Immunity of Diplomatic Accounts

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Immunity of Diplomatic Accounts

Immunity of Diplomatic Accounts and Personnel in 2013

United States views on international law [1] in relation to Immunity of Diplomatic Accounts and Personnel: As discussed in Section A.2.b., in this world legal Encyclopedia, the United States filed an amicus brief in the Second Circuit in support of reversal of a district court's order permitting discovery concerning the Lao Government's diplomatic bank accounts and central bank accounts in the United States. Thai-Lao Lignite and Hongsa Lignite v. Government of the Lao People's Democratic Republic et al., No. 13-495 (2d Cir. 2013). As to the diplomatic accounts, the U.S. brief argues that the district court improperly interpreted both the FSIA and the Vienna Convention on Diplomatic Relations (“Vienna Convention” or “VCDR”) in concluding that the accounts were subject to discovery and possible attachment under the FSIA because a portion of them was being used for “commercial activities.” The U.S. brief identifies provisions in the Vienna Convention that shield these accounts from discovery. Finally, this section of the brief explains that the district court's order would give rise to a host of negative foreign policy consequences. The section of the U.S. brief discussing the diplomatic accounts appears below (with record citations omitted). The section of the brief discussing the accounts of the Central Bank of Laos is excerpted in Section A.2.b., in this world legal Encyclopedia. The brief in full is available at (Secretary of State website)

Some Aspects of Immunity of Diplomatic Accounts and Personnel

A. The VCDR Shields the Lao Government's Diplomatic Accounts from Attachment and Discovery

The VCDR governs the relationship between a sending state (here, Laos) and receiving state (here, the United States) with respect to the operation of the sending state's diplomatic mission, and affords certain privileges and immunities to embassies and diplomatic agents. These protections also extend to U.N. missions. See Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations, art. V, § 15, June 26, 1947, T.I.A.S. 1676 (U.N. representatives will be entitled to the same privileges and immunities as the United States accords to diplomatic envoys); Convention on Privileges and Immunities of the United Nations, art. IV, § 11(g) (member state representatives to the U.N. will receive the same privileges and immunities as diplomatic envoys); accord 767 Third Ave. Assocs. v. Permanent Mission of the Republic of Zaire, 988 F.2d 295, 298 (2d Cir. 1993) (applying VCDR to define protection afforded to U.N. permanent mission). In particular, as relevant here, the Lao Government's diplomatic bank accounts, both its embassy and U.N. mission bank accounts, are entitled to the protections set forth in the VCDR. These protections shield the accounts from attachment and discovery.


The district court offered two rationales in support of its holding that the VCDR did not preclude discovery on the Lao Government's diplomatic accounts. First, the district court concluded that the funds might be subject to attachment (and thus also to discovery) because they were used for commercial activities. Second, applying the FSIA analysis in EM Ltd. to the VCDR context, the district court concluded that the fact that the diplomatic accounts might be immune from attachment did not render them immune from discovery. Both rationales are erroneous.


1. The VCDR Protects Diplomatic Property Used for Commercial Transactions That Are Related to Diplomatic Functions

The district court's characterization of the Lao Government's diplomatic accounts as being used for commercial activities, and thus subject to potential attachment, substitutes the scope of protection afforded by the FSIA for the distinct protections provided by the VCDR. Under the FSIA, the property of a foreign state may be subject to attachment or execution to satisfy a judgment if the property is both “in the United States” and “used for a commercial activity in the United States.” 28 U.S.C. § 1610(a). But Congress enacted the FSIA “[s]ubject to existing international agreements to which the United States is a party,” 28 U.S.C. § 1609, and the FSIA therefore does not circumscribe the broad protections and immunities conferred by the VCDR, see H.R. Rep. No. 94-1487, at 12 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6630 (FSIA is “not intended to affect either diplomatic or consular immunity”); id. at 23 (noting that, even following the enactment of the FSIA, “if a plaintiff sought to depose a diplomat in the United States or a high-ranking official of a foreign government, diplomatic and official immunity would apply”). Put simply, the FSIA exceptions to immunity from attachment are “inapplicab[le]” to an analysis of the validity of attachment where an international agreement such as the VCDR provides immunity. 767 Third Ave. Assocs., 988 F.2d at 297.


Under Article 25 of the VCDR, “[t]he receiving State shall accord full facilities for the performance of the functions of the mission.” Accordingly, the standard for determining whether a diplomatic bank account is immune from attachment under the VCDR is not whether that account is used for commercial activities, but rather whether such immunity is necessary to ensure the “full facilities” to which the diplomatic mission of the sending state is entitled. VCDR, art. 25; see also id., Preamble (explaining that the privileges and immunities conveyed by the VCDR are meant “to ensure the efficient performance of the functions of diplomatic missions”). Although no appellate court has reached this question, numerous district courts (most of which are in this Circuit) have concluded that according “full facilities” to a diplomatic mission includes providing immunity from execution or attachment on embassy or mission bank accounts that are used for diplomatic purposes, because such bank accounts are critical to the functioning of a diplomatic mission. See, e.g., Avelar v. J. Cotoia Const., Inc., 11-CV-2172 (RMM)(MDG), 2011 WL 5245206, at *4 (E.D.N.Y. Nov. 2, 2011) (“Bank accounts used for diplomatic purposes are immune from execution under [Article 25], as facilities necessary for the mission to function.”); Sales v. Republic of Uganda, 90 Civ. 3972 (CSH), 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.”); Foxworth v. Perm. Mission of the Republic of Uganda to the United Nations, 796 F. Supp. 761, 763 (S.D.N.Y. 1992) (holding that “attachment of defendant's bank account is in violation of the United Nations Charter and the [VCDR] because it would force defendant to cease operations”); Liberian Eastern Timber Corp. v. Gov't of the Republic of Liberia, 659 F. Supp. 606, 608 (D.D.C. 1987) (“The Liberian Embassy lacks 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.”).


Indeed, the VCDR acknowledges that diplomatic staff will engage in commercial activities as part of their official duties without losing immunity for such activities. See VCDR, art. 31(1)(c) (providing that a diplomatic agent shall be immune from the civil jurisdiction of the receiving state “except in the case of…an action relating to any…commercial activity exercised by the diplomatic agent in the receiving State outside his official functions” (emphasis added)); Tabion v. Mufti, 73 F.3d 535, 538-39 (4th Cir. 1996) (“commercial activity” refers to “the pursuit of trade or business activity” unrelated to diplomatic mission); Swarna v. Al-Awadi, 622 F.3d 123, 139 (2d Cir. 2010) (“Tabion articulates the scope of acts as they relate to the term 'commercial activity' under Article 31(1)(c) for sitting diplomats.”). Clearly, to the extent the Lao Government uses its diplomatic accounts to purchase office supplies and telephone and internet services, as well as to pay rent on the facilities that house its embassy and U.N. mission, such use is not commercial activity outside the official functions of the diplomatic staff, but rather is in connection with the performance of the functions of the mission.



  1. Immunity of Diplomatic Accounts and Personnel in Digest of United States Practice in International Law
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