Embassy Law Web Log   
Washington, DC, USA      

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.