (the “FSIA”), 28 U.S.C. §§ 1602 et seq. As an

initial matter, the FSIA provides a foreign state with im-

munity from suit in courts of the United States or of any

state. 28 U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S. 349,

355 (1993) (“Under the [FSIA], a foreign state is presumptively

immune from the jurisdiction of United States courts . . . .”).

Such immunity is subject, however, to international agree-

ments to which the United States was a party in 1976, as

well as certain exceptions set forth in the FSIA. Id. These ex-

ceptions codify the restrictive theory of immunity. The re-

sponsibility for determining whether an exception applies

is left to the courts. See United States v. Noriega, 117 F.3d

1206, 1212 (11th Cir. 1997) (“[The FSIA] codified the State

Department’s general criteria for making suggestions of

immunity, and transferred the responsibility for case-by-

case application of these principles from the Executive

Branch to the Judicial Branch.”). Insofar as a foreign state is

concerned, therefore, the pre-1976 practice of courts reflex-

ively deferring to the Executive Branch’s immunity determi-

nations has been eliminated.

The FSIA does not, however, address the immunity of

foreign heads of states. The FSIA refers to foreign states, not

7

their leaders. The FSIA defines a foreign state to include a

political subdivision, agency or instrumentality of a foreign

7

In this way, the FSIA does not recognize (as McFaddon clearly

did) the classical conflation of a head of state with the state itself

(succinctly stated by King Louis XIV of France, “L’etat, c’est

moi.”).

8 No. 03-3989

state but makes no mention of heads of state. 28 U.S.C. §

1603(a). Because the FSIA does not apply to heads of states,

the decision concerning the immunity of foreign heads of

states remains vested where it was prior to 1976— with the

Executive Branch. Noriega, 117 F.3d at 1212. (“Because the

FSIA addresses neither head-of-state immunity, nor foreign

sovereign immunity in the criminal context, head-of-state

immunity could attach in cases, such as this one, only

pursuant to the principles and procedures outlined in

[McFaddon] and its progeny. As a result, this court must

look to the Executive Branch for direction on the propriety

of Noriega’s immunity claim.”).

B. The Present Case

In this case the Executive Branch entered a suggestion of

immunity. The appellants argue, however, that the Executive

Branch has no power to immunize a head of state (or any

person for that matter) for acts that violate jus cogens norms

of international law. We have explained jus cogens norms

before:

A jus cogens norm is a special type of customary in-

ternational law. A jus cogens norm “ ‘is a norm accepted

and recognized by the international community of states

as a whole as a norm from which no derogation is

permitted and which can be modified only by a subse-

quent norm of general international law having the

same character.’ ” See Siderman de Blake v. Republic of

Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna

Convention on the Law of Treaties, art. 53, May 23,

1969, 1155 U.N.T.S. 332, 8 I.L.M. 679). Most famously,

jus cogens norms supported the prosecutions in the

Nuremberg trials. See Siderman, 965 F.2d at 715 (9th Cir.

1992) (“The universal and fundamental rights of human

No. 03-3989 9

beings identified by Nuremberg—rights against geno-

cide, enslavement, and other inhumane acts . . .—are the

direct ancestors of the universal and fundamental

norms recognized as jus cogens.”).

Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149-

50 (7th Cir. 2001).

The appellants’ position, therefore, is that, in at least a

particular class of cases (those involving jus cogens norms),

a court cannot defer to the position of the Executive Branch

with respect to immunity for heads of states. The Supreme

Court has held, however, that the Executive Branch’s sug-

gestion of immunity is conclusive and not subject to judicial

inquiry. See Ex Parte Republic of Peru, 318 U.S. 578, 589 (1943)

(“The certification and the request that the vessel be de-

clared immune must be accepted by the courts as a conclusive

determination by the political arm of the Government that the

continued retention of the vessel interferes with the proper

conduct of our foreign relations.”) (emphasis added);

Compañia Española de Navegacion Maritime, S.A. v. The

Navemar, 303 U.S. 68, 74 (1938) (“If [a claim of immunity by

a foreign government] is recognized and allowed by the

Executive Branch of the government, it is then the duty of the

courts to release the vessel upon appropriate suggestion by

the Attorney General of the United States, or other officer

acting under his discretion.”) (emphasis added); see also Spacil

v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974) (“The precedents are

overwhelming. For more than 160 years American courts

have consistently applied the doctrine of sovereign immu-

nity when requested to do so by the executive branch. More-

over, they have done so with no further review of the

executive’s determination.”); Isbrandtsen Tankers, Inc. v.

President of India, 446 F.2d 1198, 1201 (2d Cir. 1971) (“The

State Department is to make [an immunity determination]

in light of the potential consequences to our own interna-

10 No. 03-3989

tional position. Hence once the State Department has ruled

in a matter of this nature, the judiciary will not interfere.”);

Rich v. Naviera Vacuba S.A., 295 F.2d 24, 26 (4th Cir. 1961)

(“[W]e conclude that the certificate and grant of immunity

issued by the Department of State should be accepted by the

court without further inquiry. We think that the doctrine of

the separation of powers under our Constitution requires us

to assume that all pertinent considerations have been taken

into account by the Secretary of State in reaching his con-

8

clusion.”) (internal citations omitted).

The appellants present their argument as one of inter-

national law—under customary international law, a state

cannot provide immunity to a defendant accused of vio-

lating jus cogens norms. Our first concern, however, is to

ascertain the proper relationship between the Executive and

Judicial Branches insofar as the immunity of foreign leaders

is concerned. The obligation of the Judicial Branch is

clear—a determination by the Executive Branch that a

foreign head of state is immune from suit is conclusive and

a court must accept such a determination without reference

to the underlying claims of a plaintiff. See Spacil, 489 F.2d at

8

As the foregoing citations show, many cases concerned with

foreign sovereign immunity involve libel actions or other actions

involving commercial marine vessels rather than a head of state.

This distinction does not make a difference to the question at issue:

whether a suggestion of immunity by the Executive Branch is

dispositive. These authorities support the conclusive nature of the

Executive Branch’s determination of immunity with regard to

heads of state. Courts appropriately accept an immunity de-

termination as conclusive when it involves ships out of concern

that the court might otherwise interfere with the foreign policy

objectives of the Executive Branch. Clearly such concerns would

be greater when the suggested immunity involves a foreign

leader.

No. 03-3989 11

618 (“[W]e are analyzing here the proper allocation of

functions of the branches of government in the scheme of

the United States. We are not analyzing the proper scope of

sovereign immunity under international law.”).

Our deference to the Executive Branch is motivated by the

caution we believe appropriate of the Judicial Branch when

the conduct of foreign affairs is involved. Cf. Republic of

Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (“[I]t is a guiding

principle in determining whether a court should [recognize

a suggestion of immunity] in such cases, that the courts

should not so act as to embarrass the executive arm in its

conduct of foreign affairs. ‘In such cases the judicial depart-

ment of this government follows the action of the political

branch, and will not embarrass the latter by assuming an

antagonistic jurisdiction.’ ”) (quoting United States v. Lee, 106

U.S. 196, 209 (1882)); Spacil, 489 F.2d at 619 (“Separation- of-

powers principles impel a reluctance in the judiciary to

interfere with or embarrass the executive in its constitu-

tional role as the nation’s primary organ of international

policy.”). The determination to grant (or not grant) immu-

nity can have significant implications for this country’s

relationship with other nations. A court is ill-prepared to

assess these implications and resolve the competing con-

cerns the Executive Branch is faced with in determining

whether to immunize a head of state. Spacil, 489 F.2d at 619

(“[T]he degree to which granting or denying a claim of

immunity may be important to foreign policy is a question

on which the judiciary is particularly ill-equipped to second-

guess the executive. The executive’s institutional resources

and expertise in foreign affairs far outstrip those of the

judiciary.”).

Although our decision in Sampson was one of statutory

interpretation, we believe it is also instructive here. In Sampson

12 No. 03-3989

9

we held that the FSIA did not include an implied exception

to its general grant of sovereign immunity to foreign states

where a foreign state was accused of violating jus cogens

10

norms. Id. at 1156. Because the FSIA contained no such

exception, Germany was immune from suit brought by a

survivor of Auschwitz in the Northern District of Illinois.

Our interpretation of the FSIA confirmed that Congress

could grant immunity to a foreign state for acts that amounted

to violations of jus cogens norms. Just as the FSIA is the

Legislative Branch’s determination that a nation should be

immune from suit in the courts of this country, the immu-

nity of foreign leaders remains the province of the Executive

Branch. The Executive Branch’s determination that a foreign

leader should be immune from suit even when the leader is

accused of acts that violate jus cogens norms is established

by a suggestion of immunity. We are no more free to ignore

the Executive Branch’s determination than we are free to

ignore a legislative determination concerning a foreign state.

Cf. Hoffman, 324 U.S. at 35 (1945) (“It is . . . not for the courts

to deny an immunity which our government has seen fit to

allow, or to allow an immunity on new grounds which the

government has not seen fit to recognize.”). Pursuant to

their respective authorities, Congress or the Executive

Branch can create exceptions to blanket immunity. In such

cases the courts would be obliged to respect such excep-

9

Section 1605(a)(1) of the FSIA provides an exception to a na-

tion’s sovereign immunity in cases where a “foreign state has

waived its immunity . . . by implication.”

10

At least three other circuits have reached a similar conclusion.

See Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239,

244 (2d Cir. 1997); Princz v. Federal Republic of Germany, 26 F.3d

1166, 1173 (D.C. Cir. 1994); Siderman de Blake v. Republic of

Argentina, 965 F.2d 699, 719 (9th Cir. 1992).

No. 03-3989 13

tions. In the present case the Executive Branch has recog-

nized the immunity of President Jiang from the appellants’

suit. The district court was correct to accept this recognition

as conclusive.

C. Service of Process on President Jiang to Reach Third Parties

We turn next to Office 6/10. The appellants maintain that

service on Office 6/10 was complete when President Jiang

was served during his stay in Chicago. As recounted above,

the United States argues that President Jiang’s immunity

extends to service aimed not at him, but at a third party.

The district court rejected the United States’ immunity

argument but, nonetheless, held that service on President

Jiang was insufficient to reach Office 6/10 because the

appellants had provided only conclusory evidence that

President Jiang was, at the time of service, an officer or

agent of Office 6/10. The district court also held that “even

if Jiang was an agent or officer of Office 6/10 and thus

capable of receiving service on its behalf, such service was

insufficient to confer personal jurisdiction over Office 6/10

because the Office is not subject to the jurisdiction of Illinois

courts.”

Although the district court reached the correct result, it

erred when it rejected the United States’ argument concern-

ing the scope of President Jiang’s immunity. Because the

Executive Branch has recognized President Jiang’s immu-

nity from suit, President Jiang could not be used as an invol-

untary agent of the appellants to effect service on Office

6/10. We need not therefore consider whether President

Jiang was acting as an agent or officer of Office 6/10 or

whether the district court had personal jurisdiction over

Office 6/10.

14 No. 03-3989

We agree with the Executive Branch that its power to

recognize the immunity of a foreign head of state includes

the power to preclude service of process in that same suit on

the head of state even where that service is intended to

reach third parties.

Recognizing the immunity of a head of state and preclud-

ing service of process on a head of state are motivated by

the same concern for the effective conduct of this nation’s

foreign affairs. As emphasized above, this responsibility is

left to the political branches of this government. The

Executive Branch has represented to this court that permit-

ting service of process is often viewed by foreign govern-

ments and their heads of state “as an affront to the dignity

of both the leader and the state.” The Executive Branch has

also indicated that “the potential for insult is the same,

regardless of whether the service relates to the visiting head

of state himself, or to service on the visiting leader in some

purported representational or agency capacity.” Finally, the

Executive Branch has indicated that “[s]uch attacks on the

dignity of a visiting head of state can easily frustrate our

President’s ability to reach this Nation’s diplomatic objec-

tives . . . .” The deference we extend the Executive Branch

with regard to its determination of immunity, see pages 8-13

supra, is equally appropriate here. The Executive Branch is

better equipped than this court or the district court to assess

the consequences for our foreign policy of permitting

service of process on visiting heads of state, and it is the

Executive Branch in its dealings with China that will

confront, in the first instance, the consequences of that

11

determination. Cf. Hellenic Lines, Ltd. v. Moore, 345 F.2d

11

We want to emphasize the narrow reach of our holding. We are

not holding (and the United States did not argue) that Office 6/10

(continued...)

No. 03-3989 15

978, 980-81 (D.C. Cir. 1965) (holding that the Ambassador of

Tunisia was not properly subject to service directed to Tunisia

after the State Department informed the court that “service

would prejudice the United States foreign relations and

would probably impair the performance of diplomatic

functions.”); see also Spacil, 489 F.2d at 619 (“[I]n the chess

game that is diplomacy only the executive has a view of the

entire board and an understanding of the relationship

between isolated moves. Will granting immunity serve as a

bargaining counter in complex diplomatic negotiations? Will

it preclude a significant diplomatic advance; perhaps a detente

between this country and one with whom we are not on the

best speaking terms? These are questions for the executive,

not the judiciary.”) (internal citation omitted).

Also important to our decision is the treatment accorded

the President of the United States in his travels abroad. The

Executive Branch has stated that it would be a “great

offense if foreign states and their courts were to encourage

process servers to hound our President when he is abroad

to conduct important negotiations with his foreign counter-

parts.” Such concerns must weigh heavily in our determina-

tion that service of process should not be permitted on

foreign heads of state visiting this country in the circum-

stances of this case.

The district court pointed to three factors when it rejected

the United States’ argument. First, the district court rea-

soned that service on a head of state where that service is

directed towards a third party does not implicate the jus-

tifications for inviolability and immunity to the same degree

11

(...continued)

is entitled to immunity from this suit. That issue is not before this

court. We hold only that service on Office 6/10 could not be

effectuated by service on President Jiang.

16 No. 03-3989

as service on a head of state when that service is directed

towards the head of state himself. As we have just stated,

however, we believe the Executive Branch is better

equipped to make that determination.

Second, the district court noted that “the service provi-

sions of the FSIA suggest that personal inviolability does

not present an absolute bar to service in an agency capac-

ity.” The district court reasoned that “[b]ecause the FSIA

does not foreclose the possibility that a diplomat may re-

ceive process as an agent, the statute lends weight to the

proposition that inviolability does not bar service under all

circumstances.”

We are not concerned here, however, with “all circum-

stances” or whether there is an “absolute bar” to service of

process on a diplomat or a head of state. We are concerned

only with a narrow set of circumstances—whether a head of

state may be the subject of service directed at a third party

where the United States has recognized that head of state’s

immunity from suit in the action the service is related to, and

the Executive Branch has indicated that permitting service

would have a deleterious effect on the conduct of foreign

affairs. There may be circumstances where it is permissible

to serve a visiting head of state. For instance, the Executive

Branch may not choose to recognize the immunity of a

visiting head of state. In that case, service of process on the

head of state would be permissible to reach the head of state

himself and would, we suggest, be permissible where the

service of process is also aimed at a third party (assuming,

of course, an agency or similar relationship between the

head of state and the third party).

The third factor cited by the district court is that “heads of

state may not be immune in all situations.” Citing

McFaddon’s discussion of the exceptions to the immunity of

foreign heads of state, see McFaddon, 11 U.S. at 145, the

No. 03-3989 17

district court held that “[t]hese limited exceptions to im-

munity presuppose that a head of state is amenable to ser-

vice of process, even in instances when his presence in court

may be required. Service of process therefore cannot be seen

under all circumstances to be an affront to a head of state’s

inviolability.”

The district court is correct that there are exceptions to the

immunity a head of state (as well as a foreign nation) is

granted in this country’s courts. As we have discussed above,

however, and the district court recognized elsewhere in its

opinion, the determination that these exceptions apply to a

12

head of state is left to the Executive Branch. Likewise, the

determination that service in the circumstances of this case

would be detrimental to the Nation’s foreign policy should

be left to the Executive Branch.

III.

In this case the Executive Branch has recognized President

Jiang’s immunity from the appellants’ suit. We are required

to defer to the decision of the Executive Branch. The Executive

Branch has also determined that service of process by the

appellants on President Jiang in order to reach an intended

co-defendant in the same suit could frustrate this Nation’s

diplomatic objectives. It is appropriate to defer to that

decision as well. Because we do so, service on Office 6/10

could not be effectuated through President Jiang. We need

not reach, therefore, the question of whether President Jiang

was, at the time of service, an officer or agent of Office 6/10

or whether the district court had personal jurisdiction over

Office 6/10.

12

Under the FSIA, whether an exception applies is determined by

the Judicial Branch. As we have discussed, however, the FSIA

does not apply to heads of state.

18 No. 03-3989

We conclude by stating that we are not unsympathetic

to the appellants’ claims. For the reasons stated above,

however, we cannot permit this suit to go forward. The

Executive Branch has stated it is working to persuade the

government of China to put an end to the human rights

violations it has inflicted on its people for more than half a

century. Success depends on diplomacy, not United States

courts.

AFFIRMED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-8-04