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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Immunity Made Simple

In simple terms, the International Herald Tribune in href="http://www.iht.com/articles/2006/09/25/opinion/edwright.php" target="_new">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.