Immunity of Diplomatic Personnel

Immunity of Diplomatic Personnel

Immunity of Diplomatic Accounts and Personnel in 2013

Note: this is a continuation of the entry about Immunity of Diplomatic Accounts. United States views on international law [1] in relation to Immunity of Diplomatic Accounts and Personnel: Thus, absent evidence that the accounts were being used for activities unrelated to the Lao Government's diplomatic mission, there was no basis for the district court to conclude that the diplomatic accounts were arguably exempt from the VCDR's immunity provisions. Courts that have addressed the “full facilities” provision of VCDR Article 25 have routinely relied on sworn affidavits submitted by mission officials attesting that the accounts at issue were used for the functioning of the mission. See, e.g., Avelar, 2011 WL 5245206, at *4 (“A sworn statement from the head of mission is sufficient to establish that a bank account is used for diplomatic purposes.”); Sales, 1993 WL 437762, at *2 (reliance on mission head's affidavit, rather than “painstaking examination of the Mission's budget and books of account,” is consistent with principle of diplomatic immunity); Foxworth, 796 F. Supp. at 762 (relying on declaration to describe nature and purpose of accounts); Liberian Eastern Timber Corp., 659 F. Supp. at 610 (same). Here, the Thongmoon Declaration submitted by the Lao Government was more than sufficient to establish the diplomatic nature of the accounts. As the magistrate judge observed in her November 26, 2012 order, the Thongmoon Declaration “states that the accounts in question are used for the purpose of maintaining the diplomatic functions of the Embassy and Mission, that any commercial transactions with third parties reflected in account statements were ancillary to that purpose, and that it would be 'difficult, and perhaps impossible' for the Embassy and Mission to function if the accounts were under threat of attachment.” The district court credited the magistrate judge's summary of the Thongmoon Declaration'scontents, including Mr. Thongmoon's assertion of the substantial difficulties that the threat of attachment would place on the diplomatic mission's ability to function. Accordingly, the Thongmoon Declaration should have foreclosed any discussion of the “commercial” nature of the Lao Government's diplomatic accounts. Applying the appropriate VCDR standard, the accounts are entitled to immunity.

More about Immunity of Diplomatic Accounts and Personnel

2. The VCDR Immunizes a Foreign Mission from Discovery and Precludes Testimony from Diplomatic Agents and Staff

The district court's conclusion that the Lao Government is subject to discovery regarding its embassy and U.N. mission accounts even if those accounts might be immune from attachment is likewise mistaken. In its opinion, the district court noted that “the concerns animating the Second Circuit's opinion in EM seem equally applicable in this context: once the Court has established jurisdiction over a foreign sovereign, the Court may order discovery as it would over any other defendant.” But there is no basis for extending EM Ltd.'s holding to discovery relating to diplomatic property that is otherwise protected by the VCDR. At the threshold, as discussed above, the FSIA does not circumscribe the protections afforded by the VCDR. Moreover, the Court's holding in EM Ltd. rested on its determination that postjudgment discovery did not implicate the FSIA because it did not affect the foreign state's immunity from attachment. 695 F.3d at 208. Thus, once subject matter jurisdiction was established under the FSIA, a district court “could exercise its judicial power over [the foreign state] as over any other party, including ordering third-party compliance with the disclosure requirements of the Federal Rules.” Id. at 209.

Development

There are several provisions of the VCDR, however, that provide immunity from the types of discovery allowed by the district court in this case. Cf. Liberian Eastern Timber Corp., 659 F. Supp. at 610 n.5 (in light of the VCDR's provisions, it would be “a difficult task at best” to obtain discovery regarding diplomatic accounts). VCDR Article 31 provides that diplomatic agents “enjoy immunity from [the receiving state's] civil and administrative jurisdiction” and may not be compelled “to give evidence as [ ] witness[es].” Indeed, under Article 31, “[s]itting diplomats are accorded near-absolute immunity in the receiving state to avoid interference with the diplomat's service for his or her government.” Swarna, 622 F.3d at 137. VCDR Article 37 extends those same protections to administrative and technical staff, who are immune from the receiving state's civil jurisdiction for acts performed within “the course of their duties,” and may not be compelled to give evidence as witnesses. See Vulcan Iron Works, Inc. v. Polish Am. Machinery Corp., 472 F. Supp. 77, 79-80 (S.D.N.Y. 1979) (VCDR protects administrative and technical staff, and “[t]hus, their failure to appear for depositions in response to the plaintiffs' subpoenas was excusable”). Thai-Lao and Hongsa's attempts to compel deposition testimony from Lao diplomats, or administrative and technical staff of the Lao embassy, are in direct conflict with VCDR articles 31 and 37.

Details

Additionally, VCDR Article 24 provides that the archives and documents of the mission are “inviolable.” According to a leading diplomatic law expert, “the expression 'inviolable' was deliberately chosen by the International Law Commission to convey both that the receiving State must abstain from any interference through its own authorities and that it owes a duty of protection of the archives in respect of unauthorized interference by others.” Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations 192 (3d ed. 2008); see also 767 Third Ave. Assocs., 988 F.2d at 300 (concluding that the VCDR “was intended to and did provide for the inviolability of mission premises, archives documents, and official correspondence,” and that the VCDR “recognized no exceptions to mission inviolability”). Compelled production of financial and operational records from the Lao Government's embassy and U.N. mission conflicts with this provision; so too would compelled production of documents more recently sought by Thai-Lao and Hongsa, such as written reports prepared by the embassy and U.N. mission for the Lao Government concerning finances and accounts, and yearly proposals made to the Lao Government for funding.

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Similarly, VCDR Article 27 provides for the inviolability of official correspondence of the mission. Insofar as the discovery sought by Thai-Lao and Hongsa seeks correspondence concerning diplomatic funds between the embassy and U.N. mission and the Lao Government, it could compromise the ability of the embassy and U.N. mission to carry out their functions in confidence, thus implicating the United States' obligation to “permit and protect free communication on the part of the mission for all official purposes” and to ensure the inviolability of the mission's official correspondence. VCDR, art. 27(1)-(2); see also Denza, Diplomatic Law at 211 (“Free and secret communication between a diplomatic mission and its sending government is from the point of view of its effective operation probably the most important of all the privileges and immunities accorded under international diplomatic law.”). The district court's perfunctory rejection of the VCDR as a basis for immunity from discovery failed to account for these provisions, instead employing a commercial activity test that has no applicability and that led to an incorrect result.

Resources

Notes

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