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Recent Moves in Embassy Immunities
Election seasons present opportunities to seek scapegoats, and in 2008 the latter include foreign governments. This year witnesses various inroads into the sovereignty and immunity of foreign nations, embassies and state assets.
The first advance arrived in January 2008 with major changes in the Foreign Sovereign Immunities Act. Unless a commercial exception applies, international law protects the assets of foreign states and missions by a blanket grant of immunity from civil actions. The FSIA limits the jurisdiction of courts in the United States. It generally shields foreign missions from nuisance actions.
The shield of the Foreign Sovereign Immunities Act cracked when Congress passed the National Defense Authorization Act for Fiscal Year 2008 which amended §1610 of the FSIA and adds §1605(a). The assets of foreign nations became more easily attachable. Fortunately, the changes are not intended to alter relations with most nations and do not affect diplomatic and consular property. Property of foreign states deemed sponsors of terrorism can be used, however, to satisfy victims' civil claims.
As a result of the enactment, there is a rush of litigation involving those possessing assets or holding claims against foreign states -- such as foreign airlines with landing rights abroad and banks managing accounts. Non-terror states and third parties, including both domestic and international corporations, can easily become entangled in litigation previously unthinkable.
In a February 2008 development strengthening sovereign immunity and facilitating diplomacy, a Washington court lifted the Damocles Sword threatening foreign nations with civil litigation merely because of a nation's accession to a treaty. The United States Court of Appeals for the District of Columbia Circuit decided in a Warsaw Convention matter that American courts lack jurisdiction if the only American connection of the foreign nation's entities consists of its adherance to a treaty also signed by the United States. Diplomats in Washington may continue, therefore, to negotiate agreements and treaties without added concerns over exposing their governmental entities to American courts.
A more troubling development for missions is a series of orders on procedures for the enforcement of judgments against assets of foreign nations located in the United States. In a cultural heritage case, a district court in Chicago required a foreign nation to divulge its assets to plaintiffs. The effect is that plaintiffs can institute proceedings against foreign states in order to obtain a list of state assets which plaintiffs can then use to satisfy jugdments.
The United States Department of State sided with the foreign state on that issue. Obviously, the United States does not want to be placed in a similarly vulnerable position in courts abroad. This is only one of various judicial scenarios where the State Department reaffirms its understanding that the interests of foreign nations and of the United States are closely aligned.
On another plane, the uncertainy surrounding immunities vis-a-vis local hires at embassies and consulates persists. Various courts of appeals in the United States have sought to classify non-diplomatic personnel into categories. The D.C. Circuit in Washington, DC, colloquially known as the second-highest court, made some progress in 2007, but there is no nationwide standard with easy-to-administer rules for embassies.
Similarly, litigation under the 1798 Alien Tort Claims Act lacks definitive guidance. In May 2008, the Supreme Court was unable to provide the long-sought interpretation of the ancient statute that is frequently invoked in foreign sovereign immunities litigation.
In another recent development, the Congressional Research Service released a paper on American and international principles of sovereignty and immunities. While focused on the American response to terror of foreign origin, the research paper entitled Suits Against Terrorist States by Victims of Terrorism, provides detailed information of likely interest to any embassy.
Looking forward, a major tremor may shake international relations if currently discussed federal legislation would remove immunity from OPEC members in antitrust cases. Presently, serious efforts are underway to expand the jurisdiction of American courts. Exceptions for the trade in oil could open the floodgates to similar developments relating to other scarce commodities -- and as the many terrorism exceptions demonstrate -- to foreign-policy reasons.
Except for the Supreme Court's recent ruling on consular notification requirements, American courts have historically applied a sense of fair balance in the area of sovereignty and immunity as well as the obligations of the United States under international law which, in the long run, is likely to prevail. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / Embassy Law Link