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Enforcement Before World Court
The International Court of Justice reports in a press release that Germany seeks the clarification of enforcements of judgments against non-commercial property of a foreign sovereign. The German petition of December 23, 2008 follows proceedings in Italy and Greece resulting in judgments against Germany and subsequent enforcement actions in Italy, including a judicial mortgage recorded against German sovereign real estate.
The Italian view of international law in this respect is broader than the American and German views. Therefore, a decision by the World Court may produce implications exceeding the reach of the nations involved. The court intends to publish the German petition soon. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
Berlin Accord Represents Diplomatic Effort
Eight sovereign nations, an international organization and numerous German companies signed the Joint Statement of the Berlin Accords on claims for slave labor and reparations on July 17, 2000. As a result, it constitutes a diplomatic effort that justifies applying treaty law as opposed to federal common law in litigation over the disputed enforcement by private parties of interest payments due under the terms of the accord, the United States Court of Appeals for the Third Circuit determined in Elly Gross et al. v. The German Foundation Industrial Initiative et al., docket number 07-3726, on December 10, 2008. Ultimately, the court agreed with the District Court that the treaty-like agreement affords no private cause of action. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / Embassy Law Link
FSIA and Holy See
On November 24, 2008, the United States Court of Appeals for the Sixth Circuit in O'Bryan et. al. v. Holy See, docket numbers 07-5078/5163, affirmed a decision of the United States District Court for the Western District of Kentucky at Lousville. Plaintiffs had brought an action against the Holy See, alleging its liability for sexual molestation suffered at the hands of Roman Catholic priests in the United States. The District Court had dismissed the claims in part, and confirmed that other grounds for defendant's liability remain.
The appellate court affirmed after discussing a variety of issues arising out of suits against foreign sovereigns. It ruled in favor of the Holy See as a foreign state within the meaning of the FSIA, refusing plaintiff's construction of the defendant entity as a somewhat hybrid sovereign and non-sovereign actor, the latter being liable for its actions as acta iure gestiones outside the scope of the FSIA.
Further, the court decided the commercial activity exception in 28 USC §1605 (a)(2) of the FSIA would not apply because the gravaman of plaintiff's claims was non-commercial. The FSIA tortious act exception in 28 USC §1605 (a)(5) would apply in part, however, to defendant's alleged misconduct, as it constitutes violations of the customary international law of human rights, neglicence and breach of fiduciary duty.
The key here is its issuance of a legislative text in 1962 that required, inter alia, bishops in the United States not to report child abuse to civil or criminal authorities.
The case offers an in-depth look into the very idea of foreign sovereign immunity from different angles. It also deals with some of the most difficult and contentious issues at the crossroads between law and the supremacy of political deliberations by pursuing the restrictive theory of sovereign immmunity in legislating the FSIA and its amendments. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.
Tue, / Embassy Law Link
Diplomatic Action After Habeas Corpus
The United States District Court for the District of Columbia ordered the Bush government to take quick diplomatic action to effect the release of five Bosnia-Algerians from custody at Guantanamo Bay:
Ordered that Respondents are directed to take all necessary and appropriate diplomatic steps to facilitate the release of Petitions Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Mustafa Air Idir, and Saber Lahmar forthwith. Lakhar Boumediene et al. v. George W. Bush et al., docket number 04-1166, at 14 (November 20, 2008).Are there countries that will award a lame-duck administration a diplomatic gift by accepting the detainees who may not have had any involvement with Afghanistan? -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / Embassy Law Link
Reinstated Immunity for Libya
Libya's immunity has been reinstated by a Bush decree of October 31, 2008. The executive order provides for the termination of pending actions against the Libyan government as a result of the Lockerbie and Berlin discotheque assaults. Libya had paid the settlement amounts required under the Claims Settlement Agreement, thereby triggering the presidential order under the Libyan Claims Resolution Act, Public Law 110-301. Compensation owed Libyan victims of an American air raid remain due; according to the Wall Street Journal, Bush does not intend to use taxpayer funds for that purpose. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / Embassy Law Link
Jordan Avoids Immunity Issue
The United States Court of Appeals for the District of Columbia Circuit affirmed in Ahmad Chalabi, et al. v. Hashemite Kingdom of Jordan, et al., docket number 07-7141, the dismissal of an action by a Jordanian bussinesman who sued Jordan under the RICO statute and for common law torts for the unlawful seizure of his bank in 1989.
The seizure caused the ruin of the bank and its American subsidiary. Seeking compensation, Chalabi alleged jurisdiction over Jordan under 28 USC §1605, which is the commercial activity exception of the FSIA.
The District Court had dismissed the claims as untimely, bypassing the question of subject-matter jurisdiction under the FSIA. This, it held, concurred with a recent Supreme Court decision, granting courts leeway to choose among threshold grounds for denying the review on a case on the merits. Because a final settlement of the immunity question would require further jurisdictional discovery, the court found judicial economy better served by dismissal on timeliness grounds.
The appellate court concurred the dismissal of the claims as untimely and bypassing the issue of immunity are proper. It determined timeliness as having both, threshold and merits characteristics. The October 24, 2008 decision illustrates the power of American courts to dismiss claims against foreign sovereigns without finally adressing their immunity. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington DC.
Wed, / Embassy Law Link
Claims Under State and Federal Law
In Francis Gates, et al., v. Syrian Arab Republic, et al., docket number 06-1500, the District Court for the District of Columbia held Syria as a state sponsor of terrorism responsible for actively supporting Al Qaeda in Iraq in the kidnapping and killing of two Americans. Relatives of both men brought the action against Syria under the new FSIA provision 28 USC §1605 a. The court awarded economic damages, constituting the present value of each man's anticipated earnings over the remainder of their lifetime, solatium for the relative's hurt feelings and grief relating the deaths, damages for pain and suffering of the victims before their death as well as punitive damages.
The merits were decided under the new FSIA provision of 28 USC §1605 a, although the action was originally brought under the Flatow Amendment. The latter, however, did not provide a private right of action against a foreign state itself, but only against the leaders of its government. The new provision confers such a right with regard to designated state sponsors of terrorism and sets forth enumerated types of damages recoverable. Congress eliminated earlier inconsistencies which arose when plaintiffs sued government leaders under different state law. Because the DC Circuit had dismissed other claims under the Flatow Amendment if brought under common law, the change was necessary. Under the old rules such claims could only be reviewed if a specific source of law was applicable.
Holding that the new 28 USC §1605 a provides the sole specific source of law now applicable to such cases, the court dismissed claims brought under state law. However, it did award damages arising from the federal cause of action under 28 USC §1605 a.
The new provision enhances relief for victims of state sponsored terrorism, not only by offering them the possibility to directly sue the sponsoring state itself rather than merely its government leaders. It also enables the court to award punitive damages, which in other circumstances is denied under 28 USC §1606. -- Axel Knabe, international fellow, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Tue, / Embassy Law Link
Afghanistan: Limited Jurisdictional Discovery
Factual allegations sufficient to permit jurisdiction within the limits of the Foreign Sovereign Immunities Act led the United States District Court for the District of Columbia to allow limited jurisdictional discovery on September 30, 2008. The Doe plaintiff claims that the government of Afghanisten enabled the klling of his wife by Osama bin Laden and others, in the matter John Doe et al. v. Sheikh Usama Bin-Muhammad Bin Laden et al., docket number 01-2516. - Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Thu, / Embassy Law Link
Libya Settles U.S. Terror Cases
On August 14, 2008, the United States and Libya reached a bilateral comprehensive claims settlement agreement compensating victims of bombings attributed to Libya in Lockerbie, Scotland (1988) and Berlin, Germany (1986) and settling Libyan claims arising from U.S. military action in Tripoli and Benghazi (1986).
The nearly $2 billion deal settles 26 terrorism lawsuits pending against Libya in U.S. courts and provides immunity against future suits of this kind. According to Assistant Secretary of State David Welch, the agreement will permit Libya and the US to develop their relations, which have thawed considerably since Libya was removed from the U.S. State Sponsors of Terrorism list in 2006.
BBC News reports that although the agreement does not constitute an admission of fault by either party, it is an important step toward restoring U.S.-Libyan relations. The agreement, according to the Chicago Tribune may be a model for others seeking to restore diplomatic relations with the United States. Additional information on the agreement is available from the U.S. State Department and the Associated Press. -- Christina Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.
Tue, / Embassy Law Link
International Treaties Not Issues for Domestic Courts
The latest judicial decision in the 26-year long case McKesson Corporation et al., v. Islamic Republic of Iran was released August 26, 2008 from the United States District Court of Appeals for the D.C. Circuit.
The dispute surrounds an allegation by McKesson that Iran illegally expropriated McKesson's stake in an Iranian dairy company and blocked its receipt of dividends. In this appeal, Iran challenged the district court's decision upholding McKesson's argument that the 1955 Treaty of Amity, Economic Relations and Consular Rights provided a course of action for securing its due.
The appeals court, finding for Iran, reversed the district court on that issue, stating that generally, international agreements do not create private rights or provide for a private cause of action in domestic courts.
Additionally, because the Treaty of Amity does not explicitly call upon the courts for enforcement, it would be involving the judiciary in matters outside its competence and authority. Without a cause of action, McKesson's complaint cannot continue.
The appeals court remanded for the district court to consider whether McKesson may have a cause of action under Iranian law or under the Customary International Law and whether the act of state doctrine applies to this case. -- Genevieve Cohoon, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Saudi Immunity Affirmed
Seven Saudi Arabian defendants who may have played a critical role in the 9/11 terrorist attacks cannot be sued in the United States, according to the U.S. Court of Appeals for the Second Circuit. On August 14, 2008, the Second Circuit ruled that the Foreign Sovereign Immunities Act renders the Kingdom of Saudi Arabia, four Saudi princes, a Saudi banker, and the Saudi High Commission for Relief to Bosnia and Herzegovina immune from litigation in U.S. courts; In re Terrorist Attacks on September 11, 2001, 2008 U.S. App. LEXIS 17223.
While acknowledging that plaintiffs' allegations include a wealth of detail … that, if true, reflect close working arrangements between ostensible charities and terrorist networks, including al Qaeda, the court nevertheless held that defendants retain their immunity because they do not fall under any of the FSIA's statutory exceptions. Those exceptions include (1) designation as a State Sponsor of Terrorism by the U.S. government, (2) personal injury or death resulting from a foreign sovereign's tortious act, and (3) commercial activity.
The decision sets a precedent in the Second Circuit with its holding that an individual official of a foreign state acting in his official capacity is the agency or instrumentality of the state, and is thereby protected under the FSIA. Judges Jacobs, Cabranes and Vitaliano agreed with similar decisions in the 4th, 5th, 6th, 9th, and D.C. Circuits and rejected the narrow[] construction of FSIA immunity held in the 7th Circuit.
Also noteworthy is the court's argument that applying the torts exception in this case would violate an important procedural safeguard--the formal designation of a defendant as a terror sponsor. The court reasoned that to apply the Torts Exception where the conduct alleged amounts to terrorism within the meaning of the Terrorism Exception would evade and frustrate that key limitation on the Terrorism Exception. Additional
analysis of the decision is available at the New York Law Journal.
-- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.
Wed, / Embassy Law Link
Direct Effect Exception Under FSIA
The United States Court of Appeals for the Tenth Circuit upheld a prior ruling of the United States District Court of Utah on July 15, 2008 in Big Sky v. Sichuan Provincial Government et al., docket number 07-4014. Big Sky, a British Virgin Islands corporation, and a Chinese company had entered into a joint venture which was dissolved due to subsequently issued Chinese government mandates.
When no financial compensation was forthcoming, Big Sky brought suit against two provincial governments. While the court's first decision of enlarging the FSIA removal period was affirmed, the substantive issue of subject-matter jurisdiction of the Utah court under the exceptions to the FSIA remained unresolved. Big Sky claimed that the Chinese governments' actions directly affected commercial activity in the United States. The company claimed the application of the commercial activity exception clause in 28 U.S.C. §1441(d).
The Court held, however, that the mere financial loss to Big Sky's American mother company, though real, was felt prominently overseas and does not constitute a direct effect on American commerce. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Fri, / Embassy Law Link
Subrogation and Immunity
On July 25, 2008, the United States District Court of Appeals for the District of Columbia Circuit decided against Libya's Foreign Sovereign Immunities Act claim in La Reunion Aerienne v. Socialist People's Libyan Arab Jamahiriya et al., docket number 07-7050. A French insurer who had stepped into the shoes of Americans it paid under a policy covering the bombing of a French airliner over Africa could successfully plead subject-matter jurisdiction under the terrorism exception to the FSIA, the court held. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
Constitutional Challenge to Terror Exception
Generally, sovereignty shields states from litigation. There are exceptions, however. In the United States, the Foreign Sovereign Immunities Act lays down the general principles and exceptions under which lawsuits against sovereign states can be filed with courts in the United States.
In James Owens et al. v. Repubic of the Sudan et al., docket no. 06-5079, the United States Court of Appeals for the District of Columbia explains the constitutionality of 28 USC §1605(a)(7), which contains an exception to sovereign immunity: Nations found to be sponsors of terrorism by the Secretary of State may not invoke their immunity in litigation.
Sudan contests the constitutionality of 28 USC §1605(a)(7) on grounds that it violates the separation of powers. The court does not follow Sudan's logic that Congress unconstitutionally delegated its power to define the jurisdiction of the federal courts to the Executive.
Instead, the court explains on July 11, 2008, Congress assigned the Executive the authority to make a factfinding upon which jurisdiction partially rests and provided sufficient guidance to the Secretary of State to make the finding of the facts upon which the jurisdiction of federal courts over sovereign states depends. Therefore, 28 USC §1605(a)(7) meets the requirements of the intelligible principle standard of review, supra at 16. -- Michael J. Warning, International Fellow with Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link
ICJ Clarifies Avena
On July 16, 2008, the International Court of Justice provided the United States with a clarification to take all measures necessary to ensure that five Mexican nationals are not executed pending its final judgment in The Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Its order is timely as Jose Medellin, one of the Mexicans concerned in the case, is scheduled to be executed on August 5, 2008 in Texas. According to the Houston Chronicle, Texas governor, Rick Perry, intends to execute Avena despite the World Court order. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / Embassy Law Link
Al-Bashir ICC Prosecution
The International Criminal Court published a press release on the Al-Bashir prosecution on July 14, 2008. The application against the President of Sudan was filed by the ICC prosecution and will be reviewed by the Pre-Trial Chamber. In controlling a counter-insurgency in Darfur, the president is alleged to have used genocidal means outside of the means available to sovereign nations to protect their territory. President Al-Bashir is the first sitting president to face such ICC charges, Times Online adds. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / Embassy Law Link
Iraq Complaint Justiciable
On June 24, 2008, the United States Court of Appeals for the District of Columbia Circuit remanded the matter of Robert Simon et al. v. Republic of Iraq et al., docket number 06-7175, to the district court for further proceedings.
Relying on an exception in the Foreign Sovereign Immunities Act, FSIA, the plaintiffs sued Iraq, the Iraqi intelligence service and Saddam Hussein alleging they had been tortured and taken hostage during the Gulf War. Although foreign sovereigns are normally protected from lawsuits, the exception in the FSIA, 28 USC §1605(a)(7), allows for lawsuits against state sponsors of terrorism. The district court dismissed the lawsuit, however, on the basis that the actions were untimely, coming two years after the ten year limitation.
On appeal, Iraq newly contended that the §1083 of the National Defense Authorization Act for Fiscal Year 2008, NDAA, which revised the terrorism exception by repealing §1605(a)(7) of Title 28 and adding §1605A of Title 28, required dismissal of the cases. The new section mostly strengthened plaintiffs' ability to seek damages from state sponsors of terrorism, though §1083(d) allowed the President to waive §1083 with respect to Iraq, which he promptly did in order to protect its reconstruction.
Based on the text and structure of the NDAA, circuit judge Ginsberg wrote that the appeals court concluded that the courts retained jurisdiction over cases pending pursuant to former §1605(a)(7) when the Congress enacted the NDAA. The court found the actions to be timely and liable to be tried in court and, therefore, reversed the district court's dismissal. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Thu, / Embassy Law Link
Garnishment Dispute in Supreme Court
In today's session, the United States Supreme Court granted certiorari in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, docket number 07-615. For a prior discussion, see Attachment of Award and Blocked Assets. The issue accepted on June 23, 2008 is whether an award received by a foreign sovereign may be garnished by a third party that won an award against the sovereign. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / Embassy Law Link
Philippine FSIA Case on the Docket
On The Docket maintains a list of Supreme Court cases that address the Foreign Sovereign Immunities Act. The newest decision is Philippines v. Pimental, 553 US ___ (2008). -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / Embassy Law Link
Embassies' Business Outreach
On June 12, 2008, the US-ASEAN Business Council facilitated the business outreach efforts of American embassies in South-East Asia. Under its auspices, four U.S. ambassadors joined with 10 foreign ambassadors to meet with business representatives at the Willard Hotel in Washington, DC. Secretary of Commerce, Carlos Gutierrez, present the keynote speech.
Gutierrez argued that protectionism does not protect and called for focused efforts on free trade agreements with ASEAN nations. The Council has long supported such FTAs and serves as the secrectariat of the US-Malaysia FTA Business Coalition.
The American ambassadors stressed the educational aspects of their tour. In San Diego and Houston, they learned from business about approaches in intellectual property law and energy where embassies and business have opportunities for enhanced cooperation. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
Cultural Heritage Lost to Russia
On June 13, 2008, the United States Court of Appeals for the District of Columbia Circuit reviewed a lower court partial victory for the release of cultural property from Russia.
The dispute Agudas Chasidei Chabad of United States v. Russian Federation et al., docket number 07-7002, involves the application of the FSIA to Russia and her agencies, the act of state doctrine and the forum non convenience principle. The cultural heritage at issue comprises Russian Chabad libraries and archives taken by Russia after tortuous escapes from Russian revolutionaries and German invaders.
Now that the D.C. Circuit in Washington, DC has confirmed the jurisdiction of American courts claimed by the plaintiffs, the plaintiffs may proceed with their claims in the district court. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / Embassy Law Link
Breach of Radius or Convention
In US - UK Diplomats Conduct Appalling, an unattributed comment chides diplomats from the United States and the United Kingdom for breaching a travel restriction. The June 8, 2008 comment in the Sunday News of Zimbabwe reports that the alleged violation caused party members to endanger the lives of the diplomats, police had to step in to protect the diplomats, and the diplomats protested their treatment by police as harassment.
The commenter characterized the confrontation:
While Zimbabwe is a signatory to the Vienna Convention on the treatment of diplomats, it is still a sovereign nation with a functioning Government and not a banana republic.It calls for swift remedial action against perceived childish antics and cheap publicity seeking stunts by diplomats. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / Embassy Law Link
Human Rights Exception to Immunity
Reminscent of the proposed FSIA exception for barbarism in Washington, DC, litigation, the highest Italian court reportedly issued rulings containing an exception to sovereign immunity for human rights violations. The court authorized the attachment of a Germany-owned villa at Lake Como and other cultural institutions in a dispute between Germany and Italian and Greek victims of the Third Reich, Netzeitung.de reports on June 6, 2008.
According to the article, Kulturinstitut muss für Nazi-Terror büssen, Germany understands that it had compensated Italian victims, while plaintiffs believe they fell through cracks in the ever-expanding German compensation system which most recently included the Foundation Remembrance, Responsibility and Future. La Repubblica quotes the court as follows:
La Repubblica federale di Germania - si legge nell'ordinanza n.14201 - non ha il diritto di essere riconosciuta, nella presente controversia, immune dalla giurisdizione civile del giudice italiano, anche in ragione del fatto che la condotta illecita si e' verificata anche in Italia …The decisions are apparently not yet available on the web site of the Corte Suprema di Cassazione. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
and
…l'ordinamento internazionale gia' consente di esercitare nei confronti dello Stato straniero in caso di violazioni ad esso addebitabili, di obbligazioni negoziali, resti, invece, esclusa a fronte di ben piu' gravi violazioni, quali quelle costituenti crimini addirittura contro l'umanita' e che segnano anche il punto di rottura dell'esercizio tollerabile della sovranita' …
Fri, / Embassy Law Link
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
Eager OPEC Action
Many potential plaintiffs in the United States eagerly await the passage of NOPEC legislation opening avenues to sue OPEC or its member states for antitrust violations of American law. In a National Law Journal commentary, U.S. Antitrust Laws Should Govern OPEC, Joseph Becker advocates submitting OPEC to the jurisdiction of U.S. courts.
He summarizes developments in antitrust and immunities law and explains the status of OPEC under the laws of Austria. As potential qualified plaintiffs, the May 29, 2008 article identifies American gas stations.
A better read than the usual anti-OPEC refrain and nagging over sovereign immunities for embassies and international organizations, the article concludes with a sense of national urgency. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / Embassy Law Link
Comprehensive FSIA Report
On May 1, 2008, the Congressional Research Service released Suits Against Terrorist States by Victims of Terrorism, an annual report to Congress now available courtesy of OpenCRS. The 77-page report discusses the impact of recent FSIA amendments on litigation against foreign states named State Sponsors of Terrorism.
The CRS report also describes current legislative initiatives that deal with sovereign immunity, including H.R. 394, a bill to abrogate the Algiers Accords, and H.R. 5167, which aims to repeal the FSIA waiver provision for Iraq. As this report deals extensively with FSIA matters beyond terrorism, it should be recommended reading at embassies.
-- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / Embassy Law Link
Cultural Heritage Ruling
On May 23, 2008, a federal district court overruled objections to a magistrate's ruling permitting discovery against a sovereign state in a dispute involving national heritage, Jenny Rubin, et al. v. The Islamic Republic of Iran, et. al., Northern District of Illinois, no. 03-cv-9370. Judge Manning ruled that discovery against Iran is permissible:
Rubin is not seeking 'broad assets discovery,' but rather has limited its requests to information about a discrete collection of artifacts that it believes falls within an exception to the immunity otherwise afforded a foreign sovereign's assets.This finding would seem to conflict with the explicit language of plaintiffs' request for discovery concerning any and all tangible and intangible assets...that are located within the United States.
In addition to rejecting Iran's defenses under the FSIA and Algiers Accords, the court dismissed concerns about international comity and reciprocity expressed by both Iran and the United States as somewhat overblown. As a practical matter, the court contended, plaintiffs must be able to identify which assets of a foreign sovereign are immune and which are available for attachment, and this burden … can be met only after reaping the benefits of discovery. -- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / Embassy Law Link
Tit for Tat Terror
The quasi-embassy of the United States in Cuba supports terrorism by maintaining ties to persons and organizations Cuba considers terrorists, periodico26 notes in reliance on a Radio Havana Cuba report on May 23, 2008. The U.S. Interest Section is said to openly support anti-Cuba actions on the island and, in so doing, violate important international laws that govern diplomatic activities between States -- such as the 1961 Vienna Convention on Diplomatic Relations, the Convention on Consular Relations, passed in 1963, as well as the 1969 Convention on the Law of Treaties.-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / Embassy Law Link
Attachment of Award and Blocked Assets
A foreign government wins an award in arbitration against an American company. A plaintiff obtains a judgment against the government and seeks to attach the award. Before and after the award to the foreign government, the U.S. government issues orders to freeze the assets of the foreign government but certain awards are exempted by treaty from seizure. The award has been pledged by the foreign government to the United States.
That situation and the ensuing legal issues are now before the Supreme Court of the United States in Washington. A recommendation by Solicitor General Paul D. Clement appearing as Amicus Curiae in the matter Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Darish Elahi, 07-615, summarizes the facts and legal arguments as well as the position of the U.S. government. The Scotus Blog states that the Solicitor General filed the brief on May 23, 2008. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / Embassy Law Link
ASIL Secretary on Avena
On May 12, 2008, Jurist Legal News & Research published personal observations from Rick Kirgis, Secretary of the American Society of International Law, on the conflict of the planned execution by Texas of José Ernesto Medellín with international law, specifically the United States' obligations under the United Nations Charter and the Statute of the International Court of Justice.
It is immaterial for international law purposes that it is the state of Texas, rather than the federal government of the United States, that has failed to provide the required review and reconsideration, Kirgis writes based on the ICJ's LaGrand decision. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
No Quorum for ATCA
The United States Supreme Court will not immediately rule on the Alien Tort Claims Act, an old statute warranting interpretation. The ATCA is frequently invoked in foreign sovereign immunities litigation. While originally permitting parties to hail foreign pirates into American courts, the statute has recently seen new uses. For instance, injustices that occur in foreign lands are said to fall under its rules and may be heard by an American court regardless of a more specific nexus with the United States.
The May 12, 2008 ruling is an order addressing a petition for certiorari in American Isuzu Motors v. Ntsebeza, docket no. 07-919. Apparently, the court had no quorum and several justices needed to recuse themselves.
A plaintiff in ACPA matters can effectively forestall a Supreme Court decision by including as parties publicly-held corporations in which the justices hold stock. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / Embassy Law Link
Expulsion from Belarus
The harshest sanction for foreign diplomats under the Hague Convention on Diplomatic Relations of 1961 is the expulsion of diplomats.
Belarus took this step according to a May 1, 2008 report with ten American diplomats. The host country and a host of other nations view the treatment of political prisoners differently. The Associated Press reports that eleven U.S. diplomats left Belarus on May 2, 2008. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
More Immunities Litigation
In addition to enforcement actions against Libya under the recently-amended Foreign Sovereign Immunities Act, new actions against Iran and others also seek the enforcement of judgments against nations considered sponsors of terror. The targets are not always American companies.
A new filing in San Francisco dated April 25, 2008 seeks assignments involving landing rights in Iran that numerous foreign airlines, such as Aeroflot, Lufthansa and Syrian Airlines, obtained, Deborah D. Peterson et al. v. Islamic Republic of Iran et al., docket number 3:08-mc-80030-JSW.
Similar actions are pending in Texas and Oklahoma. A March 3, 2008 Memorandum Order in Katherine Harris et al. v. Socialist People's Lybian Arab Jamahirya et al., docket number 06-732, in the United States District Court for the District Court of Columbia deflated certain defense arguments and recognizes that the January 2008 revisions of the FSIA permit amended complaints as a matter of right.
An interesting issue will be the immunities in matters involving third party nations holding property owned by states subject to reduced immunities, including properties held by the United States as a result of certain sanctions against foreign states. International inter-state transactions will require additional planning regardless of where in the world they occur. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Wed, / Embassy Law Link
FSIA Exception for Libya
The Legal Times offers some insight into the positioning of parties for a Libya waiver under the January 28, 2008 amendments to the Foreign Sovereign Immunities Act. Under the new FSIA amendments, previously discussed at Embassy Law, assets of foreign sponsors of terrorism are now more easily seized by victims of foreign terror.
A unique waiver is available to Iraq. On April 15, 2008, W.J. Hennigan reported in U.S. Companies May be on Hook for Libyan Terrorism that the reformed former sponsor of terrorism is battling for a similar waiver.
American companies now entering Libya for business activities are concerned about their own exposure under the FSIA amendment for assets Libya owns and they hold. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / Embassy Law Link
CIA and Foreign Forces
The sovereign immunity of the United States in the context of CIA cooperation with foreign forces is the topic of an April 15, 2008 decision rendered by the United States Court of Appeals for the District of Columbia Circuit. The underlying complaint was directed against various agencies of the United States. The ruling in Harbury v. Hayden et al., docket number 06-5282, is peripherally important in the international context. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / Embassy Law Link
Consul and Council
Extreme xenophobia--now extended to consuls--permeates reports of a Virginia county. A Washington Post report of March 29, 2008
transfers that hostility to an inquiry by a county council chair about a meeting of
immigrants, the county police chief and the Mexican consul.
Coolly, the police chief notes in response to a question whether the meeting was
cleared with the United States Department of State that he did not set out to
renegotiate NAFTA. The meeting is described as a county-required outreach effort to
explain local enforcement of immigration policy to foreigners in Prince William
County, Va.
The consul's role is described as facilitating the meeting.
Aside from the council - consul - cop interaction, the article notes an odd comment
from an immigrant: For a person illegally present in the United States for ten years, a
traffic stop can result in deportation proceedings. As if that should come as a
surprise. Consuls can only do so much. -- Clemens
Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
No Change After Avena
Violations of article 36(1)(b) of the 1963 Vienna Convention on Consular Relations by the United States produced a favorable ruling by the World Court as well as a presidential memorandum suggesting that the states of the United States give consideration to the ruling in Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 ICJ 12.
On March 25, 2008, the United States Supreme Court dealt the Mexican death row inmates a further blow. In Medellin v. Texas, docket number 06-984, the court held that the uncured failure of consular notification cannot be overcome by the World Court's ruling or the presidential memorandum. They cannot constitute directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / Embassy Law Link
Spitzer Principle Applied to India et al.
Despite the Justice Department's view that retaliation could result from the enforcement of local tax laws against embassies and consulates in the United States, the United States District Court for the Eastern District of New York has now reportedly decided against India, Mongolia and the Philippines.
Foreign press reports point to planned appeals of a decision that does not surprise after the June 14, 2007 Supreme Court holding in Permanent Mission of India to the United Nations at al. v. City of New York. Meanwhile, foreign jurisdictions ponder the refusal of American missions to observe their laws, such as the London congestion tax rules. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Mon, / Embassy Law Link
Damages for Accident at Embassy
In Caracas, the Daily News reports on February 28, 2008 that the Fourth Court of First Instance in Civil, Mercantile, and Transit Matters awarded $400,000 in material damages to Lilian Ramirez. The U.S. Embassy to Venezuela was ordered to pay Ms. Ramirez after 21 years of litigation concerning an accident she had at the embassy in 1986. Claims for moral damages and lost profits were dismissed. The article lacks a description of the underlying legal issues or a link to the decision. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Tue, / Embassy Law Link
Late Notification of Consular Rights
German customs agents interrogated appellants crossing the border and explained their Miranda-type rights through an interpreter. In the arraignment proceeding and after appellants had made statements relating to a violation of narcotics laws, the judge advised the appellants of their right of consular notification under article 36 of the Vienna Convention on Consular Relations of 1963. The appellants waived notification and continued to make statements. The resulting criminal conviction was based in part on their statements. An appeal to the German Supreme Court followed.
In the matter 3 StR 318/07, the court noted that the failure to advise appellants of their treaty right--as soon as the customs agents realized appellants were foreigners--was inexcusable. It examined the treaty obligations and remedies for the use of the poisonous fruit in the criminal case, especially in light of the Avena and LeGrand decisions of the International Court of Justice.
Analyzing the LeGrand ruling, the court held that the ICJ had opened a path to various remedies available to the United States; the reversal of a conviction is only one of them. Considering also human rights conventions and precedent from the European human rights court, the court concluded that the specific facts did not warrant any compensatory remedy and upheld the conviction on December 20, 2007. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link
Belgrade Fire and Diplomatic Convention
The news of an embassy set ablaze in Belgrade reminds us of Article 22 of the Vienna Convention on Diplomatic Relations of April 18, 1961. It sets forth the law on the inviolability of the mission:
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.-- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution. U.N.T.S. Nos. 7310-7312, vol. 500, pp. 95-239
Thu, / Embassy Law Link
Immunity and Treaty Accession
Merely by signing an international agreement a foreign nation does not submit its domestically-operating instrumentalities to exceptions from immunity under the Foreign Sovereign Immunities Act, the United States Court of Appeals for the District of Columbia Circuit decided in a Warsaw Convention matter on February 1, 2008. In Gail I. Auster et al. vs. Ghana Airways Ltd. et al., docket number 05-7141, the court found that the lower court lacked subject-matter jurisdiction for claims resulting from a plane crash in Ghana. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sun, / Embassy Law Link
Foreign Battle, Service on Visiting General
On February 15, 2008, the United States Court of Appeals for the District of Columbia Circuit decided
Ali Saadallah Belhas et al. v. Moshe Ya'alon, docket number 07-7009, by affirming the dismissal of an action against a retired Isreali intelligence officer who visited Washington and became available for service of process.
The subject matter relates to a battle in the south of Lebanon and damages claimed by persons remaining there after an advisory from Israel that all persons found there would be deemed terrorists. The shelling of United Nations compound led to casualties but allowed for no exceptions under the Foreign Sovereign Immunities Act under which subject-matter jurisdiction could be had.
The plaintiffs could not prevail in their appeal under either the Alien Tort Claims Act or the Torture Victim Protection Act of 1991, the appellate court confirmed. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / Embassy Law Link
New Terrorism Exception to FSIA
Significant amendments to the Foreign Sovereign Immunities Act were signed into law January 28, 2008. Section 1083, a provision of the National Defense Authorization Act for Fiscal Year 2008, includes several key provisions to existing law with regard to the terrorism exception to foreign sovereign immunity. Specifically, section 1083 amends §1610 of the FSIA and adds §1605(a).
The changes focus primarily on allowing victims of state-sponsored terrorism to more easily recover damages from terrorist states. American citizens, members of the U.S. Armed Services and government employees will have expanded ability to sue state sponsors of terrorism for damages in U.S. courts.
In their efforts to receive compensation, victims will be able to formally identify the foreign state's property in the United States through a lien of lis pendens. Diplomatic and consular property of foreign states will remain protected from being used to satisfy victims' claims. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington.
Fri, / Embassy Law Link
Global Impact of U.S. Decision
In an unprecedented FSIA ruling, a U.S. federal court authorized a private party to seek the disclosure of all U.S. assets owned by a foreign government. The ruling was made on January 18, 2008 in the matter Jenny Rubin, et al. v. The Islamic Republic of Iran, et. al., Case No. 03-cv-9370.
The United States District Court for the Northern District of Illinois denied Iran’s motion to bar general assets discovery, that is discovery of all Iranian assets in the United States. The plaintiffs had initiated a citation proceeding in Illinois seeking the attachment of ancient Persian artifacts belonging to Iran and being studied since the 1930s by the University of Chicago. The motion was made in an effort to satisfy a 2003 default judgment against the Islamic Republic of Iran and others for damages suffered in a bombing in Jerusalem. Although the initial focus of the proceeding was just the artifacts, this latest order denying Iran’s motion grants the Plaintiffs general assets discovery against Iran. The Court held that general asset discovery is necessary in order to determine whether particular property falls within the exceptions to the general rule of immunity available to foreign sovereigns under the Foreign Sovereign Immunities Act.
However, in granting such discovery against a foreign state the decision is unprecedented and undesirable for all sovereign states. It sets a specific precedent for courts in foreign states to demand that the United States list all of its properties in those states. Thus, for example, a French court may demand that the United States provide a list of all U.S. assets in France. Recognizing this, the United States filed a Statement of Interest in support of Iran, urging the Court to exercise circumspection in light of the potential foreign policy implications of requiring broad discovery of a foreign sovereign. The Court held, however, that notwithstanding comity and foreign policy concerns, the Plaintiffs were entitled to broad discovery of all of Iran’s assets in the United States.
The Algiers Accords between the United States and Iran also supported Iran's position. The 1981 bilateral agreement created a set of provisions to resolve the 1979 hostage crisis. According to Iran, Executive Order No. 12,281, which implemented the Accords, forbids liens on Iranian property in the United States. A general discovery request, according to Iran-U.S. Claims Tribunal precedent, created such a lien, hence putting the United States in breach of the Accords. Iran also took issue with the sufficiency of service. Iran argued it was not properly served with notice of the default judgment that the Plaintiffs sought to enforce in this proceeding. Finally, Iran claimed that the Foreign Sovereign Immunities Act and Terrorism Risk Insurance Act limit the assets against which the Plaintiffs can enforce their judgment, denying them general discovery. The Court rejected all of these arguments as well. -- Genevieve Cohoon, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington
Disclosure: The author is a legal assistant in the firm that represents Iran in the above matter.
Wed, / Embassy Law Link
Alleged Terrorist as Ambassador
Under the heading Bush names terrorist sympathizer as new ambassador to Nicaragua, the Paulitics: Paul's Socialist Investigations blog argues that the nomination of of Robert Callahan as United States ambassador to Nicargua appears hypocritical. The January 24, 2008 note states that Callahan was involved in the Contras activities declared in 1984 to constitute illegal terrorism by the United States in the World Court matter of Nicaragua v. United States. Congress had distanced itself from the Ronald Reagan-initiated effort to overthrow the Sandinistas government in Nicaragua.
Where do you draw the line? Would the head of an American intellectual property organization be considered a terrorist after threatening ministers of foreign affairs from other nations to drop the nuclear bomb of international trade laws on their countries? Arguably, President Roosevelt's Tommy the Cork, the late founder in the author's firm, would nowadays fall in that category for his involvement in activities deemed patriotic and in the national interest six decades ago, such as the Flying Tigers. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.
Sat, / Embassy Law Link