Declaring a diplomat persona non grata is only one of various remedies available to a host nation, and usually the most drastic. A recent example is the declaration by the Philippine Department of Foreign Affairs reported May 13, 2012 in Panama embassy employee accused of raping Filipina--He has been declared persona non grata.

The Gulfnews.com article relates also the bilateral responses. In this instance, the declaration followed the departure of the diplomat from the host nation after the accusation of a crime. The correspondent, Gilbert P. Felongco, notes:

The incident also led Senator Vicente Sotto III to ask the government to establish clear guidelines involving foreigners who use diplomatic immunity as a shelter whenever they commit a crime overseas.

Clear rules are usually useful to avoid bias and ensure transparency and predictability. On the other hand, pragmatic and political considerations do not always lend themselves to the clear rule-bound implementation of remedies available against diplomatic and consular persons. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

On April 18, 2012, the United States Supreme Court ruled unanimously that the Torture Victim Protection Act of 1991 does not authorize lawsuits against entities such as corporations, states, or political groups. Instead, the court determined that the TVPA imposes liability only on "an individual who, under actual or apparent authority, or color of law, of any foreign nation" who "subjects an individual to torture" or "subjects an individual to extrajudicial killing."

Although the act defines torture and extrajudicial killing, the definition of an "individual" in the statute was uncertain. Therefore, the various courts of appeals diverged in their construction of the statute. According to the Supreme Court, "the ordinary meaning of the word, fortified by its statutory context, persuades us that the Act authorizes suit against natural persons alone." As a result, it determined the term "individual" to mean an individual natural person.

The case brought before the court, Mohamad v. Palestinian Authority, docket number 11-88, involves a suit filed under the TVPA against the Palestinian Authority and the Palestine Liberation Authority by the family of Azzam Rahim, a Palestinian American killed during a visit to the West Bank in 1995. According to his family, Rahim was arrested, imprisoned, tortured and eventually killed by Palestinian Authority officers.

The United States District Court had dismissed the suit and the Supreme Court affirmed the decision by stating that, "the text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not." -- Linda Dryden, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Customs and prosecutors cooperated in preparing a civil forfeiture case brought in the United States District Court for the Southern District of New York on April 4, 2012. The objective of the cultural heritage action, initiated at the request of a Cambodian ambassador, is the return to Cambodia of a 10th century sandstone statue looted from a Cambodian temple during a period of upheaval and unrest.

The local district attorney issued a press release to explain the history and planned action for the Duryodhana, aka Dvarpala, statue. The antiquity had been owned by French Indochina, then by Cambodia. In April 2010, the cultural icon came to the United States for a Sotheby's auction.

The auctioneer remains in possession of the statue but has withdrawn it from auction. On April 5, 2012, the U.S. District Court issued a restraining order but did not order its transfer to the government. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

In the context of extraordinary rendition and a request by English parliamentarians under the American Freedom of Information Act, the United States District Court for the District of Columbia defined the limitation in 5 USC § 552(a)(3)(E) for the release of information by services defined in the National Security Act of 1947.

Not just embassies are representatives of foreign nations, the court found. Representatives ineligible for FOIA release of information under the 2002 limitation include parliamentarians even if, under the laws of England, they are not representatives of the government, the court held on April 2, 2012 in the matter All Party Paliamentary Group on Extraordinary Rendition v. United States Department of Defense, docket number 09-2375.

The English committee, as well as agencies and instrumentalities of the United Kingdom, cannot file a request, but an attorney acting for himself may, and the dissemination to the foreign persons would be legal. The court considers the result inelegant but up to Congress to remedy. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Today, the United States Court of Appeals in New York City ruled against the Republic of Argentina in the matter NML Capital, Ltd. v. Republic of Argentina, docket number 10-4550. The court affirmed the decision of the United States District Court for the Southern District of New York, granting and confirming attachment and restraining orders against a New York bank account owned by an instrumentality of the Republic, Agencia Nacional de Promociòn Cientìfica y Tecnològica.

The appellate court held that the commercial use exception of the Foreign Sovereign Immunities Act, 28 USC §1602, applies. Its nine-page ruling explains why the funds in the account were subject to attachment pursuant to 28 USC § 1610 and their use for a commercial activity in the United States under subsection (a). -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Iranian embassy staff lost their banking privileges in Moscow, The Moscow Times reported on March 4, 2012. According to its Reuters report, Russia supports sanctions against Iran but has not signed on to the multilateral regime of financial sanctions. In a blog post entitled VTB 24 Surrenders to the Mercy of the USA, Iran's ambassador Seyed Mahmoud-Reza Sajjadi called the closing of accounts crude and unprofessional.

On February 3, 2012, the International Court of Justice in The Hague delivered its judgment in the case on Jurisdictional Immunities of the State, Germany v. Italy: Greece intervening. The Court finds that Italy violated its obligation to respect Germany's immunity by permitting civil claims based on violations of international humanitarian law committed by the German Reich between 1943 and 1945 to be brought against Germany.

The key issue in the dispute was not whether those acts were illegal but whether the Italian courts had to accord Germany immunity in the proceedings over claims for compensation. Whether immunity might apply in criminal proceedings against an official of the State was not an issue in this case because the matter involved solely civil claims.

The rules of sovereign immunity are determined to decide if the courts of one state may exercise jurisdiction in respect of another state; they are not conditioned on the question whether the conduct at issue was lawful or unlawful. The Court concludes that, even on the assumption that the proceedings in the Italian courts involved violations of ius cogens, the applicability of the customary international law of sovereign immunity was not affected.

Further, a claim of immunity cannot depend on the existence of effective alternative means of securing redress. Customary international law continues to require that a state be accorded immunity in proceedings for torts supposedly committed on the territory of another state in the course of an armed conflict or if the state is accused of serious violations of international human rights. Thus, the rule of tort exception cannot justify a denial of state immunity.

In addition, the Court finds that Italy breached its obligations by declaring enforceable in Italy civil judgments rendered by Greek courts for violations of international humanitarian law committed in Greece by the German Reich during the Distomo massacre. -- Christina Theocharopoulou, law student, Heidelberg University Law School, Heidelberg.

Major renovation and construction projects always promise surprises and pitfalls. Embassy renovations, currently en vogue in Washington, can be particularly tricky. Suitable interim spaces are not easy to locate. Landlords require extensive waivers of immunity.

One of the most beautiful embassy buildings on Massachusetts Avenue, that of Cameroon, is currently undergoing renovation. The embassy found interim facilities on Wisconsin Avenue. The lease expired recently but the renovation is incomplete. Meanwhile, ownership in the interim premises changed.

Harvard Trustees, the new owner, decided to evict the embassy. The complaint in Trustees for Harvard University v. Embassy of the Republic of Cameroon filed in the United States District Court for the District of Columbia is available online, published by the Legal Times. Huffington Post has the story. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

On January 17, 2012, the United States Court of Appeals for the District of Columbia Circuit reversed the award issued by an arbitral panel in 2007 in the case of Republic of Argentina v. BG Group PLC, docket number 11-7021. It determined that BG Group PLC violated the terms of the governing Bilateral Investment Treaty whose Article 8(2) states that disputes between an investor under the treaty and the host state that

have not been amicably settled shall be submitted, at the request of one of the parties to the dispute, to the decision of the competent tribunal of the Contracting Party in whose territory the investment was made.

Under the treaty, a dispute may be submitted to international arbitration if eighteen months have passed from when the dispute was raised and a final decision has not been made or if the final decision has been made but the parties remain in dispute.

In this case, BG Group, an investor in Argentinian gas companies, failed to file a claim in Argentinian courts and instead immediately invoked the arbitration clause. Their rationale was based on their own assessment that it would take six years to resolve their claim in the Argentinian courts, and that Article 8(2) of the Treaty was senseless. The arbital panel allowed BG Group to bring its claim because it was an in investor in the Argentinian gas companies which had greatly decreased in value as a result of the collapse of the Argentinian economy and a subsequently enacted emergency law. Based on this, the panel found that Argentina had violated Article 2 of the Treaty and had failed to provide fair treatment to investments. The panel compared two trades of BG Group's shares, one before the emergency law was enacted, and one after, and assessed the damages caused by emergency law to be $185,285,485.85. Damages were awarded to BG Group.

The Court of Appeals found that the district court erred in the enforcement proceeding by failing to determine whether there was unmistakable evidence of the intention for the arbitrator to decide arbitrability after BG Group did not attempt to resolve its dispute in an Argentinian court. The arbitrator would only be able to decide on arbitrability after the proper procedure under the treaty was followed and eighteen months had passed since filing a claim with an Argentinian court. The court considered BG Group's approach a blatant violation of the treaty and vacated the award:

… the arbitral panel rendered a decision wholly based on outside legal sources and without regard to the contracting parties' agreement establishing a precondition to arbitration.

Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

CK - Washington.