Visitors now: 13
Confusion in Diplomacy
Treason, espionage, whistle-blowing or personnel sqabbles at the embassy of Liberia in Washington? An allAfrica.com article of December 20, 2007, Liberia Embassy in Washington DC Astir, allows all of these conclusions from the report of a recent escalation of events at that embassy. Homeland Security, diplomatic immunities, embassy access, disclosures to enemies of the state, retaliation and other factors render a confusing picture. Some may have interesting legal implications. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Convicted for Embassy Siege
On December 20, 2007, The Tocqueville Connection reports on the conviction by a Japanese court of a Red Army supporter who helped coordinate a siege of the French embassy in the Netherlands in 1974. The defendant's involvement in the hostage-taking at the embassy led to a sentence of 20 years imprisonment which the Tokyo High Court now upheld. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Trash, Loot, Art, Ownership
Ancient trash as modern art is the subject of litigation in many countries. Iran just won a ruling in London requiring the return of artifacts from an art dealer, the International Herald Tribune reports in UK Appeals Court Reinstates Iran's Claim to Art it Says was Looted, on December 21, 2007. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Disclosure: The author's partner, Thomas G. Corcoran, Jr., represents Iran in similar matters in the United States.
Sat, / / Embassy Law Link
Assault at British Embassy
A by-product of research for the previous entry: After a well-attended February 11, 1964 concert at the Washington, DC Coliseum where almost 8,000 admirers out-shouted the Beatles, the British Embassy received the group on Massachusetts Avenue. There, a large lock was cut off from Ringo Starr's hair which prompted an apology from the Ambassador's wife:
I really am terribly sorry about the scene in the ballroom. The Beatles Ultimate Experience recalls Ringo's comment: These diplomats just don't know how to behave. Fourty years later, the number would likely be 80,000 and the lost hair would prompt a lawsuit. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
British Council non grata
Expulsions by declaring a diplomat persona non grata occur quite infrequently. As discussed here
before, other means exist to make an undesired official leave, and the official declaration is sometimes considered a measure of last resort. As such, it can invite tit-for-tat reprisals.
Currently, the British cultural institution, British Council--also prominently listed on the British Embassy's web site in Washington, DC--finds itself the target of retaliation in Russia. 20 Russians would lose their positions with the organization, the Guardian reports on December 13, 2007 in Russia Orders British Council Offices to be Shut Down.
Russia claims that the council operated illegally and violated tax laws as well as the Vienna Convention on Consular Relations of 1963, the paper continues. In Washington, numerous cultural and scientific organizations operate and complement traditional activities of embassies. Many lack the accreditation of diplomats but may utilize A-2 visas and are subject to the tax laws in the United States, including those of localities.
The alleged violation of the convention relates to the operation of the British Council out of British consulates, Russian foreign ministry spokesman Mikhail Kamynin reportedly explained. Russia's foreign minister, Sergei Lavrov, admitted that the closing was ordered in response to Britain's expulsion of Russian diplomats last July. On December 14, 2007, the Times of Malta reports that Russia called the British response to the closings provocative.-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Missed Consular Notification
The failure to notify the Mexican consulate of the Californian detention of a suspected criminal of Mexican nationality did not adversely affect his legal rights, the California Supreme Court decided in The People v. Martin Mendoza, docket no. S067678.
The court grappled with the Vienna Convention on Consular Relations issues presented by the 2004 Avena ruling of the International Court of Justice and its requirement that national courts review violations for prejudice caused a defendant, supra at 29 et seq.
On November 29, 2007, the court confirmed the conviction and death sentence but opened the door to a habeas corpus proceeding in which evidence on prejudice may be presented. The court took note of the pending United States Supreme Court review in Ex Parte Medellin (Tex.Crim.App. 2006) 223 S.W.3d 315, cert. granted Apr. 30, 2007, sub nom. Medellin v. Texas, No. 06-984, __ U.S. __ (127 S. Ct. 2129; 167 L. Ed. 2d 862). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Health Care Reforms Embassies
For foreigners from non-English-speaking nations, communicating health issues to physicians is not an easy task and a deterrent to seeking medical care. In addition, the health care system is confusing and the cost not transparent.
To mitigate resulting adverse effects on their nationals' health, Latin American nations are now instituting medical services at consulates in the United States, the Washington Post reports on November 19, 2007. Mexico is said to plan the provision of health care to all Mexcians regardless of where they are, the Post notes.
This development may raise interesting issues under the FSIA when the patients are not diplomatic personnel. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / / Embassy Law Link
Enslavement by Diplomats
Accusations of enslavement of domestic workers by diplomats form the basis of a petition filed November 15, 2007 with the Inter-American Commission on Human Rights in Washington, DC. Allegations of abusive treatment of visa dependents in the homes of diplomatic personnel are not unique to the United States but the new action takes the issue to a new level at the intersection of human rights treaties and the Vienna conventions on the privileges and immunities of diplomats as well as the protection afforded them through the Foreign Sovereign Immunities Act.
Supported by the American Civil Liberties Union, together with Global Rights and the Immigration/Human Rights Clinic of the University of North Carolina School of Law, the petitioners complain in their 136-page submission of complicity by the United States in their enslavement by defeating judicial redress of the rights of victims employed in the United States.
By upholding one set of treaties to protect diplomats at embassies, consulates and international organizations, the United States is said to violate its human rights obligations under other treaties. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Host Country Issues Concern United Nations
The United Nations Committee on Relations with the Host Country presented its annual report through the Sixth Committee (Legal) November 12, 2007. Visa issuance by the host country and parking for diplomats were among the main issues.
Considering the preservation of appropriate conditions for the normal work of delegations and the observance of diplomatic privileges and immunities to be in the interest of the United Nations, the General Assembly requested the United States as host country to take all necessary measures to maintain smooth functioning of diplomatic work for the U.N.
The report outlines several specific areas relating to transportation and security in which the United States could improve. The representative of the Russian Federation was particularly concerned with issues relating to new parking fees imposed on diplomatic vehicles at JFK Airport and ensuring that New York authorities complied with rules exempting diplomatic missions from U.S. taxes.
The Committee also recommended that the application time for visa issuance by the host country for Member States be shortened. The current time frame is reportedly inhibiting the full participation of the Member States in U.N. meetings.
Additional draft resolutions concerning diplomatic protection, criminal accountability of United Nations officials and experts on mission, the responsibility of States for internationally wrongful acts, the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization were also introduced at the meeting along with a report on the United Nations Programme of Assistance on the appreciation of international law. More specific coverage of the meeting can be found at the United Nations website. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Embassy Attacker in Yemen gets Jailtime
On November 12, 2007, the Primary Penal Court in Sanaa sentenced Saleh Alawi al-Amari to five years in jail for shooting at the United States Embassy in Yemen. As reported in Newsyemen.net, Saleh had fired an automatic weapon at the building the previous December in what the prosecutor described as protest against U.S. policies in Iraq and Afghanistan. Saleh also resented U.S. support for the Israelis in Lebanon and Palestine. The court, headed by Judge Mohsin Alwan, found Saleh guilty, noting that Yemeni law prohibits such attacks against foreigners. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
FSIA Protects National Oil Company
The United States Court of Appeals for the Second Circuit ruled October 18, 2007 that Congo's national oil company was immune to the charges of racketeering. Originating in 2005, Kensington International Limited v. Société Nationale des Pétroles du Congo, et al., docket no. 05 Civ. 5101 (LAP), involves claims against the company, its former Chief, Bruno Jean-Richard Itoua, and French bank BNP Paribas. According to the ruling, the defendants attempted to redirect oil revenues from the Republic of Congo to Congolese public officials, while keeping oil and revenue from seizure by legitimate creditors.
The appeal from SNPC and Itoua, docket nos. 06-1763-cv (L) and 06-2216-cv, came after a 2006 decision by U.S. District Judge Loretta Preska in Manhattan denying the defendants' motion to dismiss under the Foreign Sovereign Immunities Act. She found that the commercial activity exception to the FSIA annulled any immunity to which the defendants were entitled.
The commercial activities exception, 28 USC §1605(a), states that a foreign state does not enjoy immunity in any case that the action is based upon commercial activity in the United States or causes a direct effect in the U.S. The appeals court agreed with SNPC and Itoua that the commercial activity abroad did not have direct effect in the United States. However, the appeals court remanded the case to the district court to consider whether the FSIA applies to individual officials, such as Bruno Jean-Richard Itoua. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
Sanctions for Foreign Service Dodgers
A peek into the assignment of embassy assignments by the United States Department offers an AP report of October 27, 2007, US to Order Diplomats to Serve in Iraq. The largest American embassy in a war-zone will no longer be staffed by volunteers. Instead, the administration of the Foreign Service resigned itself to assigning unarmed civilians into a combat zone [which] should be done on a voluntary basis, as a speaker for employees put it.
Sanctions await dodgers, the report continues. As stated on State's career site, the department is a #3 Ranked Ideal Employer but that designation is absent from the Foreign Service Office page. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Notarization at Embassy
In plain terms, Dan Melson explains on September 30, 2007 the notarization of the Power of Attorney for Real Estate Transactions. In the international context, he discusses the pros and cons of seeking the assistance of embassies for notarizations. Embassies in Washington provide that service for foreign properties just as American embassies do so abroad for transactions involving U.S. real estate. The appropriate official to contact is the consul.
Mon, / / Embassy Law Link
Born in Jerusalem
Of possible tangential value to embassies and consulates is the United States District Court for the District of Columbia decision of September 19, 2007 in the matter Menachem Binyamin Zivitofsky et al. v. The Secretary of State, docket number 03-1921.
The plaintiff seeks to enforce a federal law permitting Israel to be listed in his passport as his place of birth under authority of §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, 1365-66 (2002).
The court dismissed the complaint as presenting a non-justiciable political question because President Bush expressed an opinion which entered into the defendant's Foreign Affairs Manual, 6 FAM §1393.1(b), see Statement by President George W. Bush Upon Signing H.R. 1646, 2002 USCCAN 931, 932 (Sept. 30, 2002).
Under the statement, the congressional mandate operates as an impermissible interference in presidential authority to conduct the foreign affairs of the United States, and the executive refuses to list Israel in passports of American citizens born in Jerusalem. The history and significance of the ruling are explained in ZOA Dismayed By U.S. Court Ruling. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Seizure of Embassy
A default judgment against Kenya resulted in the seizure of the Kenyan embassy in The Hague, The Nation reports on September 15, 2007 in Kenya: Cases And Contract Cash That Could Go Down the Drain. The article is long on factual reporting and short on legal detail. The plaintiff appears to be a Nederman company, and the Kenyan attorney-general is said to have now authorized legal representation for the defendant nation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Iran - Hezbollah Default Judgment
The record default judgment against a foreign nation by an American court in excess of $2.6 billon in the matter Deborah D. Peterson et al. v. Islamic Republic of Iran et al., docket number 01-2094, has been published on the web site of the United States District Court for the District of Columbia, with an opinion, both dated Sepember 7, 2007. The court examined sua sponte the issues arising under Foreign Sovereign Immunities Act. President Reagan had sent the victims to Lebanon where they were killed or maimed on October 23, 1983 in a then-unusual attack. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Gated Immunity in Manila
In Spouse of German envoy urged to pay for property damage--Embassy says hubby enjoys diplomatic immunity, Veronica Uy explains a dispute between a Philippine property owner and the spouse of a diplomat whose car damaged a gate.
Reportedly, the driver acknowledged liability to police and promised compensation but payment did not follow. When the embassy expressed its understanding that immunity applies, the owner obtained a contrary opinion from the Manila Department of Foreign Affairs on the Vienna Convention on Diplomatic Relations issue.
An informal departmental opinion notes different treatment in criminal and civil matters. The department would make a recommendation to the court after the owner requests its intercession, the Global Nation article reports on September 7, 2007. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Twists, Turns and Anti-Suit Injunctions
Only peripherally mentioned, as an interest party, is a foreign state in the arbitration and anti-suit injunction decision rendered by the United States Court of Appeals for the Second Circuit on September 7, 2007 in the matter Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina),, docket number 07-0065.
The appellate ruling follows litigation in Switzerland, Texas, Indonesia, the Cayman Islands and New York to enforce and vacate a Swiss arbitral award under the New York Convention, Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 21
UST. 2517, 330 UNTS 38, 9 USC §§201-208.
The court upholds an anti-suit injunction by applying the test set forth in China Trade & Development Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987), even after the satisfaction of the money judgment, by distinguishing the facts from the recent Eigth Circuit anti-suit injunction ruling in Goss International
Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355 (8th Cir. 2007). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
No U.S. Effect in Foreign Bids
Quoting the United States Supreme Court, … an effect is direct if it follows as an immediate consequence of the defendant's activity, in Republic of Argentina v. Weltover, Inc., 504 US 607, 618 (1992), the United States Court of Appeals for the Sixth Circuit affirmed the dismissal of a bid protest by an American telecommunications company filed in a United States court.
The bidder had paid a bidding fee to the Republic of Lebanon from an American account. In American Telecom Company, LLC et al. v. Republic of Lebanon, docket number 05-2408, the appellate court decided on August 29, 2007 that the payment does not equal a direct effect in the United States.
The dispute could not fall within the exception for commercial activities under the Foreign Sovereign Immunities Act, it ruled, and deserved dismissal. If Congress would have wanted every foreign governmental tender to fall within the exceptions of the FSIA just because of a fee payment from an American bank account, it would have said so, the court concluded. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
Consular Relations in Law School
As students return to law school and new generations find fascination or frustration in international law, we are likely to see more leaks from courses on diplomatic and consular relations as well as treaties and conventions. An example is an August 31, 2007 summary of facts and strategies in the Medina case. Jeff Vagle of the tractatus.org blog reminds defense counsel that a failure to invoke the foreign client's rights under the Vienna Convention on Consular Relations to ensure consular notification constitutes malpractice. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Security Breaches Affect Privacy
How many email accounts exist at embassies and foreign ministries? Is the breach of 100 such accounts significant? It certainly is, especially if that number represents the tip of the iceberg. On August 31, 2007, Vnunet.com reports of the online posting of account data for more than 100 email accounts belonging to agencies such as the foreign office in Tehran, the Indian embassy in Washington and the British visa office in Kathmandu.
Dan Egerstad, the security consultant who discovered the information by accident, told vnunet that he did not access the accounts because he did not want to break the law. The implied failure of technical and administrative safeguards has major implications for confidentiality and privacy expectations as well as data protection laws. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Father Resigns, Son's Immunity Waived
The alleged sins of the son lead to the resigation of his diplomat father, the respected Sunday Times of Malta reported on August 19, 2007. The Maltese ambassador to Ireland's adult son is apparently the target of a police investigation in Ireland. As a precaution, the diplomat resigned and the son's diplomatic immunity under the Vienna Convention on Diplomatic Relations has been waived. Malta takes a refreshing approach. More frequently, the press notes refusals to resign -- which resignations are even rarer when faults of relatives are at issue -- and refusals to waive immunity. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Sri Lankans in Saudi Arabia
In Saudi Arabian Human Rights Commission Takes up the Case of Rizana Nafeek, Walter Jayawardhana discusses the issue of Sri Lanka not intervening on behalf of its citizens awaiting the death penalty in Saudi Arabia. The article notes that Sri Lanka signed the Vienna Convention on Consular Relations and, therefore, should be able to respond to a consular notification by Saudi authorities.
The article does not explain, however, whether Saudi authorities notified the Sri Lankan consul under the treaty before proceeding with criminal prosecutions. Five persons including a young girl whose inexperience in child care resulted in the death of an infant, are said to have been sentenced to death by beheading, Lankaweb reports. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
FSIA and Local Hires
An employee at an embassy found $2 million missing, but after the plot was straightened out, the minister in charge had him fired from his accounting position and from his next job. May an American court hear the non-diplomat who sues the embassy and the foreign government under the Foreign Sovereign Immunities Act?
The July 27, 2007 opinion in Mohammed Salem El-Hadad v. United Arab Emirates et al., docket number 06-7075, examines the issue in ways that will also be useful in assessing the restrictive nature of the FSIA in relation to local hires at embassies, consulates and similar institutions.
In it, the United States Court of Appeals for the District of Columbia Circuit highlights differences in the construction of the act by several courts with regard to various types of positions often filled by local hires. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
ICJ Guidance on Consular Notification
In Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights, Carsten Hoppe analyzes the differences between the United States and German courts in the deference and consideration afforded decisions of the International Court of Justice in The Hague in consular notification matters after the LaGrand and Avena cases under Article 36 of the Vienna Convention on Consular Relations.
Hoppe observes an abrasive attitude by the United States Supreme Court in its recent Sanchez-Llamas v. Oregon decision which he contrasts with the deferential treatment of the ICJ by the German constitutional court in Karlsruhe. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
NOPEC Immunity Issue Resurfaces
OPEC nations take note! A July 6, 2007, Wall Street Journal article, Why Bid to Allow Lawsuits Against OPEC May Fly, describes a bill currently making its way through Congress that would permit OPEC member nations to be sued under U.S. antitrust laws, thus stripping them of the immunity afforded by the Foreign Sovereign Immunities Act.
The bill was drafted by Sen. Herbert H. Kohl (D-Wis.) in 2000 and the U.S. House of Representatives approved it in May 2007. It is apparently now receiving significant backing in the U.S. Senate as well. Under the bill, being called NOPEC, OPEC members no longer would enjoy sovereign immunity in price-fixing suits by the U.S. Department of Justice; see Monroe Leigh, International Association of Machinists and Aerospace Workers v. OPEC, 76 Am. J. Int'l Law 160 (1982); 649 F.2d 1354 (9th Cir. 1981); Andrew Udin, Slaying Goliath: The Extraterritorial Application of U.S. Antitrust Law to OPEC, 50 Am.U.L.R. 1321 (2001).
A burning question, then, is whether President Bush would veto the bill, considering the potential foreign relations problems, as well the potential for U.S. oil supplies to be disrupted or cut off. A similar bill, S. 555, went nowhere in 2005. -- Laina Wilk, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / / Embassy Law Link
Private Cause of Action Under Treaty of Amity
On July 18, 2007, the United States District Court for the District of Columbia rejected the United States Government's interpretation of the Treaty of Amity between the United States and Iran, and affirmed an earlier decision allowing American plaintiffs to sue Iran in U.S. courts under Article IV(2) of the Treaty: McKesson Corp. v. Islamic Republic of Iran, No. 82-00220, slip op. at 32 (D.D.C. July 18, 2007).
Following the District Court's 1997 decision, the Solicitor General filed a Statement of Interest with the D.C. Circuit Court of Appeals, arguing that foreign nationals may only enforce their Treaty of Amity-based rights in the territory of the other Contracting Party. The Solicitor General feared that the District Court's 1997 decision would lead to a floodgate of unwanted and unbargained-for suits in foreign countries against the United States if other treaties were similarly interpreted; McKesson, at 32.
However, despite the fact that both the United States and Iran agreed about the proper interpretation of the Treaty, the District Court refused to defer to the Executive Branch's interpretation, and declared that it was at odds with the plain meaning of the Treaty's language. Therefore, the District Court affirmed the U.S. corporation's cause of action against Iran in the District of Columbia. -- Jason A. McClurg, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / / Embassy Law Link
Asylum Not a Sure Thing
Embassies are perceived as safe havens for refugees. Hundreds of East Germans sought asylum at the West German embassies in the Czech Republic and Hungary at the end of the Cold War. Embassies and consulates are not required by law, however, to provide relief. Danish law, for instance, does not allow people to seek asylum from a Danish embassy, The Nation Breaking News reported on July 14, 2007 in connection with four North Korean nationals entering the Danish compound in Vietnam. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Undiplomatic Crimes
Bashing diplomats is always popular when news dries up. Recently, Canadian and British papers listed statistics and described, in general terms, procedures for dealing with misbehaving diplomats. As the Canadian London Free Press acknowledges, most diplomats take their roles seriously and are model visitors in their host countries. It is their special status that provokes a strong public reaction, despite diplomatic crimes being a rarity.
On July 4, 2007, the London Free Press reported that over the past 15 months, Canada has seen numerous criminal offenses involving foreign diplomats and their staff. These crimes range from possession of crack cocaine and solicitation of prostitution, to bribery, conspiracy and production of child pornography.
In Britain, the Daily Mail reported unlawful behavior by foreign representatives as well. On July 1, 2007, the paper states that diplomats allegedly committed 30 serious crimes over the past two years and that seven Saudi diplomats have been forced to leave the country the past decade. And while they are not quite as free as the Daily Express suggests to rape, rob and murder in [the] UK, arresting diplomats is somewhat of a challenge.
Police have no legal authority to make an arrest without a waiver of diplomatic immunity from the diplomat's home country, the Daily Express observes. Marie-Christine Lilkoff, a Foreign Affairs spokesperson for Canada, told the London Free Press that when an offense is committed, the country must request a waiver so that the person may appear in court and be sentenced under Canadian law if found guilty. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Embassy Records -- What Privilege?
Embassy banking records in the hands of investigators as a result of the Riggs banking investigation: That raises complex issues when the records are now being used in an investigation of the former ambassador to the United States from Saudi Arabia. In US Inquiry Undermindes British Stance on BEA, the Guardian Unlimited puts the issue in context.
A British inquiry by the Serious Fraud Office into allegations of corruption had been dropped. Now, the United States Department of Justice picked it up. According to the paper, the British government decided to avoid embarrassment to Prince Bandar, presently national security adviser to the Saudi king, who is said to have been compensated
for his role in facilitating an arms transaction.
Aside from potential FSIA issues, the June 26, 2007 article points to questions arising under money laundering statutes and the Foreign Corrupt Practices Act. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
Expropriated Bank Accounts Not FSIA-Owned
On June 22, 2007, the United States Court of Appeals for the District of Columbia Circuit confirmed in Hiwot Nemariam et al. v. Federal Democratic Republic of Ethiopia et al., docket number 05-7178, the dismissal of a class action complaint for lack of subject matter jurisdiction.
In examining the Foreign Sovereign Immunities Act with respect to the government-operated central bank of Ethiopia, the court held the plaintiffs to have failed in showing that the central bank owned or operated bank accounts seized from expelled Eritrean plaintiffs during a conflict between Ethiopia and Eritrea. In addition, the plaintiffs failed to meet the rights in property requirements of 28 USC §1605(a)(3) for their unlawful takings claim against the republic and the bank.
The decision follows extensive jurisdictional discovery under the FSIA and a prior path to the D.C. circuit court which in 2003 reversed a dismissal on the basis of forum non conveniens, Nemariam v. Fed. Dem. Pub. of Ethiopia, 315 F.3d 390 (DC Cir. 2003). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Lay off United Nations Missions
In a somewhat mysterious report, NAM Tells US Lay off UN Missions, Prensa Latina reports on a Nan-Aligned Movement protest against restrictions imposed by the United States on diplomats and officials from some UN member countries in violation of international law and conventions.
The June 19, 2007 article does not reference any particular action by the United States except to say that the Agreement on the Venue is affected.
The State Department website has two recent documents that may or may not relate to the protest: An excerpt from the foreign affairs manual on Immunities and Liabilities of Foreign Representatives which is of general interest to embassy, consular and international organization administrators; and a document on barring the participation of sex offenders in United Nations missions. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / / Embassy Law Link
India Loses NY Tax Case
On June 14, 2007, the United States Supreme Court ruled in favor of New York City in confirming jurisdiction over India's Permanent Mission in a property tax matter. The mission had housed personnel at tax-exempt diplomatic properties. The city had allocated apportioned property tax claims for the properties and sought to enforce its resulting tax liens. To confirm jurisdiction under the Foreign Sovereign Immunities Act in the matter Permanent Mission of India to the United Nations at al. v. City of New York, docket number 06-134, the court applied the FSIA exception of 27 USC §1605(a)(4) to rights in immovable property situated in the United States. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / / Embassy Law Link
Plaintiff May Attach Iranian Default Judgment
The Ninth Circuit Court of Appeals recently ruled in The Ministry of Defense and Support v. Cubic Defense Systems, 2007 U.S. App. LEXIS 12434 (9th May 30, 2007), that the brother of an Iranian-born U.S. citizen can attach a judgment owed by an American company to Iran as partial payment for a $311 million default judgment that the plaintiff obtained against Iran for the alleged wrongful death of his brother.
Cyrus Elahi was shot and killed as he left his apartment in Paris, France, on October 23, 1990. His brother, Dariush Elahi, brought a wrongful death action against the state of Iran and the Iranian Ministry of Information and Security, "MOIS", in the United States District Court for the District of Columbia, claiming that Iranian agents assassinated his brother. Although Iran and MOIS did not appear before the court, the district court judge determined that Iran and MOIS were liable for Cyrus Elahi's death, and entered a default judgment for $11.7 million in compensatory damages and $300 million for punitive damages. Ministry of Def., 2007 App. LEXIS 12434, at *3.
In a 2 to 1 split decision issued on May 30, 2007, a Ninth Circuit panel ruled in favor of Dariush Elahi, allowing him to move forward in collecting part of the default judgment he holds against Iran by filing a lien against a $2.8 million judgment the Iranian Ministry of Defense, "MOD", had previously obtained against a California-based company. In 1977, the Iranian Ministry of Defense entered into a contract with American defense contractor, Cubic Defense Systems, "Cubic", for the sale and service of Air Combat Maneuvering Range, "ACMR". ACMR was intended to be used by the Iranian Air Force. Although Iran made partial payments on the AMCR, Cubic failed to deliver, and following the Iranian Revolution of 1979, Cubic breached the contract with MOD, and sold the ACMR to another party. Iran subsequently requested arbitration before the International Chamber of Commerce, "ICC", and the ICC ordered Cubic to pay $2.8 million in damages to Iran for breach of contract. Iran then reduced the award to a judgment in the U.S. District Court for the Southern District of California.
On November 1, 2001, Dariush Elahi sought to attach the Cubic judgment in the Southern District of California. MOD immediately filed a motion with the district court seeking a judicial determination that the Cubic judgment was immune from attachment by Elahi. However, U.S. District Judge Rudi M. Brewster denied MOD's motion, and ruled that Iran had waived its immunity from attachment. MOD appealed, and the Ninth Circuit affirmed the district court's decision in October 2004. MOD thereafter appealed to the United States Supreme Court.
The Supreme Court granted certiorari on the limited question of whether MOD constituted a foreign state, or whether it is an agency or instrumentality of a foreign state. This distinction is important because the Foreign Sovereign Immunities Act, "FSIA", offers broader immunity from attachment to a foreign state than to a foreign state's agencies and instrumentalities. Because the Supreme Court determined that the Ninth Circuit had not properly determined that MOD was an agency or instrumentality of Iran rather than the foreign state itself, the Supreme Court remanded for reconsideration.
On remand, the Ninth Circuit held that Elahi failed to overcome the strong presumption that MOD constitutes part of the state of Iran and hence is not an agency or instrumentality. Further, the panel held that Iran had not used the Cubic judgment for a commercial activity in the United States and therefore the judgment was not subject to attachment under FSIA §1610(a). Ministry of Def., 2007 U.S. App. LEXIS 12434, *31-32. The panel also determined, however, that Elahi could attach the judgment under the Terrorism Risk Insurance Act, "TRIA", of 2002, Pub. L. No. 107-297.
In 2000, the Victims Protection Act, "VPA", Pub. L. No. 106-386, was enacted, creating a $400 million fund to compensate victims of Iran and Cuba-sponsored terrorism. Although Elahi was not originally eligible for payment under the VPA, because he did not receive a final judgment against Iran until three weeks after the July 2000 cutoff date established by the statute, Elahi became eligible two years later when the VPA was amended by the TRIA. Under §201(c)(4) of the TRIA, Elahi and others who had filed suit before October 28, 2000, became eligible under the VPA to receive pro rata payments of compensatory damages from the fund. However, receipt of such payments was conditioned upon the victims relinquishing certain rights, including the right to execute or attach property that is at issue in claims against the United States before an international tribunal. VPA §2002(a)(2)(D) (as amended by TRIA §201(c)(4)).
In 2003, Elahi applied for and received $2.3 million as his pro rata share of the compensation fund from the United States Treasury in partial satisfaction of his $11.7 million compensatory damages award against Iran. In receiving his payment, Elahi signed a declaration in which he relinquished his right to collect punitive damages and his right to execute against or attach property that is at issue in claims against the United States before international tribunals. After receiving compensation from the fund, Elahi also attempted to attach the $2.8 million judgment held by Iran against Cubic to cover the outstanding amount of compensatory damages still owed.
However, both the Iranian government and the United States argued in supplemental briefing to the Ninth Circuit that Elahi had waived his right to attach the Cubic judgment under the VPA because it related to property that is at issue before an international tribunal, and thus the Cubic judgment was not subject to attachment. Iran had previously brought a claim against the United States in the Iran-U.S. Claims Tribunal, Claim B/61, for damages based on the non-export of contracted-for goods, including the ACMR that was the subject of the Cubic Contract. Iran argued before the Iran-U.S. Claims Tribunal that the $2.8 million ICC award did not fully compensate it for Cubic's non-delivery of goods, and sought to recoup the difference from the United States. Therefore, because the claim is still before the Claims Tribunal, both the United States and Iran argued to the Ninth Circuit that the Cubic judgment is property that is at issue in claims against the United States before an international tribunal, and is thus not subject to attachment.
The Ninth Circuit panel disagreed with the two governments and found that the question of whether Elahi could attach the Cubic judgment was a separate matter from Iran's claim against the United States, and thus was not at issue before the Claims Tribunal. Therefore, the Ninth Circuit held that Elahi did not waive his right to attach the Cubic judgment by accepting a pro rata payment, and that the Cubic judgment was subject to attachment under the TRIA.
Thus, according to the Ninth Circuit, the Cubic judgment is immune under the FSIA, but is subject to attachment under the TRIA.
David Bederman, an attorney representing Iran in the case, indicated that Iran will seek an en banc hearing to challenge the decision. -- Jason A. McClurg, Associate Attorney, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / / Embassy Law Link
Embassy Construction Law
What laws should apply to the construction of embassy premises? In Washington, two sets of laws may apply, to uphold high standards of worker safety, to secure building approvals from neighborhood commissions and authorities or to have equipment at the facility be compatible with standards established by the home foreign office.
Experienced embassy advisors at the Department of State and in law firms assist the diplomatic administrators, such as the chancellors, meet all requirements and ensure progress through a successful construction project.
On June 9, 2007, David Phinney reports in Blood, Sweat and Tears at New US Embassy of a construction project that failed various standards, beginning with deceptive hiring of construction workers from various nations to ignored and unenforced safety standards, all involving embassy construction in Baghdad. Many lessons to be learned from that experience. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
In Defense of Consular Rights
On June 6, 2007, the United States Department of State published an impressive defense of the official views held by the United States on international law. John B. Bellinger III, the Legal Adviser's remarks at The Hague, included the following observations on consular access:
For nearly a decade the United States has struggled to reconcile our obligation to obey orders of the International Court of Justice with our system of criminal justice, in which most criminal law is state, not federal, law. In 1998 the ICJ asked the Clinton Administration to delay the execution of a convicted murderer who claimed certain rights under the Vienna Convention on Consular Relations. The U.S. government conveyed the request to Virginia, the state that had imposed the sentence, along with its endorsement of the request, but believed it could do nothing more.No doubt the perceptions vary greatly from different perspectives. But the United States' top international lawyer's statement appears to open the door to dialogue which begins with the outline of facts as perceived by the various sides. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. consular access legal adviser
More recently, in the Avena decision, the ICJ ordered the United States to review the cases of 51 Mexican nationals convicted of capital crimes. All of these individuals were represented by counsel and had or will have multiple opportunities to seek judicial review of their convictions and sentences. All of their lawyers had reason to know of the Vienna Convention and how it affected their clients. But all had failed to present the grievance about violation of the Vienna Convention to the trial court in a timely manner. The ICJ, however, declined to acknowledge the U.S. rule requiring timely presentation of a defense during the course of a criminal trial - a rule that prevents defendants and their lawyers from abusing the system to obstruct and delay the administration of justice.
The cases covered by the ICJ judgment all involved heinous murders, including of young children. Some proceedings had gone on for many years, with the victims' families patiently waiting while our state and then federal courts reviewed the outcome to ensure that it fully complied with our laws. Yet the ICJ judgment nonetheless required us to review these cases again to consider the unlikely possibility that the outcome would have been different if the defendant had been asked whether he wanted his consular officer notified of his arrest.
It is hard for those who were not intimately involved in the process to appreciate how difficult, legally and politically, this issue was, or how seriously we took it. The pressure on this administration was enormous: The President had been Governor of Texas, where many of the cases arose. The crimes had been atrocious, and the ICJ judgment required us to disregard the normal rules of procedure for our criminal trials. The President, acting on the advice of the Secretary of State, nonetheless decided to require each State involved to give the 51 convicts a new hearing.
The first defendant to try to take advantage of the President's decision was in the state of Texas, which objected to the President's decision. In response, the Texas Court of Criminal Appeals ruled that the President had no power to intervene in its affairs, even to obtain compliance with an order of the ICJ. This Administration has gone to the Supreme Court of the United States to reverse this decision. We expect a ruling from that Court this time next year.
Fri, / / Embassy Law Link
Arbitration, Conventions and FSIA
On May 25, 2007, the United States Court of Appeals for the District of Columbia Circuit in Washington, DC examined the dismissal of an action for the recognition and enforcement of a Columbian arbitration award. The award had been nullified by the proper court in Columbia. Despite that outcome, the winner attempted to seek its recogition in the United States under the New Court Convention which is incorporated into the Federal Arbitration Act.
In the matter Termorio SA ESP et al. vs. Electranta SP et al., docket number 06-7058, the D.C. touched briefly on the Foreign Sovereign Immunities Act because of the role of Columbia as a co-owner of its defendant instrumentality, an energy concern, 28 USC §1603(b). Its opinion supports the dismissal of the action based on Art. V(1)(e) of the Convention. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. FSIA .FAA
Sun, / / Embassy Law Link
Labor Rights and Local Hires
Local hires at embassies present challenging legal issues throughout the world. The host nation, the embassies and the employee find themselves faced with concern that differ markedly from domestic employment matters, or even private-sector international ones. With trade unions entering the play, additional scenarios present themselves. Such is the constellation of parties in the recently-concluded International Labor Organization (ILO) matter of the British Embassy in Washington, DC.
The Embassy had been bargaining with the Association of United States Engaged Staff (AUSES) about the terms and conditions of employment for the locally engaged staff for almost 50 years. The dispute started in December 2004 when the staff chose the International Federation of Professional and Technical Employees (IFPTE) as their bargaining representative. The Embassy allegedly refused to negotiate with the AUSES/IFPTE and unilaterally implemented changes in employment terms and conditions. The complainants argued the Embassy violated the ILO conventions No. 87 on the Freedom of Association, and 98 on the Right to Organize and Collective Bargaining. The Embassy maintained it did not violate Convention 87, allowed the union to reach out to staff and provided facilities for meetings. The Embassy said it had no obligation under Convention 98 to collectively bargain with staff since the Convention does not deal with the position of public servants engaged in the administration of the State.
The Committee on Freedom of Association acknowledged the Embassy allowed the union to promote itself, but agreed with the complainants that local staff cannot be considered engaged in the administration of the State, as they do not make diplomatic policies. The report also noted that a public servants' union represents the diplomatic staff in the United Kingdom.
The Committee held there was no reason to grant lesser collective bargaining rights to locally engaged staff than those enjoyed by UK engaged employees. As a result, the Committee recommended the British government encourage the Embassy to negotiate with the AUSES/IFPTE union regarding terms of employment for locally engaged staff's employment. The report was adopted by the ILO and made final on March 30, 2007.
Financial Times also reported on the dispute on April 13, 2007. For further reference, the Committee's report has been summarized in a BNA article on April 19, 2007 as well. -- Basak Candar, Legal Assistant,Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Close Embassy to Fight Rebels
Tribesmen in Yemen demand an end to diplomatic relations with Libya and the closing of its embassy, according to a Yemen Observer report of May 13, 2007. They accuse the embassy of serving as a shipment point in the delivery of support for rebels in the Sa'ada region.
Mon, / / Embassy Law Link
Singapore is not the USA
On May 10, 2007, the United States District Court for the District of Columbia dismissed the matter Strategic Technologies PTE, Ltd.. v. Republic of China (Taiwan), No. 05-2311, for lack of subject matter jurisdiction. In applying the Foreign Sovereign Immunities Act, it held that an sovereign's immunity waiver for a specific forum abroad does not extend to a U.S. court.
The court examined an implied-waiver exception and a commercial-activity exception. Generally, a foreign state is not immune from suit when it has waived such immunity or the suit is based on certain forms of commercial activity. The court based its decision on Creighton Ltd. v. Government of the State of Qatar, 181 F.3d 118, 122 (D.C.Cir. 1999), which held that an agreement to arbitrate in a third country does not demonstrate an intent to waive sovereign immunity.
The Court held also that the enforcement of a foreign judgment for its execution into U.S. assets alone does not meet the requirements of the commercial-activity exception. The court referred to Shiffahrtskontor GmbH v. Shanghai Foreign Trade Corp., 204 F3d 384 (2d Cir. 2000) and applied the test from Federal Ins. Co. v. Richard I. Rubin & Co., Inc., 12 F3d at 1286 and Turbular Inspectors, Inc. v. Petroleos Mexicanos, 977 F.2d at 184, which requested that a commercial activity providing the jurisdictional nexus must be the same activity on which the lawsuit is based. -- Lothar Lieske, lawyer-intern and research fellow, Berliner, Corcoran & Rowe, LLP.
Sat, / / Embassy Law Link
Accreditation Quandary between Canada and India
The Telegraph, Calcutta reported on May 7, 2007 about a diplomatic quandary between India and Canada regarding two same-sex couples to be accredited at the Canadian embassy in India. The Canadian high
commission has recently requested Delhi to provide diplomatic spouse privileges, outlined in Article 27 of the Vienna Convention on Diplomatic Relations, for two officials married to a partner of the same sex.
Same sex marriages are legal in Canada, but India does not recognize them. Sexual intercourse between same-sex couples is outlawed in Section 377 of the Indian Penal Code as an unnatural offense.
The issue between the two countries raises important questions about the accreditation process. The Vienna Convention does not explicitly state the criteria for diplomatic accreditation, but Article 29 affirms the inviolability of diplomatic agents and their immunity from the criminal jurisdiction of the receiving state.
The Canadian officials cited the 1961 Vienna Convention on Diplomatic Relations and the 1963 Convention on Consular Relations as their basis for the request, the Telegraph notes. However, Indian foreign ministry maintains the conventions afford immunity from criminal procedure, not from the receiving state's substantive law, implying they might refuse the Canadian officials.
On immunity from the receiving state's law, the Vienna conventions state it is the duty of all persons enjoying [diplomatic] privileges and immunities to respect the laws and regulations of the receiving State.
Section 377 of the Indian Penal Code was introduced during British rule and came into effect in 1862. Homosexuality was not an offense under Hindu law. -- Basak Candar, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
New Diplomatic Connections
Diplomatic Connections is a new magazine now circulating in Washington, DC and possibly elsewhere. Described as a guide to diplomatic benefits and privileges, it contains reprints of conventions important to diplomatic and consular personnel. Additional coverage outlines tax exemptions and the range of issues under federal and state law facing administration officials in charge of buying, selling or changing embassy and consular properties. In addition to legal issues, the advertising sections introduce businesses catering to the target audience. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / / Embassy Law Link
Attack or Protection?
The Russian reaction to the removal of a military memorial in Tallin, Estonia, has the Estonian government fear for the safety of its diplomatic personnel in Russia. The Budapest Times reports on May 7, 2007 of organized aggression directed at the embassy in Moscow. The Estonian foreign minister called on Russian authorities to implement their obligations with the Vienna Convention on Diplomatic Relations. By contrast, the Russion News and Information Agency service Novosti reports on May 3, 2007, that the authorities are ensuring the safety of the diplomats. The youth groups confronting the embassy help protect the diplomats against drunk or aggressive individuals … Offenders have been brought to justice, Novosti relates. The European Union and NATO demanded that Russia comply with the conventions. The United States Department of State expressed its concern.
Tue, / / Embassy Law Link
Iran Protects U.S. Embassy
The Membri Blog reports on April 17, 2007 that the judiciary of Iran will not permit the enforcement of an Iranian award against the United States into the U.S. Tehran embassy in Tehran. Hossein Alikhani had sued the United States for his unlawful capture and abduction by the United States. The report does not state whether Alikhani won a judgment but mentions damages awarded to him. The reason stated for the refusal to permit such enforcement is the Vienna Convention on Diplomatic Relations of April 18, 1961. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
Who Set up Consular Service?
The Consular Service of the United States was established before the United States, the Friday Flyer reports on April 13, 2007. The Continental Congress set up the service under President John Hanson, his great-great-great grandchild explained to the Flyer.
Fri, / / Embassy Law Link
U.S. Wants Better Law for Canada
The United States does not propose a North American Union similar to the European Union and will respect Canada's sovereignty, the U.S. ambassador to Canada assured his hosts on March 1, 2007. Canada should have a better laws, however, and the United States requested that a stronger copyright bill be introduced and be passed.
On March 20, 2007, P2PNet commenter Michael Geist, research chair in Internet and e-commerce law at the University of Ottawa, explains why the facts cited by the ambassador in support of the request are not credible.
The issue of foreign pressure exerted on Canadian legislators may be addressed elsewhere. Fortunately, the ambassador did not use a phrase heard from a Washington trade association, dropping the nuclear bomb of international trade on the target country. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / / Embassy Law Link
Diplomatic Immunity and Alleged Slavery
Challenging the presumption of diplomatic immunity, a Bangladeshi man who worked as a domestic servant for the United Arab Emirates Ambassador to Australia has sued in Australia's Federal Court claiming he had not been paid wages during his six month tenure with Ambassador Saeed Mohammed al-Shamsi.
As reported by Caroline Marcus in Diplomat Servant's 'Unpaid Slavery' on March 11, 2007, after working more than thirteen hours per day for six months, Nuruddin Bhola Meah requested back wages from his employer and was threatened with deportation.
A complaint pursuant to this incident seeking $48,000 for breach of contract and making allegations of domestic slavery is being taken seriously by the Sydney Legal Aid NSW's Human Rights Committee who recommend the case go before a judge, the Sydney Morning Herald article notes. -- Sally Laing, law student, formerly legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
Legal Peace in Dar es Salaam
On March 12, 2007, Daily News of Dar es Salaam, Tanzania notes that the United Nations World Food Program was found by the High Court to benefit from immunity protection under the Diplomatic and Consular Immunities and Privileges Act of 1986 with respect to a law suit by a local company, Swift Traders (EA) Ltd., for a breach of contract claim.
At the behest of the Ministry of Foreign Affairs and International Cooperation, the Attorney General had appeared as a friend of the court in the proceeding to oppose the plaintiff's position. The local trader argued in favor of unlimited jurisdiction of the court. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.UN immunity
Mon, / / Embassy Law Link
Tax Amnesty to End Soon
One-half of the non-diplomatic employees at embassies and international organizations in Washington are said to not properly pay federal income taxes in the United States. In seeking to recover the deficiency, the Internal Revenue Service offered an amnesty on November 17, 2006, with a deadline for employees to elect participation by February 20, 2007.
The IRS refused a request by an embassy for an extension, CQ Weekly reported. However, IRS Notice IR-2007-34 of February 13, 2007 extends the election through March 30, 2007. The extension has received little public notice.
Since the state income tax schemes tie to some extent into the federal system, the federal amnesty may trigger late taxes, interest and penalty obligations at the state and local levels without the advantages that the federal amnesty provides.
The amnesty sheds some light on a complex issue: Embassies and international organizations want their local hires to pay what is due the host nation. At the same time, embassies tend to stay out of local tax issues as a matter of principle, as memorialized in the Vienna conventions on diplomatic and consular relations. Employment agreements for embassies and consulates often reflect the conflict: Embassies as good neighbors but not meddlers in the internal affairs of the host nation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.embassy amnesty embassy personnel
Sun, / / Embassy Law Link
Treaty Exit Provision
Anil Nauriya, Indian Supreme Court advocate and scholar, explains the legal requirements in India for treaty making and in particular for exit clauses, using the example of a treaty between India and the United States on nuclear technology, the India-United States Joint Statement of July 18, 2005. The article, Leader Article: Exit Clause, The Times of India, March 7, 2007, suggests amending the Indian constitution in article 73 to give parliament a greater role in the ratification of treaties. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
FARA for Iraq?
In Washington, the Nazi-era Foreign Agents Registration Act limits propaganda by foreign governments, and additional laws and rules restrict lobbying and influencing of American legislation by foreigners. Compliance used to be easy but has become cumbersome and expensive, but shedding light on the influence of foreign entities on domestic matters makes sense.
Apparently, the practice of controlling foreign influences on lawmaking in the much more vulnerable Iraq does not come anywhere near that standard. Foreign governments heavy-handedly interfere in the process for their own benefit, the Guardian Unlimited article Britain Led Rush for Black Gold in Iraq reports on March 4, 2007. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / / Embassy Law Link
U.S. Tobacco Company not Liable to Foreign Governments
On February 23, 2007, in the matter of the State of São Paulo of the Federative Republic of Brazil v. The American Tobacco Company et al. and Republic of Panama v. The American Tobacco Company et al., Nos. 383/384, 2006, the Supreme Court of the State of Delaware affirmed the Superior Court's decision to dismiss the claims brought against the defendant companies by the two foreign governments.
The plaintiffs alleged they incurred high medical expenses due to illnesses resulting from the defendants' tobacco products. The plaintiffs claimed their citizens were misled about the consequences of tobacco consumption. However, the Superior Court granted the defense motion to dismiss under civil procedure rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
The Superior court also denied the foreign governments' parens patriae standing, which would allow the governments to seek compensation on behalf of their citizens. The plaintiffs appealed, claiming a flawed interpretation of the parens patriae doctrine and other legal errors.
The Supreme Court of Delaware found no legal errors in the Superior Court's decision to dismiss all complaints, pointing out that it is impossible to determine the costs the foreign governments would have incurred if the citizens had not been misled about the consequences of tobacco consumption.
The court also stated a more fundamental basis for the previous decision, stressing that using a proximate cause analysis in this case would presuppose the defendants owed and violated a duty to the plaintiffs. The Court held the defendants had a duty to the citizens of the foreign governments, but had not incurred a legal duty to the plaintiffs themselves.
Importantly, the foreign governments lack parens patriae standing that is available to American states but despite that factor, their claims may have survived the initial inquiry on a subrogation basis which the plaintiffs failed to plead. -- Basak Candar, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington. tobacco suit parens patriae
Thu, / / Embassy Law Link
Consular Notification Issues
The Sri Lanka Sunday Times Online carries a February 25, 2007 article by Kishali Pinto Jayawardena on the failure of Sri Lanka to sign the optional protocol to the Vienna Convention on Consular Relations which confers to the International Court of Justice compulsory jurisdiction in matters involving a failure in consular notification.
Four Sri Lanka citizens were crucified and beheaded in Saudi Arabia, the article notes, in violation of due process, after they had been convicted and sentenced to 15 years of imprisonment. Jayawardena examines Art. 26(1) procedures and their status before the ICJ and the United States Supreme Court. Unlike Mexico, which forcefully asserts its treaty rights before the ICJ, Sri Lanka defers to totalitarian Saudi law, the author decries in Challenging Powerful States When Citizen's Rights are in Issue. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. consular notification ICJ
Sun, / / Embassy Law Link
Terror Suit Against Sudan to Proceed
U.S. District Judge Robert G. Doumar announced that he plans to allow the USS Cole lawsuit against Sudan to go to trial, the Jurist website reported on February 16, 2007. Plaintiffs allege that Sudan allowed Al-Queda operatives to ship explosives to Yemen and helped finance the October 12, 2000 suicide bombing attack on the U.S. missile destroyer USS Cole, causing 17 sailors to die. The plaintiffs are family members of the sailors who died in the attack.
In August 2005, Judge Doumar had ruled that there was sufficient evidence linking Sudan to the attack for the families to proceed with the lawsuit. Sudan urged the court to dismiss the case, arguing for lack of evidence directly linking Sudanese officials to Al-Queda and Al-Queda to the bombing. However, although there has been no official ruling on the case, Judge Doumar announced at a hearing on February 15, 2007 that he would proceed with the trial.
Sudan may be barred from claiming immunity under the Foreign Sovereign Immunities Act, because federal law defines Sudan as a state sponsor of terrorism, open to liability under the Anti-Terrorism and Effective Death Penalty Act of 1996. The case raises important issues about legal aspects of the war on terrorism. -- Basak Candar, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / / Embassy Law Link
Phone Company not Government Body
On February 1, 2007, the United States Court of Appeals for the Fifth Circuit affirmed in The Board of Regents of the University of Texas System, on behalf of the University of Texas at Austin; Hydro-Quebec v. Nippon Telephone and Telegraph Corporation, docket no. 05-51432, the district court's denial of foreign-state status to NTT, a Japanese company.
The plaintiffs alleged that an NTT research scientist had disclosed to NTT confidential information obtained during his visit to UT during 1993-1994, which allowed NTT to receive a patent for a lithium-rechargeable battery technology. The Japanese patent harmed the plaintiffs' ability to commercialize their invention. In response to their claims of tortious interference, unfair competition, misappropriation of trade secrets, conversion, and breach of a confidential relationship, NTT claimed foreign sovereign immunity under the under the Foreign Sovereign Immunities Act. The plaintiffs agreed that NTT meets two conditions under 28 USC §1603(b) as a separate legal corporation that is not a citizen of the United States.
As a result, the issue became whether NTT was an organ of a foreign state, namely of Japan. The district court denied that it was, which the Court of Appeals affirmed. The Court of Appeals outlined five factors in deciding whether NTT could qualify as an organ of Japan, mentioning that these factors were guidelines pertinent to this case, but that they should not be used mechanically for all similar cases.
Under these five factors, the court determined that NTT was not created for a national purpose, its creation met market ends instead of a government function, it is not actively supervised by the Japanese government or required to hire public employees, and that overall NTT is not treated as a government organ under Japanese law. The opinion provides useful guidance in weighing the immunity status of government entities. -- Basak Candar, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington. State-owned company FSIA
Mon, / / Embassy Law Link
FSIA Bars Execution
On January 25, 2007, the United States Court of AppealS for the Ninth Circuit decided in the matter Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd. against the enforcement of a judgment, on the basis of the Foreign Sovereign Immunities Act. The court found that the tax and royalty obligations of Chevron and its subsidiaries to the Republic of Congo were not property to which an attachment for the enforcement of a judgment against the Republic is possible.
This garnishment action was in response to default by the Congo on a 1984 loan for $6.5 million. Af-Cap attempted to collect on royalties and taxes owed by gas and oil firms to the Republic. While the plaintiffs pointed to a waiver of immunity defense in the loan agreement's statement by the Republic, the Republic asserted their FSIA immunity in the enforcement stage. Af-Cap countered that the property was being used in commercial activity and, thus, was not subject to immunity under the exceptions from attachment and execution to the FSIA.
The court supports a narrow interpretation of the statutory term used for a commercial activity in the United States. Applying a textual interpretation and legislative intent, the judges found the term used required more than a connection or nexus with commercial activity in the United States, but actual use in commercial activity. Additionally, it must be the foreign nation using the property for commercial activity. To allow otherwise would take away the distinction between public and private. It would also allow private entities to essentially waive sovereign immunity that is properly the foreign sovereign's prerogative. -- Sally Laing, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sun, / / Embassy Law Link