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Washington, DC, USA      




Mission Employee: Status for Immunity Purposes

On December 22, 2010, the United States Court of Appeals for the Second Circuit in New York City affirmed the ruling of the District Court for the Southern District of New York to dismiss the case of Gulnar Hijazi v. Permanent Mission of Saudi Arabia to the United Nations, docket number 10-0904, due to a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).

Hijazi had been employed as an Advisor to the Permanent Mission of Saudi Arabia to the United Nations, and had filed suit, claiming she had been subjected to sexual harassment, discrimination by reason of her gender and national origin, and unlawful retaliation. Hijazi asserted that the work she did for the mission was generally clerical, and consequently private or commercial in character. Therefore, Hijazi argued that under the Foreign Sovereign Immunities Act, the Mission of Saudi Arabia should not enjoy immunity according to the commercial activity exception to the FSIA.

The mission contended that the question of immunity was dependent upon its activities and functions rather than an individual employee. The court noted that

It is undisputed that Hijazi attended and took notes at diplomatic meetings, conducted research, wrote memoranda, and, on one occasion, spoke on behalf of the Mission. Her duties were thus in service of the Mission's governmental function.
As a result, the court determined that the matter did not meet the commercial activity exception to the FSIA, and rejected Hijazi's complaint for lack of subject matter jurisdiction. -- Sara Harr, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Attached Diplomatic Premises Released

At the request of the U.S. government, Iran's diplomatic properties in the United States were released from attachment by the United States Court of Appeals for the District of Columbia Circuit. Section 201 of the Terrorism Risk Insurance Act precluded the attachments, the court determined in December 3, 2010 with a detailed opinion and concurring opinion.

The post-judgment attachment was intended to satisfy an award under terrorism legislation which removes some of the jurisdictional protections afforded by the Foreign Sovereign Immunities Act. In Bennett v. Iran, docket no. 09-5147, the court noted:

The United States has held Iran's diplomatic and consular properties for the past thirty years pursuant to Article 45 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, which requires signatory states to "respect and protect" the premises and property of a mission if diplomatic relations are severed or a mission is recalled, and the Foreign Missions Act, 22 U.S.C. § 4305(c)(1) (2006), which authorizes the Secretary of State to "protect and preserve" the property of a foreign mission that has ceased conducting diplomatic activities in the United States.
The judgment creditor believed that the rental of the properties by their custodian, the United States, should remove them from the protection under the Vienna Convention. The court rejected that notion. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

German Embassy Washington Moves

Over the extended Thanksgiving weekend, the German Embassy in Washington, DC moves to its new interim location at 2300 M Street, NW. The move affects also the Legal and Consular Section which handles visas, among other things. Telephone numbers remain unchanged, the embassy reports at its website. All buildings at the existing facility on Reservoir Road and Foxhall Road, except for Ambassador Scharioth's residence, will be refurbished. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Banks Drop Embassies Over Legal Hurdles

Banks have forced embassies out of their customer base for years but the effects of the Partiot Act, enhanced OFAC enforcement and Know Your Customer rules are turning up the heat on embassies. Even the Wall Street Journal goes into detailed reporting on the issue.

The State Department is providing new guidance to embassies, the paper reports in a comprehensive analysis Banks Exit From Embassy Business -- Moves By Largest Lenders Could Strain Relations Between U.S. Government and Other Countries on November 20, 2010. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Disclosure: The author's firm has assisted affected foreign entities and financial institutions in such matters.

Swiss Accused of Violating U.S. Constitution

The facts in the United States Court of Appeals for the Ninth Circuit's unpublished decision in the matter Hilsenrath v. The Swiss Confederation et al., docket number 07-17127, surprise:

The Hilsenraths alleged that the Swiss Confederation, the Federal Attorney General of Switzerland and an employee of the Swiss Attorney General violated the Hilsenraths' constitutional rights when they froze the Hilsenraths' Swiss bank assets during the course of a criminal investigation into allegedly illicit financial dealings.
The violation of American constitutional rights alleged in a U.S. court against a foreign sovereign nation protected by the Foreign Sovereigns Immunities Act? No wonder the lower court dismissed the complaint, as the Circuit Court explains:
The district court properly dismissed the action for lack of subject matter jurisdiction because the Swiss government and its employees are immune from this action under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 etseq. ("FSIA") and the Hilsenraths did not establish the applicability of any of the FSIA's exceptions to sovereign immunity.
The explanation of the unusual case is found in the first line of the decision filed on November 2, 2010: Hana Hilsenrath and Oliver Hilsenrath appeal pro se … -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
 

U.S. Embassies Defend Surveillance

Scandinavian allegations of U.S. embassies spying in host countries without coordination with the host ministries are being refuted by the embassies in Oslo and Stockholm. The Stockholm embassy statement of November 6, 2010 notes that the embassy in Sweden welcomes opportunities to respond to questions and regrets inflammatory and inaccurate press reporting which began in Norway. Tim Moore, U.S. Embassy Oslo spokesperson, explained on November 4, 2010 that his embassy works very closely with host country authorities to ensure the safety and security of U.S. Embassies and all our visitors around the world. On November 7, 2010, CNN observed that similar surveillance programs exist in Copenhagen and Berlin. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Difficulty Convicting Embassy Bombers

The difficulties facing courts in convicting embassy bombers is the topics of Pakistan Danish embassy bombing suspects acquitted. The Reuters report of the September 25, 2010 acquittal of attackers on the embassy of Denmark in Islamabad notes the production of 32 witnesses, including eye witnesses of the event, and the government's plans to appeal the ruling.

State Liable for Diplomats' Torts?

Model behavior by diplomats contrasts with a few bad apples. May mistreated domestic personnel of foreign diplomats in the United States sue the foreign sending state in a United States court?

The United States Court of Appeals for the Second Circuit explored the exposure of both the diplomatic employer and the foreign nation, under doctrines ranging from the Foreign Sovereign Immunities Act to the Alien Tort Claims Statute.

With respect to the state, the court held on September 24, 2010, that neither the tortious activity exception nor the commercial activities exception removed the state's FSIA immunity, in the matter Swarna v. Al-Awadi, docket number 09-2525. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Popular Notions of Embassy Soil and Immunity

In the context of an attack on the embassy of Malaysia in Jakarta, Salleh Buang explores on September 6, 2010 various sovereignty and immunity issues under the Vienna Convention on Diplomatic Relations. In Assault on our embassy a heinous act, she also touches upon the popular misconception that embassies stand on foreign soil. Their property forms part of the host nation's territory while that nation's jurisdiction ends at the gates to the embassy. Buang's New Straits Times report finally explains the history of locations such as Guantanamo and Vatican City. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Immunity of International Organizations

On August 16, 2010, the United States Court of Appeals for the Third Circuit confirmed the District Court's decision that the European Space Agency is not entitled to immunity in the case of Oss Nokalva, Inc. v. European Space Agency, docket number 09-3601. While the District Court concluded that ESA waived the absolute immunity that it usually is entitled to, the decision by the U.S. Court of Appeals was made for different reasons.

The District Court based its ruling on the precedent of Atkinson v. Inter-American Development Bank, 156 F.3d 1335, 1340 (D.C. Cir. 1998), which determined that the Inter-American Development Bank, an international organization under the International Organizations Immunities Act, was entitled to virtually absolute immunity. The court found that ESA was entitled to absolute immunity under the IOIA. However, the appellate court did not accept the District Court's finding that ESA was entitled to absolute immunity and did not need to address whether ESA waived its immunity or not.

The reasoning behind its decision relies on the IOIA which states that international organizations shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments 22 USC §288a(b). Such shorthand legislation linked the immunity of international organizations with the immunity of foreign governments.

While the District Court interpreted this statutory reference as the IOIA providing international organizations indefinitely with the same "virtually absolute" immunity as foreign sovereigns regardless of later changes to the law, the appellate court recognizes the changes to foreign sovereign immunity that have occurred since 1945.

With the creation of the Foreign Sovereign Immunities Act of 1976, foreign governments enjoy immunity from the jurisdiction of U.S. courts with a few specific exceptions. The exception relevant to this case states that

"the foreign state has waived its immunity either explicitly or by implication and in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere…" §1605(a)(1)-(2).
The appellate court believes that the IOIA is clearly written and that Congress made its intent clear. Congress intended that the immunity created by the IOIA would adapt with the law of foreign sovereign immunity. For these reasons, the court concluded that ESA is not entitled to immunity as it stood in 1945 for foreign sovereigns and affirmed the District Court's order denying ESA's motion to dismiss. The court noted that
It is undisputed that the Agreements at issue here constituted such commercial activity and, because we construe the IOIA to incorporate the exceptions to immunity set forth in the FSIA, we will affirm the District Court's order denying ESA's motion to dismiss.
-- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.