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.
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.
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.
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.
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
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.
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.
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.
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 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.
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
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.
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.
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.
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
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
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.
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.
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.
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
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.
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.
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.