Embassy Law Web Log   
Washington, DC, USA      

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.