Visitors now: 13
FSIA in Saddam Petition
The now moot petition filed on December 29, 2006 in the United States District Court for the District of Columbia In re: Saddam Hussein, docket number 1:-5MS00566, raises, inter alia, issues under the Foreign Sovereign Immunities Act.
The complaint was served on the Pentagon and the Department of State. It argues that the United States had arranged for a meeting of Saddam and his counsel on January 4, 2007 to enable the former U.S. ally's lawyers to hand him a civil complaint of October 28, 2006 which had been served on them.
Due process would require the suspension of his execution until Saddam would have had an opportunity to consult with counsel, the brief claims. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Blanket Waiver Does not Cover Embassy Accounts
A blanket waiver of sovereign immunity in the terms of government bonds marketed commercially does not affect the immunity afforded the government's diplomatic assets in Germany, the German Constitutional Supreme Court in Karlsruhe ruled on December 6, 2006 in the matter 2 BvM 9/03.
After examining American and other laws to discern the general principles of international law on the issue, the court found the inviolability of diplomatic assets paramount. A sovereign may specifically waive its immunity with respect to diplomatic assets, such as an embassy bank account. But a blanket waiver related to non-diplomatic issues does not permit the execution of judgments involving other matters into diplomatic accounts.
Such a waiver may be sufficient, however, to subject the sovereign to jurisdiction and general enforcement of judgments. The matter at bar involved bonds issued by Argentina and the attempted enforcement of a Frankfurt, Germany judgment into an Argentine bank account in Berlin. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Drunk, Stolen and no ID
What is police to do if they suspect a diplomatic vehicle to have been stolen and the driver to be under the influence when the persons within the vehicle refuse to identify themselves and to take an alcohol test? A standoff with detention could result, as Digital Chosunilbo reports on December 14, 2006 in Chinese Diplomats in Nightlong Standoff With Traffic Cops. The article examines the issues arising under Art. 29 of the Vienna Convention on Diplomatic Relations and the pragmatic solutions offered by the affected authorities. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Vienna Convention Diplomatic Immunity
Thu, / / Embassy Law Link
Troop Immunity to be Lifted
In a December 7, 2006 story, The Dispatch Online reports on a request by President Kurmanbek Bakiyev for the revocation of the diplomatic immunity afforded a U.S. soldier stationed with American troops in Kyrgyzstan. The national authorities intend to investigate the killing of a driver by the soldier at the gate to a military base leased to the United States.
An agreement between the two nations exempts U.S. military personnel from local criminal prosecution. The agreement is under review for an extension. Kyrgyzstan is particularly concerned because servicewoman Jill Metzger disappeared from the base last September which frustrated another investigation by Kyrgyz authorities. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Kyrgyzstan Troop Immunity
Tue, / / Embassy Law Link
Swedish Tax Concern
Employees of foreign embassies in Sweden complain about the imposition of an income tax, according to a December 9, 2006 report in the The Local. The situation appears to involve local hires, not diplomatic and consular staff, although the report is not clear on that issue. If that were true, the imposition of income tax on Swedish nationals would not appear particularly unusual. On the other hand, Swedish income tax imposed on foreign diplomatic and consular personnel would be a concern under the Vienna conventions. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Tax Embassy Sweden
Sun, / / Embassy Law Link
U.S. Transfers to Iraq
Two recommendations in The Iraq Study Group Report, released December 6, 2006, focus on legal issues. Recommendation 60 suggests assistance by the United States Department of Justice for the Iraqi legal system, rather than Pentagon involvement. Recommendation 61 favors supporting the build-up and reconstruction of a system of justice, including help for judges, prosecutors and marshals. Systemic support is recommended to combat corruption.
In addition to measures by Syria and Iran--which the report wants to respect the sovereignty of the Iraqi nation--, its authors want the United Nations Security Council and Germany to work with Iran in reducing the dangers resulting from Iran's nuclear program. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Iraq Corruption Iraq Study Group Report
Wed, / / Embassy Law Link
Sovereign Must Suffer Jury
A court may wrongly decide to submit civil claims against the instrumentality of a foreign state to a jury, in violation of 28 USC §1441(d). The mistake does not entitle the instrumentality to a writ of mandamus, in medias res, as Alitalia had requested In re: Linee Aeree Italiane, docket no. 06-2935.
Italy reduced its shareholdings in the airline to a minority stake after the airline had the case moved from state court to federal court. Assuming a minority ownership would remove the protection afforded the airline by the Foreign Sovereign Immunities Act, the federal court ordered a jury trial. Alitalia applied for the mandamus. It wanted a bench trial under the FSIA.
Judge Posner explained on November 27, 2006 that Alitalia may be right but a mandamus is not warranted. A jury trial may be inconvenient and costly, but any harm is not irreparable. Alitalia may avail itself of any remedies after a verdict.
-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Mandamus FSIA Jury Trial
Tue, / / Embassy Law Link
Talks as Threat to Sovereignty?
In an attempt to ease the growing tension between Fiji's government and military, the New Zealand government arranged a meeting between the Fijian Prime Minister Laisenia Qarase and army commander Commodore Bainimarama, Malaysia Sun reported on November, 28 2006. Prime Minister Laisenia Qarase had asked the Pacific Islands Forum last week to intervene after Bainimarama threatened to overthrow the government of Fiji with a military coup. The current government of Fiji was established after the 2001 elections. A coup would be the third in Fiji since the country gained independence from Britain in 1970.
However, the New Zealand government's attempt to initiate talks between the two men, and the recent visit of British and Australian High Commisioners and the US ambassador to the military camp in Suva were met with reluctance in Fiji. Army spokesman Major Neumi Leweni likened the visit to an invasion, hinting at the sovereignty concerns created by the regional attempts to resolve the dispute. Similarly,Citizen for Peace , the Fiji NGOs' coalition, stressed the need to resolve the issue through the country's own institutions without resorting to regional intervention, which would threaten the country's sovereignty and the rule of law. -- Basak Candar, Legal Assistant, Berliner, Corcoran & Rowe, LLP,Washington.
Thu, / / Embassy Law Link
Award to Capture Fugitive
A five million dollar award promised by a foreign government for the capture of a fugitive can constitute commercial activity under the Foreign Sovereign Immunities Act, the United States Court of Appeals for the Eleventh Circuit ruled in the matter Jose Guevara v. Republic of Peru et al., docket number 05-16235, on November 1, 2006.
The interim president of Peru had established the award by Emergency Decree No. 049-2001. The plaintiff delivered the fugitive into the hands of a foreign intelligence agency and then sued Peru in the United States for the award which Peru refused to pay, under theories of contract and tort.
After examining the term commercial under Supreme Court precedent established since the days of Chief Justice Marshall and the affirmation of the restrictive immunity theory by the FSIA, the court held that the award, as phrased in the decree, does not merely express sovereign policy objectives, but falls with the commercial exception to the FSIA in 28 USC §1605(a)(2).
With its decree, Peru ventured into the private marketplace for information, seeking to acquire it in exchange for payment. By contrast, use of its police forces for such a purpose would have enabled Peru to retain immunity from suit in the United States.
-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Fugitive FSIA
Sun, / / Embassy Law Link
Foreign Copyright Infringement
Last May, William Patry discussed copyright infringement by a foreign nation and the concept of a transitory tort--which, he explains, copyright is not. That issue extends beyond the foreign sovereign immunity issue. While the case against Burundi does involve the FSIA, the infringement issue in the international context concerns issues that affect also non-sovereigns. The blog entries are several months old but remain useful. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Copright FSIA
Fri, / / Embassy Law Link
Terror Exception in Detention Case
On November 21, 2006, the United States Court of Appeals for the District of Columbia ruled in Sandra J. Simpson et al. v. Socialist People's Libyan Arab Jamahiriya, docket number 05-7049, on the so-called terrorism exception to the Foreign Sovereign Immunities Act. Under the exception introduced by the Antiterrorism and Effective Death Penalty Act of 1996, hostage taking is defined as used in Art. I of the International Convention Against the Taking of Hostages, 28 USC §1605(e)(2). Hostage taking adds a mens rea element to the detention of persons.
The plaintiffs alleged that Libyan forces took them hostage as leverage against the United States and Egypt, among other things, to generate the Convention-defined third-party compulsion. The exception operates in this matter to remove the immunity from civil suits Libya might otherwise have enjoyed.
Libya failed in meeting its burden to disprove that the three statutory criteria of the exception in 28 USC §1605(a)(7)(A), (B) apply. The communication of the intent to force compulsion on third parties is not statutory requirement. If hostage-taking is sufficiently alleged, the court may infer the defendant nation's state of mind and the intentions pursued with the detention of the defendants, the appellate court held. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Hostage FSIA
Fri, / / Embassy Law Link
Direct Communications
To prevent the abduction of a Ghanaian child from Ghana, Ghana police turned to the German embassy in Accra instead of communicating through the foreign ministry or bringing the matter to court, a Graphic Ghana report charges on November 20, 2006. The main thrust of the article is that the police surrendered the sovereignty of Ghana to a foreign embassy, in violation of procedures designed to channel communications with embassies. The writer detects a pattern which harms national sovereignty. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Bush Advice Unwelcome in Texas
After the Avena ruling by the ICJ, President Bush suggested that the state courts in the United States respect the decision that reinforced the 1963 Vienna treaty requirement for consular notification of the arrest of foreign nationals. On November 15, 2006, the Court of Criminal Appeals of Texas rejected his admonition in the matter Ex Parte Jos. Ernesto Medellin, docket number AP-75,207. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Financial Irregularities
Financial irregularities at the Washington, DC, embassy of the Federated States of Micronesia have been made transparent in an audit, SmallTownPapers News Service reports on November 14, 2006. Ambassador Marehalau has returned to Yap for a report. The ambassador is apparently not at fault. Instead, a driver assumed responsibilities for web services and appears to have overcharged the embassy. The audit summarizes the problems as lack of knowledge of procedures or an intent to cover up inappropriate expenditures. The cash journal required by law was unavailable to the auditors. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
Consular Gamble
Interesting legal issues will result from the illegal gambling facility established in the Senegal consulate in Singpore. Only recently has Singpapore changed its laws to permit casinos but an illegal gambling site is punishable by a fine of up of 50,000 Singapore dollars and three years imprisonment, The China Post reports on November 5, 2006. Up to 100 gamblers visited the consulate nightly. The facility operated a small stakes room for baccarat players and another room with stakes of 100,000 Singapore dollars. The operator is said to be Singaporean, not Senegalese. As a result, immunity rules may not protect that person. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
Honorary Appointments
On November 6, 2006, the Fiji Times Online sheds some light on the criteria applied to the appointment of honorary consuls after Fijian ambassador to Washington, Jesoni Vitusagavulu, announced the new posts.
The United States is one of the countries applying restraint in the accreditation of honorary consuls. The hurdles to overcome in some countries exist to minimize abuse of appointments and involve a strict vetting process. Some nations require honorary consuls to establish offices in state capitals unless special situations necessitate the presence of such officials in other areas, such as where many nationals of the appointing nation reside or visit.
In the case of the Fijian appointments, the ambassador explained that the new appointees will be the eyes and ears on the ground for the embassy to identify trade and investment opportunities in two American business centers, Chicago and Dallas. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Call to Behead Near Embassy
A call to behead non-Muslims near an embassy in London is criminal under English law, a trial in England is set to determine, Life Style Extra reported on November 3, 2006. Allegedly, the defendant also suggested the killing of foreign soldiers in Muslim nations in response to depictions of his prophet in cartoons. Prosecutor Perry outlined the limits of freedom of speech under English law which the report recites, in large part, verbatim. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Ten Years of Advice
A Georgian law firm celebrates ten years of advice to embassies and other clients in a nation that has only a 15 year history of independence. Providing legal services with a human face is the standard that the Mgaloblishvili, Kipiani, Dzidziguri law firm applies, reports The Messenger on November 2, 2006. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Embassy Hosts Weddings
The Guardian Unlimited reports on October 23, 2006 that the British embassy in Dublin hosts civil partnership ceremonies for gays in Ireland where the law does not provide for such unions. One of the parties to the union needs to be British for the embassy policy to apply.
Mon, / / Embassy Law Link
Witness at Consulate
The illness of an expert witness in South Africa forces courts in Botswana to examine international law on how to conduct the examination of the witness, who is too sick to travel. The options being considered by the court are holding the proceedings at the Botswana High Commission in Pretoria, or examining the witness via video conference.
Botswana's Criminal Proceedings and Evidence Act, passed in 1939, fails to address the issue. Defense counsel has expressed doubts as to the legality of holding the examination Pretoria. She insists video conferencing is the correct approach.
The Director of Public Prosecutions on the other hand, stated that the court could exercise discretion in obtaining the testimony, quoting South African law reports which confirm that proceedings may be held in a foreign country. The SA International Cooperation in Criminal Matters Act, which has been adopted by Botswana, establishes the foundation for countries to cooperate in resolving criminal matters. The Act deals only with issues specific to financial crimes, however.
On October 17, 2006, the magistrate encouraged both sides to take time to research and come to a practical solution in this complex matter. -- Elizabeth Evans, Legal Assistant, Berliner, Corcoran & Rowe, LLP,Washington.
Fri, / / Embassy Law Link
Rule of Law and Diplomats
A United Nations press release of October 18, 2006 describes the relevance of the rule of law as perceived by The U.N. legal committee. Among the issues covered are the Geneva Conventions and the legal environment for the protection of diplomatic and consular missions and representatives, with a table on the pertinent conventions as of their June 20, 2006 status.
The press release lists the following as being included in the Secretary-General's report on Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives as they relate to General Assembly resolution 59/37:
The Vienna Conventions on Diplomatic Relations of 1961 and 1963;
the Optional Protocols to the Vienna Convention on Diplomatic Relations concerning Acquisition of Nationality of 1961 and 1963;
the Optional Protocols to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes of 1961 and 1963; and
the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973.
-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Largest U.S. Embassy
On October 17, 2006, AlterNet writes in Bush's Petro-Cartel Almost Has Iraq's Oil (Part Two) that the American embassy in Baghdad is the largest U.S. embassy in the world. The article discusses various sovereignty and post-invasion legal issues.
Tue, / / Embassy Law Link
Grounds for Expulsion
The wide range of reasons for the expulsion of diplomats makes the headlines this week. People's Daily Online reports on the expulsion of a Russian diplomat for espionage--a traditional basis for an expulsion. The Lithuanian president is said to anticipate a tit-for-tat expulsion of a Lithuanian diplomat from Moscow without any reason, Xinhua notes on October 10, 2006.
Contrast that with the expulsion of the North Korean ambassador which the Australian government contemplates. The Herald Sun states the reason: International indecency. Australia's foreign minister explained that North Korea dropped out of nuclear nonproliferation as the country was entitled to so that its nuclear test does not violate international law. The violation of international decency may justify an expulsion, however, and the Australian government intends to balance the pros and cons of such a response. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Foreign Affairs Pretext?
That a foreign affairs minister introduces a tax bill to introduce a value added tax system seems strange not only to Senator Buaserau of Fiji whom the Fiji Times Online reports to have asked that the bill be returned to the cabinet for resubmission by the ficance minister.
In Senator Attacks VAR Bill, Frederica Elbournce on October 5, 2006 relates the Senator's additional concern that the bill may come into force in a decree rather than a statute passed by parliament.
A further issue is whether the tax provisions had been demanded by the United States or the American Embassy in Fiji. In one of those cases, the senator proposes to use the process as precedent in negotiations with the United States.
Presumably, the American involvement is limited to reciprocal tax exemptions under the Vienna conventions on diplomatic and consular privileges. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Consul in Internal Affairs
May an honorary consul display in consular premises election materal favoring a candidate for political office in the host country? This is happening in Boston, Aron Goldstein of News By Us reports in Is the Jamaican Consulate Taking Sides in the Massachusetts Governor's Race? on October 2, 2006 and provides an analysis of the law under Article 55 of the Vienna Convention on Consular Affairs.
Goldstein notes that the consular premises are shared with a business in which the honorary consul serves as general partner. At a minimum, the facts raise the spectre of an appearance of impropriety because the consul appears to inject himself into the internal affairs of the host nation in violation of Art. 55.-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Shake Hands or Kick Out
The refusal of two prime ministers to shake hands at the White House makes news but undiplomatic, tit-for-tat expulsions of diplomats and consuls is less likely to generate them. The formal process of declaring an official a persona non grata is only an optional means of ridding a host nation of unwelcome guests. The Kashmir Herald highlights an extreme option evident in relations between Pakistan and India: Vicious assaults of a vulgar, crude and uncivilized nature. Quite effective, and cyclical, the paper reports.-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Success in Interpleader
In a complex action involving the estates of Ferdinand and Imelda Marcos as plunderers of Philippine assets, Merrill Lynch, Pierce, Fenner and Smith, Inc. v. ENC Corporation et al., docket number 04-16401, the United States Court of Appeals for the Ninth Circuit resolved the indispensable party issue with respect to the Republic of the Philippines, Arelma, Roxas and Golden Buddha in favor of human rights victims, confirming the Hawaiian district court decision on September 12, 2006. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Embassy Construction Issues
Construction of embassy, consular, and associated cultural buildings follows rules that involve not just building codes, contracts and zoning but extend into good neighborly relations, reciprocity, immunities and treaty law. Clearly, these matters involve challenges, even in seemingly simple situations such as selling an embassy property.
A situation beyond the merely challenging results from the construction of the American embassy facility in Poland. According to a Daily News/City News report U.S. Sued for Pole-Axing Old Home of September, 27, 2006, the State Department conspired with the Polish government in 1956 to deprive Jan Czetwertynski's family of its ancestral home in order to lease it to the United States for 80 years.
Czetwertynski alleges that the facts involve false allegations of espionage and now asks the United States District for the Southern District of New York for $25 million in compensation plus a tenfold amount in punitive damages.
The United States Department of State has two distinct, important offices for, and roles in, foreign construction within the United States and American construction abroad. It is hard to imagine that either of them would conspire to conquer foreign real estate for diplomatic use.
-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Practice Pointers for Consular Contacts
The Canadian Foreign Policy Newsweekly Embassy addresses on September 27, 2006 the problems faced by consular officials when communicating with detained nationals. The article, International Consular Laws Needed: Gar Pardy, comes at a time when allegations of denial or suppression of consular contacts reach a crescendo, from Australia all the way to the European Court of Human Rights.
The article by Lee Bethlaume characterizes the Vienna Convention on Consular Relations as toothless, leaving consular officers with limited means to communicate with their nationals. In the exercise of their discretion, they walk a tightrope that often cannot do justice to detained nationals nor principles of diplomacy and international relations.
Some countries may have no leverage with nations that frustrate such communications, and countries with some leverage may not be able to use it on seemingly minor matters. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
Immunity Made Simple
In simple terms, the International Herald Tribune in Diplomatic License to Misbehave explains on September 25, 2006 the legal concepts of diplomatic immunity and reciprocity, using examples of plain bad behavior and its consequences.
Mon, / / Embassy Law Link
Forged at Embassy?
The story of aircraft lost by an American lessor to a Brazilian lessee through possible forgery in the alleged notarization of contracts at the Brazilian embassy in Washington, DC, is the focus of Into Thin Air of September 23, 2006, in The Roanoke Times.
Sun, / / Embassy Law Link
Dog, FSIA and Emotional Distress
In a case that seems especially topical here in Washington, after the shooting of a dog in Dupont Circle last week, the Embassy of Russia won their appeal of damages awarded to a plaintiff who suffered emotional distress after her dog was seriously injured in a car accident involving a driver from the Embassy. The defendants--the Embassy and driver, Mr. Vladimir Kondaurov--conceded liability, and it seems that the matter would fall under exceptions to immunity outlined in the Foreign Sovereign Immunities Act, 28 USC §1605(a)(5) which states:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case...in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.
The Supreme Court of Virginia held in Vladimir Kondaurov et al. v. Eve I. Kerdasha, record no. 042077, 629 S.E.2d 181, on April 21, 2006, that the plaintiff may not recover compensation for the emotional distress. Under Virginia law, the dog is personal property. -- Elizabeth Evans, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
Evidentiary Infirmities
Refusing to appear in a civil court in the United States is an option but not an advisable one. The Republic of Sudan suffered a default by doing so, but its Canadian corporate co-defendent won a valuable dismissal in the matter The Presbyterian Church of Sudan et al. v. Talisman Energy, Inc. and Republic of Sudan, docket number 01 Civ. 9882, on September 12, 2006.
The allegations of harm to non-Muslim Africans in the Sudan are serious and may well constitute the type of harm which the Alien Tort Claims Statute, 28 USC §1350, can address. After carefully exploring bases for claims under American, Canadian, English and Mauritian law, the court found for Talisman and noted the lack of evidence connecting the defendant and the harm.
The nation defendant may have similarly found justice had it not decided to ignore the American court. Raising the issue of sovereign immunity under the Foreign Sovereign Immunities Act requires an appearance. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Promotional Fee Waiver
The visa fee has become a marketing tool. Moldova's Department of Consular Affairs announced waivers of the fee for visitors attending the National Wine Holiday in Moldova, puls.md reported on September 14, 2006. Eligibility for the waiver will be determined at embassies, border posts and the Chisinau international airport.
Sun, / / Embassy Law Link
Expulsion Rejected
In an unusual move, Australia responded to the declaration of one of its diplomats as persona non grata with its refusal to accept the expulsion. According to the Daily Telegraph of September 13, 2006, Australian High Commissioner Patrick Hole appears to have taken a stance against corruption which upset the Solomon Islands government.
Thu, / / Embassy Law Link
Evacuation and Passports
The right to diplomatic protection and to evacuation from war zones in the context of passports of convenience is the subject of a citizenship discussion in The Gates of Fear, The Tyee, of Canada, dated September 11, 2006.
Wed, / / Embassy Law Link
Tax or User Charge?
User fees are common in the United States and not deemed taxes, although they frequency replace taxes or tax revenue lost through politically motivated tax reductions. In England, the United States disputes the character of a charge intended to reduce traffic congestion in London, according to a September 11, 2006 report, US Embassy Owes $1.6 million in Unpaid Congestions Charge Fees.
Under the Vienna conventions on diplomatic and consular relations, the United States could properly refuse the payment of taxes, but not fees. The Mayor of London, Ken Livingstone is said to believe that British diplomats pay tolls and charges, as should American diplomats in London. The report notes that United States diplomats pay similar charges in Oslo and Singapore.
Art. 34 of the diplomatic convention of April 18, 1961 and Art. 49 of the consular convention contain sweeping language exempting diplomatic and consular personnel from most dues and taxes.
-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
Notification of Passport Theft
The Department of Homeland Security failed to offer foreign embassies and governments a contact to report stolen passports, the Government Accountability Office noted in a September 5, 2006 statement. GAO recommends that Congress set a deadline for DHS to establish the necessary facility. Passports from citizens of the 27 visa waiver nations are particularly desired by criminals, GAO finds, and foreign nations should be able to notify the United States of their loss. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / / Embassy Law Link
FSIA and Debt Repayment
As concerns about foreign debt repayment in Africa and Latin America increase, some scholars are pointing to the United States' own policies as facilitating defaults. A new Washington Legal Foundation Working Paper, Sovereign Debt Defaults: Cry for the United States, Not Argentina, discusses both judicial enforcement of the Foreign Sovereign Immunities Act, FSIA, and the policies of the executive branch as undermining the rights of private creditors.
The author of the September 2006 paper, Professor Hal S. Scott of Harvard School of Law, uses the example of Argentina's massive 2001 default, subsequent one-sided restructuring, and signs of new economic growth, to support the contention that the U.S. policies support foreign governments and punish private creditors based in the United States.
One of the changes Professor Scott points to is the need for reform of the FSIA and similar laws abroad to avoid regulatory arbitrage. He argues that the FSIA too strongly favors foreign sovereigns over private creditors, thereby creating a distortion in the market and encouraging over-borrowing on the part of foreign sovereigns.
To enable improved access on the part of private creditors to the assets of sovereign nations, Scott suggests broadening the commercial activities exception in the FSIA to include all business and financial transactions, other than those only a sovereign can engage in, such as collecting taxes. This would broaden the assets available for attachment.
Similarly, he would allow attachment to the stock of state owned enterprises around the world not only within the United States. Scott would enable sovereigns and central banks to waive their FSIA protection in loan agreements, so that their assets become targets for the enforcements of judgments.
Procedurally, he would require sovereign nations to be held, within reason, to the standards of private borrowers. In particular, sovereigns would be subjected to the Federal Rules of Civil Procedure, in disclosing the location of assets within the United States and elsewhere and to provide the costs and fees of subsequent litigation. These FSIA reforms would level the playing field for private creditors as supported by other suggested policy changes, the paper claims.
The concepts advocated in the Working Paper intend to make sovereign borrowers at least as accountable as private borrowers are to private creditors. Improving market discipline and market efficiency by providing clear disincentives for over-borrowing and default would improve the long term situation of both foreign nations and the U.S. financial markets. While these goals may be admirable, changes to the FSIA and related international financial mechanisms are sure to be slow, arduous and contentious. -- By Sally Laing, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Diplomats Liable for Phones
thisislondon--Evening Standard reports on September 9, 2006 that foreign office personnel from the United Kingdom may be held liable for satellite telephone charges run up by unknown thieves. The phones were apparently stolen in transit by diplomatic pouch from London to the U.K. embassy in Baghdad and used for two months before their inactivation. Five officials may be held personally responsible for charges exceeding one million dollars.
Sun, / / Embassy Law Link
Thesis: Persona Non Grata
There is no public persona non grata registry. Is that thesis accurate? According to published information, the CIA maintains a closed espionage registry. During the Cold War, Western nations routinely exchanged information on suspected and confirmed spies, whether or not they had been declared PnGs. Presumably, a similar arrangement existed in the old East. Presumably, intelligence services and foreign affairs departments kept good records. But a public registry?
There are good reasons it should not exist. A beer chugged in the wrong place at the wrong time can cause a diplomat's expulsion as easily as a retaliatory, foreign policy-based expulsion. By no means is every PnG a spy or other criminal although it does happen.
At the same time, many spies are not declared personae non gratae for foreign policy reasons--a hint to a major press outlet can be just as effective in getting rid of a spy. A public registry could confuse more than assist. After all, the Vienna Convention authorizes host nations to declare a diplomat persona non grata without explanation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / / Embassy Law Link
Embassy to Block Contracts
The Philippine embassy in Bahrain may block the processing of contracts for maid services unless the Bahrain government adopts the higher minimum wage for maids that the Philippine government proposes, the Daily News--Voice of Bahrain reports on September 7, 2006.
Thu, / / Embassy Law Link
Terror Sufficiently Alleged
Sovereign immunity is generally available to foreign nations under the Foreign Sovereign Immunities Act, 28 USC §§1602 - 1611, which protects them against suits involving sovereign activities. §1607(a)(7) of the FSIA contains an important exception for alleged terrorist involvement and eables American courts to exercize subject matter jurisdiction over such states.
In the matter Olivia Rux et al. v. Republic of Sudan, Az. 05-2003, the United States Court of Appeals for the Fourth Circuit examined the application of the terror exception in the context of the December 16, 2004 attack on the USS Cole in Yemen.
On September 1, 2006, the court held that the protection the Republic of Sudan afforded terrorist groups was sufficiently alleged by relatives of victims so that it found the terror exception to apply. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / / Embassy Law Link
Language as Visa Issue
On September 4, 2006, onlinenews.com.pk reports of protests against a Dutch law passed today that requires Pakistanis to learn Dutch before being eligible for a visa to the Netherlands and notes that there is no institution in Pakistan that teaches the language. A language test at the Dutch embassy in Pakistand is said to be compulsory.
Sun, / / Embassy Law Link
No Head, no Diplomats?
The 1990 Nepal constitution lacks a definition of a head of state, and that creates concerns for the Nepalese Parliamentary State Affairs Committee that is drafting a Bill on Approving Public Document. Left-wing legislators oppose the term head of state which may replace the term His Majesty. The drafters want the head of state language so that Nepal will have a person with the proper authority to accept the credentials of foreign ambassadors under the terms of the Vienna Convention on Diplomatic Relations of 1961, nepalnews report on September 2, 2006. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Visa Work and Compassion
Work in the visa section of an embassy tends to be exhausting, one gathers from consular personnel of most nations. In a compassionate gesture, an employer tried to help a tired deputy nonimmigrant visa chief whom FindLaw now reports as being indicted for bribery in the United States District Court for the District of Columbia. Trips to Las Vegas and New York in the company of exotic dancers could reinvigorate many a suffering office laborer. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Embassy: No Kangaroo Court
Public diplomacy will be the cornerstone of the new U.S. ambassador to Australia whose first job was to defend the U.S. legal system from an Australian perception that it allows Australian war-on-terror-detainee David Hicks to be tried in a kangaroo court:
I don't accept in any way, shape or form your view that these are kangaroo courts. The United States Congress will determine the appropriate procedures to be followed. He'll be represented by counsel. There will be more due process afforded to him than in any other military commission proceeding in history… The record of the United States in the respecting of the rule of law is better than any country in the world, The Age website reports on August 29, 2006 Robert McCallum to have stated. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Protest on Consular Access
The Indian Express describes on Augst 26, 2006 the Indian government's action to protest to the Dutch ambassador the denial of consular access to Indian detainees in Amsterdam for 24 hours in conjunction with Northwest Airlines flight 0042 which was diverted back to Schiphol last week. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Interrogation and Banishment
The interrogation of an American citizen by the FBI at the American embassy in Pakistan and his banishment from the United States is the subject of the San Francisco Chronicle article 2 Lodi Residents Refused Entry Back Into U.S. of August 26, 2006. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Mission Property Seized
The New York Times reports on August 27, 2006 on the seizure by Venezuela of diplomatic baggage destined for the United States embassy. The cargo had been transported by military aircraft and comprises household effects of diplomats as well as alleged contraband, the paper reports in U.S. and Venezuela at Odds, and Seized Cargo is Just the Half of It.
This incident follows an espionage spat earlier this month when Venezuela arrested four persons under suspicion of spying for the United States. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Passport from Consulate
A somewhat one-sided story, US Won't Give Passport to US Citizen, explains the quest of a U.S.-born British citizen for the renewal of his American passport in Kafkaesque shades. ic SouthLondon reports on August 25, 2006 on a supposedly non-responsive U.S. embassy and senator in the matter of a passport that expired in the 1970s.
The holder was born in New York City, moved to England as a child, has been refused a reissued American passport and is being rejected from flights to the United States by a British airline because the airline will fly him only with a U.S. passport. The story remains one-sided because the embassy is restrained by privacy rules from discussing details in public. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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FSIA Rulings Discussed
At FedSmith.com, Susan Smith discussed two recent FSIA rulings on August 18, 2006: Dammarell v. The Islamic Republic of Iran, docket no. 01-2224, and Greenbaum v. Islamic Republic of Iran, docket no. 02-2148, of August 10, 2006. These cases were decided by the United States District Court for the District of Columbia in application of the Foreign Sovereign Immunities Act, 28 USC §1602 et seq. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Evidence Tainted by Convention Failure
On August 24, 2006, The Australian News reports on the tainting of evidence as a result of the failure of authorities to provide a foreign suspect with access to counsel under the Vienna Convention on Consular Relations. The suspect was held, and possibly tortured, by Pakastani authorities in connection with the war on terror. Among statements cited: We cannot defend Western democratic values by destroying them. The Victorian Court of Appeal overturned the convictions of Jack Thomas. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Diplomats as Notaries
In Civil Law nations, the notary tends to be a lawyer with special privileges and sometimes subject to restrictions. A notary in Germany, for instance, is the only professional who may document a transfer of real estate. In a global economy, buyers and sellers may be abroad and the locally available notary may not be an adequate equivalent of the notary in the country where the real estate is located.
That is true, for example, in the United States where notaries tend to be non-lawyers. Like the German legislation providing for consuls to act as notaries abroad, Vietnam is now finalizing a statute which in Article 14 of the Notary Act would enable its diplomats to perform such functions, the Vietnam.net Bridge reports on August 23, 2006. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Protection for Embassy Personnel
On August 10, 2006, the United States Court of Appeals for the Ninth Circuit reversed the decision of the lower courts in the matter of
Alexsandr Nikolaevich Kashin and the United States of America v. Douglas Barry Kent, docket no. 04-56703. The civil suit brought against Douglas Barry Kent, a senior foreign service officer serving in the Far East Division of the United States Department of State, in the United States District Court was the result of a car accident in Russia. The Federal Tort Claims Act, FTCA, permits agents of the United States acting within the scope of their employment to avoid personal liability by requesting that the United States be substituted for them in a civil action. Kent was driving home from his gym at the time of the accident and requested this certification from the Attorney General and the District Court, but both had denied the request.
The appeals court reviewed both this request and the jurisdiction under which it was considered. Under FTCA, the applicable law is generally the law of torts at the place where the tort occurred. The statute is silent on what law applies when the tort occurs outside the United States. On appeal, the court found that District of Columbia law should apply. As the location of Kent's employer, D.C. law is not only a logical choice, but also provides as single body of law as well as continuity in cases of multiple defendants.
The Court of Appeals additionally disagreed with the government's denial of certification on the basis that Kent was not hired to drive or exercise at the gym. The Court found that D.C. law holds that if the conduct was of the kind one is employed to perform, within the time and space limits of the employment and was intended to serve the employer, then such employees would be acting within the scope of their employment.
The District of Columbia law also considers whether the employer had the right to control or direct the employee at the time. The court found that due to the nature of the Foreign Service--which it compared it to that of police services--Kent was on duty 24 hours a day, seven days a week and was always in contact with the State Department. The State Department also strictly controls the actions of its employees outside the workplace, regulating their personal behavior and demeanor when posted abroad.
Additionally, transporting someone at Kent's level is considered a business purpose by the State Department. The Court of Appeals also points out that Kent had decided to drive himself, rather than have the State Department incur the overtime fees of his driver, because this served the interests of the departmental budget. Further, Kent believed he was acting in the interest of his employer and within the scope of his employment.
Due to these factors the Court of Appeals granted Kent's petition for certification. The court commented that it was unclear why the United States wished to litigate such an issue against one of its own employees. Since to the tort occurred abroad, foreign sovereign immunity would ultimately protect the United States, although the media fire storm in Russia would likely persist. -- By Sally Laing, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.
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FSIA Ruling Published Tomorrow
On August 16, 2006 in Washington, DC, the Saipan Tribune publishes its August 17, 2006 report on a $61.6 billion judgment by the United States Commonwealth of the Northern Mariana Islands, CNMI, Superior Court against the State of Chuuk of the Federated States of Micronesia under local law and the Foreign Sovereign Immunities Act. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Political Interest
An exchange of notes that addresses many points of a future agreement between nations but is silent on certain aspects of the agreement cannot remove the unspoken matter from the realm of justiciable issues under the act of state and related doctrines, the United States Court of Appeals for the Third Circuit held in Eli Gross et al. v. German Foundation Industrial Initiative et al., docket number 04-2744, on August 3, 2006.
The dispute involves the issue of interest payable by German industry on its delayed contribution to the Nazi reparation settlement fund. An exchange of notes had addressed many issues but not the type of interest disputed here. Backfilling the void with an amicus curiae brief from the German government did not help, the court ruled.
The decision represents a significant defeat for German industry in that the legal peace it sought has become elusive as a result of the failure to properly address every conceivable issue in the exchange of notes before and after the conclusion of the reparations deal. In the event that the government of the United States should address the issue in its communications with the courts, the new ruling leaves open the door to the issue becoming non-justiciable. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Act of State and Recognition
In the context of an action for the recognition of an English money judgment in the District of Columbia, the United States Court of Appeals for the District of Columbia Circuit confirmed the preclusive effect of the Act of State doctrine. Defendants had argued that the English Lloyd's Act 1982 constituted an unlawful delegation of legislative and governmental power to Lloyd's.
As a result, the English judgment should not be eligible for recognition and enforcement in Washington. The Act enabled Lloyd's to force the defendants in Society of Lloyd's v. Gillian Mary Siemon-Netto et al., docket number
04-7214 , into a reinsurance program against their will, by replacing their execution of the reinsurance contract.
On August 8, 2006, the court found itself precluded from inquiring into the validity of the public acts a recognized foreign power committed within its own territory, Banco Nacional de Cuba v. Sabbatino, 376 US 398,
401 (1964). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Patent as Commercial Activity
Merely obtaining an American patent and attempting to license it subjects a foreign governmental science agency to the jurisdiction of an American court because the activities constitute commercial activity, the United States Court of Appeals for the Federal Circuit held. The commercial activity removes the foreign entity from the otherwise available immunity under the Foreign Sovereign Immunities Act, FSIA.
The Patently blog analyzes the decision in the matter of Intel Corporation, Dell, Inc., Microsoft Corporation et al. v. Commonwealth Scientific and Industrial Research Organisation, docket number 06-1032, on July 16, 2006. A commenter notes that the July 14, 2006 decision against the Australian national science agency, CSIRO, contradicts Supreme Court precedent holding that patent ownership does not constitute commercial activity in State-based 11th Amendment cases. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Consular Convention and Sanchez
Little remains of the Vienna Convention on Consular Relations of April 25, 1963 after the Supreme Court decision in Moises Sanchez-Llamas v. Oregon, docket number 04-10566, decided on June 28, 2006. The case involves the proposition that detaining authorities have to comply with the request of the detained to inform consulates of a detention. But a failure to comply with Article 36(1)(b) may not be raised after a conviction. The decision may lead to repercussions for Americans detained abroad, but less so in countries that have embodied the fundamentally American principles of the Convention in their own legal systems and learned to value them. - Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Consular Notification Before Court
Two Vienna Convention cases on the issue of consular notification upon an arrest by state officials are scheduled for argument at the United States Supreme Court in Washington on March 29, 2006. The cases are Moises Sanchez-Llamas v. Oregon, 04-10566, and Mario Bustillo v. Gene Johnson, 05-0051, and have implications for Americans arrested abroad and foreign visitors arrested in the United States.
In both instances, communicating with consuls is an important treaty right afforded by Art. 36 of the Vienna Convention on Consular Relations of April 24, 1963 (21 U.S.T. 77, 100-101).
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Collecting Award from Sovereign
The March 6, 2006 Wall Street Journal recounts on page A6 the story of a German businessman's collection efforts against the Russian Federation after the sovereign refused to pay on an arbitration award granted for the expropriation of property in Russia during the early 1990s gold rush. Having overcome sovereign immunity issues, hurdles in the form of litigation expenses and political barriers, Franz Sedelmayer is considered one of the few western victims to have recovered compensation for capricious Russian acts.
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U.S. Jurisdiction: French Nazi Liability
The March 1, 2006 complaint in the class action matter Mathilde Freund et al. v. The Republic of France et al., docket number 06 CV 1637, has been published by Findlaw on March 3, 2006. The complaint alleges acts by the French Republic, its railrod SNCF, and its bank Caisse des Depots et Consignations entitling plaintiffs to compensatory and punitive damages, an accounting, return of property as well as equitable disgorgement of profits.
The alleged liabilities are said not to be barred by the statute of limitations because plaintiffs believe that crucial information was unavailable until the conclusion of an investigation began in 1997 by a Matteoli Commission into the French Holocaust history. The alleged misconduct continues, plaintiffs argue, and the French defendants have not reasonably attempted to undo the harm done.
Jurisdiction over France, defined as a foreign state under 28 USC §1603(a), is alleged under the Foreign Sovereign Immunities Act, 28 USC §§1605(3), 1330, and 1602 and violations of international law. Jurisdiction over SNCF and CDC are alleged under the Alien Tort Claims Act, 28 USC § 1350. Supplemental jurisdiction is claimed as being based on 28 USC §1367.
Personal jurisdiction is alleged to derive from France's advertising for tourism and business in New York as well as the defendant's ownership of residential and commercial property in the state. SCNF is said to submit itself to jurisdiction in the state by selling tickets there. The exercise of personal jurisction over CDC is suggested because the defendant does business in the state.
The French Embassy website in Washington contains information on Decree 2000-657 of July 13, 2000 which appears to point to compensation having been made available to French Nazi victims and explains the required administrative process. A July 14, 2000 decree numbered 142 provides for additional compensation. - Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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Pope Dismissed from Civil Suit
On December 22, 2005, Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas dismissed Pope Benedict XVI from a civil suit filed against him and the Roman Catholic Dioceses of Galveston-Houston. A Suggestion of Immunity filed by the United States Department of State was sufficient to deprive the court of jurisdiction over Pope Benedict. The determination by the State Department that Pope retains absolute immunity is not subject to additional review in the Federal Court system according to Rosenthal's Opinion.
The civil suit, John Doe et al. v. Roman Catholic Diocese of Galveston-Houston et al., docket number H-05-1047, revolves around the alleged abuse of three unnamed plaintiffs in the mid-1990s by a seminary student, Juan Carlos Patino Arango. According to the Complaint, the abuse was concealed by the Archdiocese of Galveston Houston, Archbishop Joseph Fiorenza, Monsignor William Pickard and Cardinal Joseph Ratzinger, then the Prefect of the Congregation for the Doctrine of the Faith responsible for investigating sexual abuse allegations.
The plaintiffs claim Cardinal Ratzinger, who became Pope in 2005, played a central role in developing and implementing strategies to conceal abuse scandals. They cite a letter written by Ratzinger in 2001 referring to a 1962 document called the Crimen Sollicitationes, guidelines for dealing with sexual abuse allegations. According to the Plaintiffs, these documents point to an on-going conspiracy within the church to cover up such incidents.
The Court determined that despite these allegations taking place prior to Cardinal Ratzinger becoming the Pope, his head of state immunity is sufficient to warrant a diplomatic rather than judicial resolution to such matters. - By Sally Laing, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
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