Argument

Clergyman, Discipline, Tribunals, Testimony, Argument

From the book The Clergyman’s Hand-book of Law, about Clergyman, Discipline, Tribunals, Testimony, Argument (1): What a clergyman says in the administration of the discipline of the church or what is said in tribunals to enforce discipline of the church, including testimony and legitimate argument within the scope of the case, if said in good faith and without malice, is not actionable in the civil courts.685

Argument in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): I. The FSIA Prohibits Attachment of the Satellite

If the court determines that CONAE is an “agency or instrumentality” of Argentina, then CONAE’s property would be treated as distinct from that of Argentina, and would not be able to be used to satisfy NML’s judgment against the Republic. See Flatow v. Islamic Republic of Iran, 308 F.3d 1065, 1069-74 (9th Cir. 2002). But if the court determines that CONAE is part of Argentina, as asserted by Plaintiff, then the FSIA makes property of a foreign state exempt from attachment and execution unless an exception to immunity applies. See 28 U.S.C. §§ 1609, 1610(a), (c). Because Plaintiff cannot show that the Argentina/SAC-D is being “used for a commercial activity in the United States,” it cannot satisfy a threshold requirement for an exception to immunity. … …[I]t is important to note that Plaintiff cannot, of course, use this proceeding to attach the property of the United States. Plaintiff dismisses this concern by contending that it seeks only the property of Argentina…. Even if the Court were to determine that Defendant’s interest in the Aquarius/SAC-D were otherwise subject to attachment, as a practical matter that interest could not be severed without doing substantial damage to the property of the United States. In any event, Plaintiff has failed to show that property of Defendant is subject to attachment.

Developments

Here, the Aquarius/SAC-D is not used, and will not be used, for commercial activity. The nature of its activity is public, not commercial in nature. The satellite will be used to collect scientific data concerning ocean salinity levels on a scale never before seen by the scientific community, and will have profound impacts on the U.S. understanding of the effects of ocean salinity on ocean circulation and the climate. The operation of Aquarius/SAC-D is not an action of “trade and traffic or commerce,” Weltover, Inc., 504 U.S. at 614, and Argentina is not acting as one player in a market through its operation of the satellite. There simply is no commercial “market” for the Aquarius/SAC-D to operate in.

Notably, the information obtained by Aquarius/SAC-D will be analyzed by NASA and then disseminated at no cost to the public, to benefit the global scientific community. Such a public dissemination underscores the public-spirited, non-commercial nature of the mission. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 92 (2d Cir. 2008) (charitable donations are not commercial activities because they “are not part of the trade and commerce engaged in by a ‘merchant in the marketplace’”); De Letelier v. Republic of Chile, 748 F.2d 790, 797 (2d Cir. 1984) (considering “whether the activity is of the type an individual would customarily carry on for profit”); United States v. County of Arlington, Va., 702 F.2d 485, 488 (4th Cir. 1983) (same). Rather than engaging in trade and commerce by contracting out the use of the satellite or selling the data obtained by the mission, NASA and CONAE will instead use the Aquarius/SAC-D to obtain scientific data for free public consumption and analysis, to contribute to the U.S. collective understanding of ocean salinity in order to improve climate modeling throughout the world.

That the purpose of the Aquarius/SAC-D is not commercial in nature is further underscored by the fact that the observatory’s components were contributed by national space agencies. Intergovernmental initiatives and cooperation are inherently the province of sovereigns. See, e.g., EM Ltd. v. Republic of Argentina, 473 F.3d 463, 482 (2d Cir. 2007) (nation’s borrowing relationship with the International Monetary Fund is not “commercial” because membership in the international institution is limited to sovereigns). The assembled satellite is the combination of instruments and infrastructure from the space agencies of the United States, Argentina, France, Italy, and Canada, rather than private companies. NASA and CONAE have entered into a memorandum of understanding as to their respective obligations…

Details

Plaintiff points to the fact that some commercial entities operate satellites, but that does not compel or even necessarily support the conclusion that the Aquarius/SAC-D is being used for a commercial activity. While a “commercial activity” must be something that a private individual can perform, that factor alone is not sufficient. The conduct that triggers an exception to immunity “must itself take place in a commercial context.” Mwani v. bin Laden, 417 F.3d 7, 17 (D.C. Cir. 2005) (emphasis added). The examples of “commercial activity’ provided in the House and Senate reports on the FSIA demonstrate that active participation in the marketplace is required to satisfy the statutory definition: “a foreign government’s sale of a service or a product, its leasing of property, its borrowing of money, its employment or engagement of laborers, clerical staff or public relations or marketing agents, or its investment in a security of an American corporation.” H.R. Rep. No. 94-1487, at 16 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615; S. Rep. No. 94-1310, at 16 (1976). The Aquarius/SAC-D is not being used for any such activities; instead, the use of the Aquarius/SAC-D is limited to its use as a functioning satellite, gathering scientific information to be analyzed by NASA and CONAE scientists and then disseminated to the public.

If the use of the satellite to collect scientific data could be seen as use for a commercial activity, the satellite would still be immune from attachment because Defendant is not performing such use in the United States. Plaintiff contends that Defendant is “‘using’ the [satellite] in the United States by testing and launching it from Vandenberg Air Force Base,” and that “satellite launches themselves are a commercial activity.” But a satellite is not “used” for testing and launching, and it is NASA, not Argentina, that will be responsible for the launch of the Aquarius/SAC-D. Any use of the satellite for commercial activities will be limited to its use as a satellite, which will necessarily occur after NASA has completed the launch on June 9 and the satellite is in orbit around the earth.

More about the Issue

Moreover, it is not sufficient that the property will be used for commercial activity; such use must be done now. See Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 130 (2d Cir. 2009) (“the property that is subject to attachment and execution . . . must have been ‘used for a commercial activity’ at the time the writ of attachment or execution is issued”) (emphasis in original); id. (“Section § 1610(a) does not say that the property in the United States of a foreign state that ‘will be used’ or ‘could potentially be used’ for a commercial activity in the United States is not immune from attachment or execution. More is required: the property . . . must be used.”) (emphasis in original).

As another court recently recognized, components of a satellite are not being used for commercial activity while they are still being constructed. See NML Capital, Ltd. v. Republic of Argentina, Case No. 03-cv-8845, 2011 WL 1533072, at *6 (S.D.N.Y. Apr. 22, 2011). Moreover, such use must be done by the foreign state, while the property is in the possession of the foreign state. See id. at 131 (plaintiff must show that the property in the hands of the Republic [of Argentina] must have been ‘used for a commercial activity’”) (emphasis in original); Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228, 234 (D. Mass. 2006) (“the ‘commercial use’ exception of § 1610(a) applies only where it is the foreign sovereign who engages in the commercial activity”).

Plaintiff’s contention that “satellite launches themselves are commercial activity,” thus misses the mark, because future use does not support an exception to immunity. Even if the Aquarius/SAC-D’s use as a functioning satellite could be regarded as use for a commercial activity, the cases discussed above make clear that the proper inquiry is whether the property is being used for a commercial activity now, at the time of its possible attachment and execution. To the extent that the use of Aquarius/SAC-D as a functioning satellite constitutes being “put into action, put into service, availed or employed” for a commercial activity, see Af-Cap, Inc., 475 F.3d at 1091, that use will not occur until the satellite has been launched into orbit. At that point, the satellite will be outside the United States, and thus not subject to attachment. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1477 (9th Cir. 1992) (“It is true that section 1610 does not empower United States courts to levy on assets located outside the United States.”).

Argument

Argument

Argument

Resources

See Also

• Privileges
• Immunities
• Foreign Sovereign Immunities
• Exceptions To Immunity
• Commercial Activity

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See Also

• Oral argument

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See Also

• Opening statement of counsel

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See Also

• Closing argument

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Notes and References

1. Charles M. Scanlan, The Clergyman’s Hand-book of Law. The Law of Church and Grave (1909), Benziger Brothers, New York, Cincinnati, Chicago

See Also

• Religion
• Church