FAIR PLAY / SUBSTANTIAL JUSTICE

are embassies considered “united states territory”?

Posted in Uncategorized by Ryan Locke on April 23, 2009

Sort of.

Diplomatic and consular premises are NOT extraterritorial. This is the most common misconception about embassies, and something you see in movies and TV all the time.  For example, in an episode of The Simpsons the family travels to Australia and eventually takes refuge on the grounds of the U.S. embassy where they can’t be arrested because it’s “technically U.S. soil.”

In reality, that’s not the case.  U.S. embassies are on the soil of the host country.  This was made clear in Persinger v. Iran, where a marine who was held hostage for 15 months at Embassy Tehran sued his captors, the government of Iran, under the Foreign Sovereign Immunities Act. 729 F.2d 835 (D.C. Cir. 1984).  Although other countries are generally immune from the jurisdiction of federal and state courts, the FSIA created certain exceptions.  One of these exceptions is when the tortious act occurs on U.S. soil.  This makes sense–if Japan injures you in Ohio, you should be able to sue them in Ohio.  But the FSIA said U.S. soil, not “U.S. states.”  So what does “U.S. soil” mean?  28 U.S.C. section 1603(c) has the answer:

“United States” means “all territory and waters, continental or insular, subject to the jurisdiction of the United States.”

The marine argued that it should be considered part of the U.S. since the Embassy was substantially removed from the jurisdiction of the receiving state and was subject to the concurrent jurisdiction of both the sending and receiving states, but the Court of Appeals didn’t go for it.  Instead, they deferring to the language of the statute, its legislative history, and the consequences of finding embassies part of the U.S.–in the end, he wasn’t allowed to sue Iran.  Notably the court didn’t decide if Congress could extend jurisdiction to U.S. embassies; they merely decided that Congress didn’t.  For extreme nerds, the Restatement (Third) of Foreign Relations Law and the Office of the Legal Adviser, U.S. Department of State,  agree with this decision.  The OLA opinion is at Vol. II, 1430-1432, 1440 (1994).

But even though embassies are not part of the U.S.’s territory, the U.S. still exercises substantial control over its embassies and consulates, including enforcing American law. This is done mostly through treaties and bilateral conventions.  For example, judicial assistance between the U.S. and Japan is governed by:

  1. Article 5(f) of the Vienna Convention on Consular Relations, 21 UST 77.
  2. Article 17 of the U.S.-Japan bilateral Consular Convention of 1963, 15 UST 768.
  3. the U.S.-Japan bilateral Mutual Legal Assistance in Criminal Matters treaty, Treaty Doc. 108-12.
  4. the multilateral Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, 20 UST 361.
  5. Customary international law
  6. Applicable U.S. law and regulations
  7. Applicable Japanese law and regulations

As you can imagine, international law gets rather complicated as you’re flipping through nine or ten sources of law.  The most important treaties can be found here.

In conclusion, embassies are not U.S. territory, but are still controlled pretty heavily by the U.S.  Now you know!



About these ads

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: