Indian Consular Officer’s Arrest Highlights Distinctions in Immunity Law

January 2nd, 2014 — 09:54 pm

The arrest of the Deputy Chief of Mission of India’s Consulate General in New York in December 2013—and the lurid allegations that followed—shocked observers in India and the United States. Federal agents apprehended Deyvani Khobragade on December 13, claiming that she committed fraud by paying her non-citizen domestic employee a fraction of the wages promised in the worker’s visa petition. Khobragade denied the charges, which are punishable by up to ten years in prison, and contended that she was handcuffed and strip-searched while in custody.

The incident grabbed headlines around the world, irking the governments of both countries and sparking public protests. In the uproar, however, a crucial development went almost unnoticed: five days after Khobragade’s arrest, India transferred her from the New York consulate to its permanent mission at the United Nations—thereby conferring complete diplomatic immunity on Khobragade, who at the time of her arrest was entitled only to limited, consular immunity.

The change in status is subtle but significant. Under the Vienna Convention on Consular Relations of 1963, to which the United States is a signatory, consular officers can be arrested on a felony warrant for non-official activities. Diplomats, on the other hand, cannot be prosecuted unless their home country waives immunity, or the diplomat leaves and later tries to reenter the host country on a non-consular visa (assuming the statute of limitations has not run).

India contends that Khobragade’s newly-granted diplomatic immunity is effective retroactively. The State Department, for its part, claims that India’s actions abuse the purpose of immunity, which exists “not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments.”

In recent days, India announced it will launch a tax investigation against members of the American consulate there. Although the State Department insists that “[d]iplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions,” a downward cycle of retaliatory actions is one of the problems that immunity tries to avoid. Whether India’s legal gambit succeeds remains to be seen, but both countries are gambling with political capital where diplomatic law intersects with the twenty-four hour news cycle.

Comment » | Uncategorized

Madame Habyarimana V Kagame, President of Rwanda

April 29th, 2013 — 06:53 pm

Regarding the case: Madame Habyarimana V Kagame, President of Rwanda:
In April 2013; the U.S. Supreme Court decided: Certiorari Denied. The decision upholds the United States Court of Appeals decision for the 10th Circuit concerning the Foreign Sovereign Immunities Act (FSIA) affirming “that a foreign head of state is immune from suit – even for acts committed prior to assuming office.”

Comment » | Uncategorized

Russia Responds to U.S. District Court Order Fine for not Handing over Schneerson Library

January 25th, 2013 — 04:07 pm

The Russian government is puzzled and outraged by the U.S. district court’s order fining Russia $50,000 per diem for refusing to hand over religious writings to the Hasidic sect known as Chabad-Lubavitch.
The U.S. Department of Justice had urged against the ruling, arguing; “that fines won’t help resolve the dispute, would be counterproductive, and would hurt U.S. foreign policy interests.” The Russian response to the decision seems to support that claim.
In 2011, pursuant to the Court’s original decision awarding the Schneerson Library to Chabad, the Hasidic group attempted to seize a collection of Russian icons while they were being exhibited in the United States. Consequentially, the Russian government suspended the organization of exhibitions in the U.S.
The Foreign Ministry responded the ruling was unlawful and argued that the collection “never left Russian territory and was nationalized, since the Schneerson family did not have legal inheritors. Therefore, the ‘return’ of these books to the U.S. is impossible in principle”.
Additionally, the Russian Foreign Ministry insisted that “the U.S. Hasidim are supposed to return seven books from this collection to Russia, which were lent to them from the Russian State Library for two months in 1993 through the Library of Congress under the international interlibrary exchange system and have been unlawfully held for 16 years now.”
“It is outrageous that a Washington court has taken this unprecedented step fraught with most serious consequences as the imposition of a fine on a sovereign state.” The Ministry continued: “We have stated repeatedly that this ruling is exterritorial in nature, goes against international law and is legally null and void. The Schneerson Collection was historically built on our country’s territory, is the national heritage of all Russian people, and, as state property of the Russian Federation, enjoys jurisdictional immunity.”
“We hope the American authorities understand that, if Russian government property not protected by diplomatic immunity is seized in the U.S., which Chabad is demanding as an enforcing measure, we will have to take tough retaliatory measures.”
“The Schneerson Library is part of Russia’s entire library collection and therefore cannot be handed over to private individuals in the U.S., just as it cannot be handed over to anyone outside our country.” This court ruling agrees with the entire political situation. This ruling should be viewed considering the entire spectrum of relations between Russian and the U.S., especially in the culture field.”
“We are acting in line with the law, and our position is unchanging. We are not going to step back from it” said Russian Deputy Culture Minister Grigory Ivliyev. He insisted: “These manuscripts are stored in the manner that documents of this kind are supposed to be stored. All the necessary storage conditions have been provided. We do not restrict U.S. citizens access to the documents in any way, but we proceed primarily from interests of our citizens, who are entitled to familiarize themselves with such important and rare documents”.
Meanwhile Mikhail Shvydkoi, the Russian representative for international cultural cooperation said he had “assumed the issue had been settled”. Calling the U.S. court ruling “unfriendly and upsetting”, he stated that: “Such a decision made in relation to a sovereign state encroaches on its sovereignty.”

Comment » | FISA, Foreign Sovereign Immunities Act, Foreign soverign immunity

Federal Judge Orders Fines for Russia

January 18th, 2013 — 08:28 pm

Chief Judge Royce Lamberth of the U.S. District Court fined Russia $50,000 a day for refusing to comply with an earlier 2010 decision ordering the return of tens of thousands of religious books and manuscripts to the Jewish Group Chabad-Lubavitch. The Justice Department argued that fines would be counterproductive, would not help resolve the dispute, and would hurt U.S. foreign policy interests.
Calling the ruling a violation of international law, Russian jurisdictional immunities, and the Foreign Sovereign Immunities Act, the Russian Embassy press office released a statement saying the collections are part of the country’s national heritage, and it does not recognize Chabad as the rightful owner.
The ruling covers collections seized during the Russian Civil War and Bolshevik Revolution. These include 12,000 religious books and manuscripts. Additionally, there are 25,000 pages of handwritten teachings and other religious writings stolen by Nazi Germany. Chabad’s lawyer, Seth Gerber, said the group would “seek to enforce the sanctions order by all legal means.” This includes trying to attach Russian property in the U.S., as authorized by the court and the Foreign Sovereign Immunities Act. Under FSIA, a sovereign nation is not immune to lawsuits in cases where property is taken in violation of international law.
Fearing its art treasures would be seized and held hostage in the court battle, Russia halted the lending of its art treasure for exhibits in the United States since the original 2010 decision. In court filings, Chabad gave assurance that it would not pursue any art that the U.S. State Department deemed culturally significant; which is the case for major exhibitions. The Foreign Sovereign Immunities Act already protects such art from legal claims.
Referring to the Russian lending reluctance as a “bogus issue”, Lamberth wrote; “The fears purportedly motivating Russia’s moratorium were legally unfounded, as such items would be immune under federal law from attachment,”
The Judge was also dismissive of the American government contention. He was unconvinced that fines would hurt U.S. diplomatic efforts to get the collections back. He wrote “Russia steadily resisted all legal and diplomatic efforts to compel them to return the collection for at least two decades.”… “nor any other reason to believe that its new efforts will be more likely to succeed.”

Comment » | FISA, Foreign Sovereign Immunities Act, Foreign soverign immunity

Officials from Other Countries are not entitled to Foreign Official Immunity for Jus Cogens Violations

November 9th, 2012 — 03:24 pm

In a surprise decision concerning Yousuf v. Samantar, the United States Court of Appeals for the Fourth Circuit, a federal appeals court located in Richmond, Virginia, concluded “officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”
According to Petitioner, a foreign official acting on behalf of the foreign state is to be considered a foreign state; thus argued Muhammad Al Samantar, First Vice President and Minister of Defense of Somalia from 1987 to 1990. Samantar, had originally been denied FSIA protection as the State Department did not grant him immunity and the court decided that as an individual, he did not qualify.
Previously, the Court decided that although this interpretation is literally possible from the definition of foreign state provided in the Act, a holistic reading of the act shows that Congress intended otherwise. The definition of ‘foreign state’ in the Act includes an ‘agency or instrumentality’ of the state, but the definition of ‘agency or instrumentality’ does not indicate and inclusion of individuals. First, an ‘entity’ is an organization, not an individual, and ‘separate legal person’ typically refers to the legal fiction that allows an entity to hold personhood separate from the natural persons who are its shareholders or officers. Thus, the defining terms chosen by Congress shows their decision not to include/refer to individual officials.
Per the Court’s previous decision, “Reading the FSIA as a whole, there is nothing to suggest we should read ‘foreign state’ in §1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted. The text does not expressly foreclose Petitioner’s reading, but it supports the view of respondents and the United States that the Act does not address an official’s claim to immunity.”
Although the court’s new ruling agreed that head-of-state immunity is absolutely controlled by the Executive branch, it concluded that U.S. courts, while giving deference to the views of the Executive, may make their own decisions regarding official acts immunity.
The court’s decision is consistent with the International Military Tribunal at Nuremberg, which concluded::
Where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, this contention must be rejected. The principle of international law, which under certain circumstances protects the representative of a state, cannot be applied to acts, which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.
Human Rights activists, who sought to sue Samantar on the part of Somalis claiming they were tortured by the Somali military and presently living in the US, were happy with the decision; while its implications make the Executive Branch nervous. The government officials are concerned that it will also make them vulnerable to lawsuits on the part of others suing them for jus cogens violations, including the use of drone strikes.

Comment » | Uncategorized

US Opposes Penalty for Russia Over Historic Books

September 10th, 2012 — 09:46 pm

Chabad Lubavitch, a Jewish religious movement seeks to hold the Russian government in contempt. The motion pending before Chief Judge Royce Lamberth of the U.S. District Court in the District of Columbia, asks the court to impose on Russia a $25,000 fine per diem for its refusal to abide by the Judge’s decision that Russia return a collection of books and documents that record the Jewish group’s core teachings and traditions.

Previously, Judge Lamberth ruled that the collections are unlawfully possessed by the Russian State Library and the Russian military archive. In 2010, the judge ordered them returned to Chabad and subsequently granted Chabad permission to seek attachment of Russian property in the US. Chabad has not done so, and has said in court filings that it will not go after any art deemed culturally significant by the State Department which is the case for major exhibitions in the U.S. Such art is protected from legal claims under the Immunity from Seizure Act.

In a recent court filing the U.S. Justice Department argued that judicial sanctions against Russia in this case would be contrary to U.S. foreign policy interests as well as inconsistent with U.S. law. The DOJ said that Chabad’s bid for sanctions is precluded by the Foreign Sovereign Immunities Act, which doesn’t allow a court to compel compliance with an order for property held by a foreign state within the foreign state’s own territory. Even if sanctions were allowed, the judge should not issue them “in order to avoid damages to foreign policy interests of the United States.” The department said that court-ordered sanctions in this case would be so far removed from international norms “that any foreign government would oppose it. Such an order would risk significant criticism from the international community, and would likely be resisted in this or other cases involving foreign sovereigns.” It added that civil sanctions would undermine diplomatic and other efforts to get the collections returned.

Russia does not recognize the authority of the U.S. court. It considers the collection as part of Russia’s national heritage. Concerned at the prospect of having its property seized; Russia has halted the loan of art works for exhibit in the United States. Yevgeniy Khorishko, a Russian embassy spokesman said the Immunity from Seizure Act is limited in scope and “Moreover, it is U.S. national law, while we would like to have some kind of international obligations to ensure the return of our cultural objects on the part of the U.S.” “As for the Chabad’s statement, we don’t regard it as a sufficient guarantee. Taking into account the 2010 court judgment, we cannot exclude other unpredictable decisions by U.S. courts or administrative bodies.”

Chabad said the US Department of Justice filing “unjustifiably seeks to obstruct Chabad’s legal effort to retrieve sacred Jewish documents held by Russia in violation of international law. It said that Justice misconstrues precedents under the Foreign Sovereign Immunities Act. Chabad will file its formal response later this month.

Comment » | Foreign Sovereign Immunities Act, Foreign soverign immunity

US Appeals Court Approved under Sovereign Immunity Kenya’s Seizure of Commercially Purchased Gold

July 27th, 2012 — 02:10 pm

Upon evaluating subject matter jurisdiction, the Eighth Circuit Court of Appeals dismissed the FSIA case of Community Finance Group, Inc., et al. v. Republic of Kenya, et al., No. 11-1816 (8th Cir. 2011). The case involved the Republic of Kenya’s refusal to release gold that Community Finance Group had purchased and paid for. The goods were not delivered to CFG because they were thought to contain diamonds as well as gold, yet the funds paid were not returned.

The Court of Appeals ruled on the case based on subject matter jurisdiction. It found that there was no basis for the commercial activity exception, determining that “the decisions regarding whether or how to investigate an allegedly fraudulent commercial transaction between private parties, regulate exports, enforce criminal laws, and seize property during criminal investigations are governmental rather than commercial activities.”

The Court further ruled that the tort exception to FSIA was inapplicable. This exception includes “only torts occurring within the territorial jurisdiction of the United States, regardless of whether the alleged tort may have had effects in the United States.” However, if the plaintiffs were U.S. entities, and the funds came from the U.S., and the loss was suffered in the U.S., it would seem to follow that the case would fall under the tort exception.
The Court of Appeals did not rule on the return of the monies paid.

Comment » | Foreign Sovereign Immunities Act, Foreign soverign immunity

Investment Funds Cannot Collect from Argentina’s Central Bank

July 13th, 2012 — 08:32 pm

The US Supreme Court ruled, in the appeal of EM Ltd v. Argentina, that investment funds cannot collect Argentina’s debt from Central Bank. The ruling was based on the Foreign Sovereign Immunities Act which asserts that the property of a foreign central bank, when used for traditional central banking activities, is shielded regardless of whether the bank is independent from its parent state.
In a second attempt by creditor investment funds to seize $105 million from Argentina’s central bank, this court decision overturned an appeals court ruling that the assets would be unfrozen because of limits under FSIA on the ability of Argentina’s creditors to freeze or seize assets. It ruled the central bank and Argentina did not waive its immunity.

This case is part of the long-running litigation in New York over Argentina’s $100 billion debt default a decade ago. The appeals court decision could have implications in the future for European and other countries in the event of similar events: a debt crisis, default, and litigation in New York. The investment fund companies highlighted this consideration, stating the lower court ruling “threatens to disrupt financial markets.”

Comment » | Foreign Sovereign Immunities Act

US Court Won’t Freeze Stanford Investor’s Alleged $54M Take

July 11th, 2012 — 03:28 pm

A federal court ruled that the Libyan government can retain $54.8 million it received from Allen Stanford, a perpetrator of an immense Ponzi scheme. The ruling means that the Libyan funds will not be frozen, which could be a violation of the ban against attachments under the Foreign Sovereign Immunities Act. The judge ruled that the funds are property of a foreign state and therefore are not subject to attachment.

The case began with the federal complaint Attorney Ralph Janvey filed against the Libyan Investment Authority and the Libyan Foreign Investment Company claiming that Stanford International Bank had fraudulently transferred $54.8 million in illegal proceeds to the Libyan entities. Both the Northern District of Texas and the 5th Circuit federal court in New Orleans ruled that the funds can remain in place with the Libyan entities. The initial ruling was based on the fact that a preliminary injunction would freeze these funds before resolution of the case, acting as an attachment in violation of FSIA. The appeal decision ruled that Janvey did not show that the funds are not property of a foreign state.

The Libyan Investment Authority had invested a total of $139.6 million before the fraud was discovered and the Stanford fund went under, making it the largest overall loser of the scheme. As for Alan Stanford, he was sentenced to 110 years in federal prison for his role in the Ponzi scheme.

Comment » | Foreign Sovereign Immunities Act, Foreign soverign immunity

A Federal Court: No Sovereign Immunity for Namibia, Which Failed to Comply with New York City Building Code

July 10th, 2012 — 09:35 pm

The Republic of Namibia was not granted sovereign immunity in a case over construction work for which it contracted. This decision of the United States Court of Appeals for the 2nd Circuit was based on the compliance requirements of the New York City Building Code. A suit was brought to recover damages to a building next to a townhouse being renovated for the diplomatic mission of Namibia in Manhattan. The Republic of Namibia had hired a contractor to renovate a building for the Namibian Mission. The contractor hired a subcontractor to pour concrete to reinforce a wall standing between the Mission’s property and the adjacent building. During this work the wall collapsed, causing damage to the other property.

The building’s owner filed a claim with his insurance company, and received $397,000 in damages. Consequently, the insurance company, as subrogee, filed a claim against the Namibian Mission and its contractors to recoup their monies paid, claiming negligence, nuisance, trespass and ultra-hazardous activity. In response, the Republic filed a motion to dismiss the charges on the basis of its sovereign immunity. Although the court dismissed the damage-related counts it denied overall dismissal of the case, deeming that the Republic of Namibia was not entitled to sovereign immunity and the case is valid under tort liability of New York law.

The Mission once again appealed, stating it is not responsible for the negligence of independent contractors. The 2nd Circuit upheld its ruling; according to the New York City Building Code, a person causing construction, in this case the Republic of Namibia, is responsible to maintain and protect the structural integrity of party walls. The court concluded that Namibia was negligent and that it does not enjoy immunity under sovereign immunity in this case, as its activities were commercial in nature.

Comment » | Foreign Sovereign Immunities Act, Foreign soverign immunity

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