Diplomatic Property

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Diplomatic Property

Under the United States' International Agreements, the Diplomatic Property of the Congo's United Nations Mission is Immune From Attachment or Execution in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Plaintiff, through counsel, has represented to the Court that he has filed liens against the Mission's office and the official residence of Ambassador Balé as part of his efforts to enforce the default judgment he obtained against the Congo's U.N. Mission. The Vienna Convention provides that the premises of diplomatic missions “shall be immune from . . . attachment or execution.” Vienna Convention art. 22.3. As such, Plaintiff is foreclosed from attempting to execute on or enforce any liens that he has filed against the Mission's office or Ambassador Balé's official residence, both of which are clearly part of the premises of the Congo's U.N. Mission that enjoy immunity from attachment and execution under the Headquarters Agreement and the U.N. Convention, which render the provisions of the Vienna Convention applicable to permanent missions to the United Nations. See id. art. 1(i); cf. 767 Third Avenue Assocs., 988 F.2d at 297-98.

In addition, bank accounts belonging to the Congo's U.N. Mission that are used for Mission purposes are also protected from attachment and execution. The United States is obligated under the U.N. Charter to provide U.N. diplomatic missions with “such privileges and immunities as are necessary for the independent exercise of [its] functions in connection with the [United Nations].” U.N. Charter art. 105, para. 2. The Vienna Convention also obligates the United States to accord diplomatic missions with “full facilities for the performance of the functions of the mission.” Vienna Convention art. 25.

Courts have drawn on these international agreements to recognize that diplomatic missions' bank accounts that are used for purposes of the mission are immune from attachment. In Liberian Eastern Timber Corp. v. Government of the Republic of Liberia, 659 F. Supp. 606, 608 (D.D.C. 1987), the court relied on Article 25 of the Vienna Convention to grant Liberia's motion to quash the writs of attachment seizing its embassy's bank accounts. The court found that “[t]he Liberian Embassy [would] lack[] the 'full facilities' the Government of the United States has agreed to accord if, to satisfy a civil judgment, the Court permits a writ of attachment to seize official bank accounts used or intended to be used for purposes of the diplomatic mission.” Similarly, in Foxworth v. Permanent Mission of the Republic of Uganda to the United Nations, 796 F. Supp. 761 (S.D.N.Y. 1992), a personal-injury plaintiff obtained a default judgment against Uganda's U.N. Mission, which she sought to satisfy by a writ of execution against that mission's bank account. Granting Uganda's motion to vacate the writ of execution, the court held that “attachment of defendant's bank account is in violation of the United Nations Charter and the Vienna Convention because it would force defendant to cease operations.” Id. at 763. See also Sales v. Republic of Uganda, No. 90 Civ. 3972, 1993 WL 437762, at *1 (S.D.N.Y. Oct. 23, 1993) (“It is well settled that a foreign state's bank account cannot be attached if the funds are used for diplomatic purposes.” (citing Foxworth, 796 F. Supp. 761, and Liberian Eastern Timber Corp., 659 F. Supp. 606)).

Developments

In each of the cases cited above, the head of the diplomatic mission submitted an affidavit stating that the bank accounts at issue were used for the functioning of the mission. Here, too, Ambassador Balé has filed with this Court a signed declaration stating that the Mission's bank accounts that have been attached “are used for embassy-related and diplomatic purposes.” Such a declaration has been held to be a sufficient basis for a court to find that bank accounts are “official bank accounts used or intended to be used for purposes of the diplomatic mission.” Liberian Eastern Timber Corp., 659 F. Supp. at 608. For the United States to be in compliance with its obligations under these international agreements, such bank accounts must be accorded diplomatic immunity from attachment.

The attachment of foreign mission property implicates important foreign policy interests of the United States. In view of the vital governmental functions of foreign missions, it is imperative that they have the means to sustain their operations in the United States, which requires access to official bank accounts used for mission purposes. The attachment of a mission's bank account or execution on the premises of the mission may adversely affect the United States' relationships with foreign states. Furthermore, such actions may make it more difficult for the United States to enlist the assistance of the foreign government when private parties attempt to attach U.S. bank accounts and other assets abroad. In order to vindicate the United States' interests in maintaining relationships with foreign governments, the Court should ensure that the Congo's U.N. Mission and its bank accounts are accorded the full protections to which they are entitled under international agreements.

Details

The court issued its opinion in November, dismissing the case in its entirety and finding that the attachments were prohibited by the FSIA. Avelar v. Cotoia Construction, 2011 WL 5245206 (E.D.N.Y. 2011). Excerpts follow from the section of the court's opinion discussing immunity of mission premises and bank accounts. The court's discussion of propriety of service under the FSIA is excerpted in section 5.a. infra.

More about the Issue

… [T]he Court nonetheless is constrained to vacate plaintiff's execution of the default judgment against Congo Mission premises and bank accounts, because those assets are immune from execution and levy. The Vienna Convention on Diplomatic Relations (“Vienna Convention”) applies with equal force to missions accredited to the United Nations and the United States, with respect to immunity against execution and levy of mission assets. 767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295, 297 (2d Cir.1993); see Vienna Convention, arts. 22, 25, Apr. 18, 1961, 23 U.S.T. 3227; see also U.N. Charter art. 105, para. 2; Agreement Regarding the Headquarters of the United Nations, U.S.-U.N., art. V para. 4, June 26, 1947—Nov. 21, 1947, T.I.A. S. No. 1676; Convention on Privileges and Immunities of the United Nations, art. IV § 11, Feb. 13, 1946, 21 U.S.T. 1418.

Pursuant to Article 22 of the Vienna Convention, mission premises are “inviolable,” and “[t]he premises of the mission, their furnishings and other property thereon … shall be immune from search, requisition, attachment or execution.” Vienna Convention, supra, art. 22 §§ 1, 3. The “premises of the mission” means “buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.” Id. art. 1(i); see 767 Third Ave. Assocs., 988 F.2d at 298. Moreover, under Article 25 of the Vienna Convention, the United States is to “accord full facilities for the performance of the functions of the mission.” Bank accounts used by the mission for diplomatic purposes are immune from execution under this provision, as facilities necessary for the mission to function. Sales v. Republic of Uganda, No. 90–CV–3972 (CSH), 1993 WL 437762, at *2 (S.D.N.Y. Oct.23, 1993); Foxworth v. Permanent Mission of Republic of Uganda, 796 F.Supp. 761, 763 (S.D.N.Y.1992); Liber. E. Timber Corp. v. Gov't of Republic of Liber., 659 F.Supp. 606, 608 (D.D.C.1987). A sworn statement from the head of mission is sufficient to establish that a bank account is used for diplomatic purposes. See Sales, 1993 WL 437762, at *2 (noting also that, to remain consistent with principles of sovereign immunity, reliance on the mission head's affidavit is necessary to avoid “painstaking examination of the Mission's budget and books of account”); Foxworth, 796 F.Supp. at 762; Liber. E. Timber Corp., 659 F.Supp. at 610.

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See Also

  • Privileges
  • Immunities
  • Foreign Sovereign Immunities
  • Execution Of Judgments
  • Post-Judgment Actions
  • Attachments

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