ABUSE OF DIPLOMATIC IMMUNITY: IS THE

GOVERNMENT DOING ENOUGH?

Rina Goldenberg*
I. INTRODUCTION .............................................................. 197
II. BACKGROUND OF DIPLOMATIC IMMUNITY ............................. 199
III. THE LANDLORD'S DILEMMA .............................................. 201
A. District Court'sReasoning ......................................... 202
B. Circuit Court's Reasoning.......................................... 204
IV. DEPARTMENT OF STATE POLICY ......................................... 206
V. RELATED LEGISLATION .................................................... 209
VI. THE CIRCUIT COURT'S REASONING JUSTIFIED
BY OTHER OCCURRENCES ................................................. 212
V II. CONCLUSION ................................................................. 216

I. INTRODUCTION
"Diplomatic immunity covers many things, but failing to pay
$400,000 rent is not one of them, a federal judge said as he ordered the
Zaire mission to the United Nations to be evicted from its offices."'
However, only a few months later, the Second Circuit Court of Appeals
overruled the judge by holding that diplomatic immunity does extend to
this case and that the mission cannot be evicted.' In other words, the
mission can lease another's land, continue its work, refuse to pay rent, and
not be evicted. What remedies does a landlord have? Does our
government have a remedy that would satisfy both the American citizen as
well as the well-established international law of diplomatic immunity?
This note will provide an overview of the development and changes in the
law of diplomatic immunity, discussing its problems and possible
solutions. Then, in light of this overview, a determination will be drawn
stating whether our government has taken the necessary steps to balance

* B.S., 1990, Indiana University; Candidate for Juris Doctor, 1995, Indiana University
School of Law.
1. Zaire'sMission to the U.N. To Be Evicted, N.Y. TIMES, Mar. 26, 1992, at A2.
2. 767 Third Ave. Assoc. v. Permanent Mission of Zaire to the United Nations, 988 F.2d
295 (2d Cir. 1993), cert. denied, 114 S. Ct. 74 (1993).
198 ILSA Journalof International& ComparativeLaw [Vol. 1

the scale of diplomatic immunity that is heavily skewed in favor of the

diplomat.
The landlord's dilemma is one of many unresolved problems of
diplomatic immunity. Offenses by diplomatic personnel vary from parking
violations, to drug smuggling, and murder.' The most serious problems
Americans have encountered in this arena include rape by a foreign
attache's son, assault by the son of a foreign Ambassador to the United
States, child abuse, and sexual assault by an emissary." The United States
is host to some 37,000 diplomatic personnel who are immune to nearly all
civil and criminal liability.5 Although abuses are the exception rather than
the rule, the number of abuses is alarming and has constantly been an issue
of debate in Congress. With no clear guidance from Congress, the courts
are left to their own reasoning and interpretations of purposely ambiguous
treaties, and the considerations of foreign affairs policy.
As courts have encountered such problems previously, they have
created a limited number of precedents on certain aspects of diplomatic
immunity. For example, courts have unanimously upheld diplomatic
immunity in criminal prosecution and civil litigation resulting from
criminal behavior. In Skeen v. Federative Republic of Brazil, the United
States District Court for the District of Columbia dismissed an action for
lack of jurisdiction based on defendant's status as Ambassador to the
United States. 6 In this case, the grandson of a Brazilian Ambassador
assaulted and shot an American citizen without accountability for criminal
or civil liability.' The court hinted that it was the function of the other two
branches to provide a proper solution to such incidents."
Diplomats have also been able to invoke immunity to avoid service
of process. In a case representative of this precedent, a Circuit Court
upheld a United States Marshal's refusal to serve compulsory process on
the Ambassador of Tunisia, stating that such service would violate the
Ambassador's diplomatic immunity.9 The court relied on the State
Department's opinion that such service of process would "prejudice United
States foreign relations and impair the performance of diplomatic

3. Lori Shapiro, Foreign Relations Law: Modem Developments in Diplomatic Immunity,

1989 ANN. SURV. AM. L. 281 (1990).
4. Carol Wallace & Michael Weiss, The Untouchables: Diplomats in America, PEOPLE
WEEKLY, Jan. 17, 1983, at 18(4).
5. Shapiro, supra note 3, at 281.
6. Skeen v. Federative Republic of Braz., 566 F. Supp. 1414 (D.D.C. 1983).
7. Id.
8. Id.
9. Hellenic Lines Ltd. v. Moore, 345 F.2d 978 (D.C. Cir. 1965).
1995] Goldenberg 199

functions.' After weighing foreign relations interests against the benefit

of such service, the court concluded that the former outweighed the latter
and upheld diplomatic immunity.II
Yet another precedent is the inability of courts to compel
diplomatic officials to testify at trials.'2 For example, the United States
District Court for the District of Columbia sided with a Canadian
Ambassador to the United States who refused to testify at a perjury trial,
on grounds similar to service of process."' Courts generally dislike
limiting immunities that are provided by the Vienna Convention and
routinely side with the State Department.
These instances amply justify the Second Circuit's reasoning in
767 Third Avenue Associates v. PermanentMission of Zaire, " in which the
landlord could not evict his delinquent tenant. If such procedural matters
as service of process or a subpoena are prohibited by the notion of
diplomatic immunity, eviction would certainly not be allowed.
Nonetheless, although the trial court in this case probably went too far in
permitting the eviction of the mission, both the district and the appellate
courts were justified in directing attention to the government and voicing
their opinions that, without any revisions of diplomatic immunity law,
innocent victims would continue to bear the burden of delinquent
diplomats.

II. BACKGROUND OF DIPLOMATIC IMMUNITY

Acknowledged diplomatic immunity has existed since the sixteenth
century when it was established in Europe as a result of the common
exchange of permanent ambassadors," During this era, European
countries realized that in order to assure the safety and efficacy of their
work, ambassadors needed to be protected from criminal jurisdiction in the
hosting country.' 6 History provides three theories for the need of such
immunity. First, Hugo Grotius expressed the theory of "sacredness of

10. Id. at 980.

11. Id.
12. Shapiro, supra note 3, at 293.
13. Hellinic Lines Ltd., 345 F.2d at 980. The court held that service of a subpoena
threatens a diplomat's freedom of movement, impairs his or her ability to perform necessary
functions, and thus is a violation of diplomatic immunity. Id.
14. 988 F.2d at 295.
15. Leslie Farhangi, Note, Insuring Against Abuse of Diplomatic Immunity, 38 STAN. L.
REV. 1517, 1519 (1986).
16. Id.
200 ILSA Journalof International& ComparativeLaw [Vol. 1

Ambassadors."' 7 Grotius believed that ambassadors were protected by

both "divine and human law"' 8 and violation of such law would "not only
[be] unjust but also impious."' 9 Another theory was "exterritoriality",
which suggested that an ambassador, wherever he or she might be,
remains on the grounds of its sending state, and therefore is not subject to
another country's laws."0 A third theory, that of "functional necessity", is
the one most widely accepted. 2' Functional necessity is based on the
notion that diplomats cannot perform their duties and diplomatic functions
without the protection of such immunity."
Rules of diplomatic immunity have remained unaltered since the
time they were established. However, in time, the various and often
inconsistent practices required consolidation.23 This occurred at the Vienna
Convention on Diplomatic Relations of 1961 and the Vienna Convention
on Consular Relations of 1963.24 The Conventions codified most modern
diplomatic and consular practices2 5 and were signed and ratified by over
140 countries, including the United States.26 The 1961 Convention on
Diplomatic Relations (hereinafter Vienna Convention) provides for
immunity of diplomats and the diplomatic agent's family members. The
treaty addresses numerous aspects of diplomatic immunity including
approval of diplomats by the host country,2" appointment of mission staff, 9

17. Shapiro, supra note 3, at 282 [A New Regime of Diplomatic Immunity: The Diplomatic
Relations Act of 1978, 54 TUL. L. REV. 661, 664 (1980) (citing H. Grotius, De Jure Belli et
Pacis 201 (W. Whenwell trans. 1853) and 2 H. Grotius, De Jure Belli Ac Pacis 431 (F. Kelsey
trans. 1925))]. See also 767 ThirdAve. Assoc., 988 F.2d at 300.
18. Shapiro, supra note 3, at 282 [A New Regime of Diplomatic Immunity: The Diplomatic
Relations Act of 1978, 54 TUL. L. REV. 661, 664 (1980) (citing H. Grotius, De Jure Belli et
Pacis 201 (W. Whenwell trans. 1853) and 2 H. Grotius, De Jure Belli Ac Pacis 431 (F. Kelsey
trans. 1925))].
19. Id.
20. Farhangi, supra note 15, at 1520, 1521. The note also points out that this theory has
been rejected due to its dangerous consequences. Id.
21. Shapiro, supra note 3, at 282.
22. Id. See also Farhangi, supra note 15, at 1521.
23. Farhangi, supra note 15, at 1521.
24. Diplomatic Immunity, DEP'T ST. DISPATCH, Oct. 22, 1990, v. 1 at 210(1).
25. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3230, 500
U.N.T.S. 95 [hereinafter Vienna Convention].
26. Id.
27. Shapiro, supra note 3, at 284. Limited diplomatic immunity also extends to the
administrative, technical, and service staff of the foreign mission. Id.
28. Vienna Convention, supra note 25, art. 4.
29. Id. art. 7.
 1995] Goldenberg

and exemption from local taxes." In addition, the Convention offers two
resolutions to problems of abuse of local laws. 3' The treaty also provides
for the inviolability of diplomatic missions in Article 22.32 However,
although many concerns seem to be directly addressed by the Convention,
inviolability of the mission, as it is described in the treaty, lends itself to
various interpretations,33 thus leaving room for assorted understandings.

III. THE LANDLORD'S DILEMMA

In May 1982, the Zaire Mission to the United Nations rented an
entire floor in a modern Manhattan high-rise at $19,350 per month.' Soon
after it occupied the premises, the mission encountered problems keeping
up with its rent payments.3" After two judgements in favor of the landlord
and the mission's repeated delinquency in the payment of its rent,36 the
landlord proceeded to reclaim what was his by evicting the mission, only
to discover that it could not be done.3 ' The mission, backed by the United
States government, invoked diplomatic immunity.3" Following a decision
in the landlord's favor and the mission's appeal, the Second Circuit Court
of Appeals held that the mission was inviolable and could not be evicted.3 9
The landlord learned that he had no remedy against this delinquent and
costly tenant other than to throw himself at the mercy of the United States
government and hope that it would persuade the mission to either pay its
debt or move out.'

30. Id. art. 33.

31. Id. art. 9 & 32.
32. Id. art. 22.
33. 767 Third Ave. Assoc. v. Permanent Mission of Zaire to the United Nations, 787 F.
Supp. 389, 394 (S.D.N.Y. 1992). The District Court interpreted the language of the Vienna
Convention not to include the situation at bar. Id. Cf. 767 Third Ave. Assoc. v. Permanent
Mission of Zaire to the United Nations, 988 F.2d at 298 (stating that language of the treaty is so
narrow that no other interpretations are possible).
34. 767 Third Ave. Assoc., 988 F.2d at 296.
35. Id.
36. Id. After some pressure from the United States government, Zaire paid its debts to the
landlord, but thereafter failed to make rent payments as they became due.
37. Id.
38. 767 Third Ave. Assoc., 988 F.2d at 295.
39. Id.
40. David Frum, Diplomatic Immunity, FORBES, Apr. 26, 1993, at 110. Zaire, whose
dictator is a billionaire, is notorious for nonpayment of international debts. As a result, the
United States cut its foreign aid to Zaire from $31 million in 1990 to $3.5 million in 1992.
202 ILSA Journalof International& ComparativeLaw [Vol. 1

A. District Court'sReasoning
Upon review of relevant treaties and documents, the New York
District Court decided that provisions for inviolability of missions were not
prompted by concerns of eviction due to failure to pay rent."' Article 22 of
the 1961 Vienna Convention on Diplomatic Relations, '2 which speaks of
inviolability of foreign missions, states that, with no exception, agents of
the receiving State may not enter the mission's premises unless they are
authorized by the head of the mission. 3 In addition, the Article states that
the receiving State has a special duty to protect the mission's premises
from "any intrusion or damage and to prevent any disturbance of the peace
of the mission or impairment of its dignity."" Read together, the judge
interpreted this language to be based on two considerations: "first, a
perceived need to protect the sovereign from mob violence and other
harassment; and second, recognition that the premises of the sovereign are
entitled to protection from unannounced seizures or other invasions of
privacy. "' The court thought it unlikely that "the treaties intended to
protect diplomats from injuries sustained from a party's lawful efforts to
recover its own property."" In addition, the court stated that eviction
would not be an "unannounced . . . invasion", since the mission has
received ample notice.' 7
Moreover, in response to the mission's argument that eviction will
hinder its function, the court replied that the mission should have looked
for alternate housing if it was not able to meet its financial obligations;
further, the only hinderance to the mission's function was its own inability
to make the required rent payment." Finally, the court rejected the notion
proffered by the Department of State that a single landlord should carry
the burden of our nation's foreign policy,' 9 especially when there was no
proof that American diplomats abroad would feel the consequences of such
eviction." The court stated that if the State Department is concerned with

41. 767 ThirdAve. Assoc., 787 F. Supp. at 389.

42. Vienna Convention, supra note 25.
43. Id.
44. Id.
45. 767 Third Ave. Assoc., 787 F. Supp. at 394.
46. Id.
47. Id.
48. Id. at 395.
49. Id. at 396.
50. 767 Third Ave. Assoc., 787 F. Supp. at 394.
 19951 Goldenberg

the consequences of such action, it should have insured the landlord's rent
payments, possibly by providing an escrow fund for the rent payments.5 '
Reviewing the history of wrongful possession of property by
diplomatic personnel and their missions, one realizes that Judge Sand,
from the Southern District of New York, took a new approach to this
problem. Up to this point, courts avoided speaking out on this issue and
dismissed suits without looking into the merits of their arguments. For
instance, in September of 1991, a Manhattan civil court dismissed an
action attempting to evict a Congo mission counselor for failing to pay
rent, declaring that it had no jurisdiction over diplomatic procbedings, and
therefore deferred to the federal judicial system.52 In light of the rise in
diplomatic personnel in this country such disputes may become more
common and serious. For example, in October of 1991, a landlord sought
a judgment from a federal court to evict a press attache of the Pakistani
mission from his penthouse apartment. 3 The court held that, although the
press attache himself was immune to the suit,' the mission was not.55 The
court cited a Foreign Sovereign Immunities Act provision which explains
that a foreign state is not immune from jurisdiction in cases where rights in
immovable property located in the United States are at issue.56
The District Court demonstrated a new approach and reasoning in
the Zaire case when it interpreted the treaty not to protect the mission from
a civil remedy which would secure a landlord's own property.57 There is
no precedence to the court's ruling, and the Vienna Convention does not
explicitly call for protection of a mission when wrongfully possessing
another's property." The court felt that the mission purposely invoked

51. Id. at 396.

52. Edward Adams, Diplomat Declared Immune from Eviction, Federal Court Suit
Required for Jurisdiction, 206 N.Y. L.J. 51 (1991) See also 28 U.S.C. § 1351 (1993) (which
provides that only federal courts hold jurisdiction over members of a diplomatic mission).
53. Deborah Pines, Diplomatic Immunity No Bar to Eviction, 209 N.Y. L.J. 43 (1991).
54. York River House v. Pakistan Mission to the United Nations, 820 F. Supp. 760, 762
(S.D.N.Y. 1993) (explaining that the press attache was dismissed from the suit by a lower court
on the grounds of diplomatic immunity under art. 31(a) of the Vienna Convention because he was
found to be "the mission's current diplomatic agent in residence").
55. Id. at 760 (stating that the lease to the apartment was in the name of the mission, not
the attache).
56. Pines, supra note 53 (citing Judge Leval of the New York Civil Court). This case
came to an end following the Second Circuit's announcement that foreign missions cannot be
evicted. Thus, the district court followed this rule expanding it to include private residences of
mission personnel. Id.
57. 767 Third Ave. Assoc., 787 F. Supp. 389.
58. Id. at 394.
204 ILSA Journal of International& ComparativeLaw [Vol. 1

diplomatic immunity while in the wrong, thus abusing its welcome and its
grant of immunity.59 Consequently, the court resorted to equity
considerations in an attempt to provide a remedy that would restore the
landlord to the same or similar condition he was in prior to the mission's
violations.' The only remedy under the existing circumstances seemed to
be eviction, as it was dictated by the District Court. Although the court's
interpretation may have stretched the meaning of the Vienna Convention
beyond the treaty's intent, the court did so in the name of equity, knowing
that if the mission is to stay, the landlord's right to its property would not
be upheld b' the government. 6'

B. Circuit Court's Reasoning

The Second Circuit Court of Appeals interpreted Article 22 of the
Vienna Convention to include immunity from eviction. Article 22 states
that the premises of a mission are inviolable, and that receiving states
officials cannot enter the premises without explicit consent of the mission's
head. 62 The court held that this includes eviction. In its reasoning, the
court pointed to previous examples in which United States officials were
not permitted to enter foreign missions without explicit permission even
though its occupiers were endangered.63 The court feared that violation of
the Vienna Convention may have grave consequences for American
diplomats abroad. '
The Circuit Court correctly pointed out the treaty's statement of
the mission's inviolability, and the requirement of explicit consent before
entering the mission's premises.6' The Vienna Convention provides that
"[tihe premises of the mission . . . shall be immune from search,
requisition, attachment, or execution." ' Some commentators interpret
these provisions to unquestionably prescribe inviolability even when the

59. Id. at 390.

60. Id. at 391.
61. Id. at 396.
62. Vienna Convention, supra note 25, art. 22.
63. 767 Third Ave. Assoc., 988 F.2d at 301 (referring to an incident in 1979 when the
Soviet mission to the United States was bombed and the FBI was not allowed entry until the
mission head consented).
64. Id. at 300.
65. Vienna Convention, supra note 25, art. 1 (providing that regardless of ownership, all
ancillary land is to be part of the mission's premises).
66. Vienna Convention, supra note 25, art. 22.
1995] Goldenberg

mission is involved in an unlawful act.' Such contentions are based on the

explicit refusal of the treaty's drafters to include exceptions to inviolability
despite evident abuses of local laws.' Since the treaty lists no exceptions
to the consent requirement, the court interpreted the treaty to signify that
no exceptions were intended. Therefore, the United States Marshall could
not enter the premises to evict the mission.' In light of other opinions on
this issue, the court's rationale for such strict interpretation is not a blind
adherence to a rule of law in an international treaty uncaring of justice at
home, but that by upsetting existing treaty relationships, American
diplomats abroad may well be denied lawful protection of their lives and
property to which they would otherwise be entitled. That possibility
weighs so heavily on the scales of justice that it militates against
enforcement of the landlord's right to obtain possession of its property for
rental arrears.7 °
The court thus adopts from the State Department the argument that
eviction of the delinquent mission will expose diplomats abroad to harm:
The risk . . . is of course that American missions abroad
would be exposed to incursions that are legal under a
foreign state's law. Foreign law might be vastly different
from our own, and might provide few, if any, substantive
or procedural projections for American diplomatic
personnel. Were the United States to adopt exceptions to
the inviolability of foreign missions here, it would be
stripped of its most powerful defense, that is, that
international law precludes the nonconsensual entry of its
missions abroad.'
The judge explains that the only way to guarantee the protection of
American diplomats abroad "is through blanket immunities and privileges
without exceptions".' Finally, the court points out that in recent years,
many reforms to various diplomatic immunities have been suggested and

67. See Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent
United Kingdom Experience, 79 AM. J. INT'L L. 641, 647 (1985).
68. Id.
69. 767 Third Ave. Assoc., 988 F.2d at 301.
70. Id. at 296.
71. Id. at 300-01.
72. Id. The judge also discussed the fact that even after an exception to the inviolability
provision was proposed, the drafters of the Vienna Convention declined to adopt it and the
exception never resurfaced. Id.
206 ILSA Journalof International& ComparativeLaw [Vol. 1

implemented, but none concerning mission inviolability.73 The court

agrees that reform is in order and even suggests taking a second look at the
Vienna Convention, but the court is of the opinion that it is not the courts'
terrain to take a second look at the Convention.7" Instead, the court avidly
points to Congress for action. 5 Although the outcome of this case does not
incite any enthusiasm, one must agree with the court's position,
particularly after reviewing the government's foreign affairs policy on the
issue of diplomatic immunity.

IV. DEPARTMENT OF STATE POLICY

In cases involving diplomatic immunity, judges inevitably turn to
the Department of State (Department) for clarification, opinion, or
solution. Whether directly or indirectly, the Department is invariably
involved in every action arising out of diplomatic immunity. In 1990, the
Department clarified the nature of diplomatic immunity, the Department's
practices, and future trends and practices around the world. In its
opinion, "immunity protects the channels of diplomatic communication by
exempting diplomats from local jurisdiction so that they can perform their
duties with freedom, independence, and security." 76 Due to the large
number of American diplomatic and consular personnel stationed in
countries where individual rights do not enjoy the same protection as in the
United States, the United States considers the Vienna Conventions to be of
extraordinary importance." Therefore, the Department insists, a slight
variation from the treaties in dealing with diplomatic immunities could lead
to harsher treatment of our diplomats abroad."
In 1987, the Department promptly intervened in Congress' debate
on the passage of a bill that intended to limit diplomatic immunity. In light
of its policy, the Department of State's Chief of Protocol, Ambassador
Selwa Roosevelt, voiced concerns and represented the Department's
position and policy on this issue before the Senate Foreign Relations
Committee. 9 Ambassador Roosevelt noted that diplomatic immunity

73. Id. at 302.

74. 767 Third Ave. Assoc., 988 F.2d at 302.
75. Id.
76. Diplomatic Immunity, supra note 24.
77. Id.
78. Id.
79. Ambassador Selwa Roosevelt's statement, Dept. of St. Chief of Protocol, before the
Senate Foreign Relations Committee in DEP'T ST. BULL., Oct. 1987, v. 87 at 29 [hereinafter
Roosevelt].
1995] Goldenberg

existed "to assure that diplomatic representatives are able to carry out the
official business of their governments without undue influence or
interference from the host country. [Immunity] enables them to work in
an environment of freedom, independence, and security. "" The Chief of
Protocol then stated that, in light of the function of diplomatic immunity,
the Department of State could not support a bill which would narrow
diplomatic immunity. 8' Such efforts would endanger American diplomats
abroad and greatly interfere with the United States foreign affairs. 2
However, Ambassador Roosevelt pointed out that steps have been taken to
curb abuses of diplomatic immunity, particularly criminal offenses.83 For
example, a system to bar reentry of serious offenders has been initiated.
The Department circulated written guidance to police on how to handle
incidents involving diplomatic and consular personnel and urged law
enforcement officers to pursue possible charges.' In addition, the Chief of
Protocol promised that in particularly outrageous incidents involving
juvenile offenders, the entire family would be expelled.85 The Department
of State also assured the Committee that traffic offenses were closely
monitored and driving while under the influence laws strictly enforced
with diplomatic and consular personnel.86 Moreover, failure to comply
with local firearm laws would expose a diplomat to expulsion. 7 Finally,
Ambassador Roosevelt announced that foreign personnel would be
required to carry identification cards which list types of immunities a
particular individual enjoys, and provide a 24-hour telephone number to
answer questions about the particular person or issue.8 The Department of
State vowed that it stands ready to take action in any situation in which a
person with immunity violates American law."
In addition to her address to the Senate Foreign Relations
Committee, Ambassador Roosevelt circulated a note to the Chiefs of
Mission at Washington in which she reminded them of the "serious
concern of the United States Government at alleged criminal activity by

80. Id.
81. Id.at 29.
82. Id.
83. Id. at 30.
84. Roosevelt, supra note 79, at 30-31.
85. Id. at 31. This should promote parents' accountability for their children's conduct.
86. Id.
87. Id.
88. Id.
89. Roosevelt, supra note 79, at 32.
208 ILSA Journalof International & ComparativeLaw [Vol. 1

certain members of diplomatic missions or members of their families. "

The note pointed out that neither the Department of State nor the
community tolerate criminal violations, and reminded the missions of the
corrective measures available under international law.9' The Ambassador
reiterated that the Department, in case of a criminal violation, requests
9
from the mission a waiver of immunity in order to prosecute the offender. 2
In case such waiver is not granted the Department requires expulsion of
the offender.' Further, the note stated that "in all cases involving injury
to persons or damage to property, the Department pursues vigorously the
interests of the aggrieved parties in obtaining prompt restitution by
individual offenders or by their governments.'"I
It appears that the Department of State is willing to address abuses
when they are particularly grave. However, abuses that do not involve a
threat to another's life or are equally damaging seem to attract less of the
Department's attention. There may be room for a bit of optimism; a
change in the State Department's approach to less severe abuses might be
occurring. In 1992, a French news agency reported the United States
government's direct involvement in rent disputes between two American
landlords and two foreign missions." The agency related that the State
Department threatened to expel two Zairian and two Congolese diplomats
if their delinquent rent was not paid within thirty days." The report also
stated that it was the first time in Department of State's history that it
threatened expulsion of diplomats due to an abuse of "privilege of
residence" in either New York City or Washington D.C.9' Although the
government later argued that eviction in this situation is not a valid
solution under applicable treaties," the government at least made an effort
to address the landlord's complaint - a step the government had not been
willing to take in the past. It remains to be seen whether this trend will
continue into the future. Moreover, would the Department be willing to
take the next step and expel the delinquent tenants upon non-payment? In

90. Marian N. Leich, Crimes by Foreign Mission Personnel: CorrectiveMeasures, 82 AM.

J. INT'L L. 106 (1988).
91. Id.
92. Id.
93. Id.
94. Id.. at 107.
95. Washington Threatens to Expel U.N. Diplomats over Back Rent, AGENCE FRANCE
PRESSE, Mar. 26, 1992, availablein LEXIS, World Library, Allnws File.
96. Id.
97. Id.
98. 767 Third Ave. Assoc., 988 F.2d at 295.
 1995] Goldenberg

other words, will our government flex its muscle at issues that concern the
economic well-being of our citizens?

V. RELATED LEGISLATION
Each time a court delivers its opinion on the issue of diplomatic
immunity, it urges Congress to address the issue." In response, Congress
enacted several statutes. In 1978, Congress passed the Diplomatic
Relations Act ("Act") to replace a 1790 statute which was inconsistent
with the diplomatic relations provisions of the 1961 Vienna Convention."w
In addition to codifying the necessary provisions of the Vienna
Convention, Congress included in the Act, inter alia, a requirement that
diplomatic personnel carry automobile liability insurance.'"' This specific
provision came as a direct response to other countries' requirement that
American diplomats carry liability insurance."'° In 1983 Congress
amended the Act to hold embassies responsible for full liability insurance
coverage for their diplomats.' 3 This provision provides a plaintiff with a
right to sue the insurer directly. The Act also confers power on the
President of the United States to specify greater or lesser immunity
protection for certain diplomats, based on reciprocity." °4 This accords the
President wide discretion for the grant of diplomatic immunity.
In 1982 Congress passed the Foreign Missions Act ("FMA"). °5
The FMA established a duty in the government to oversee the activities of
all foreign missions in the United States. 'I This act was passed largely in
response to reports that certain foreign countries placed restrictions on
American missions in connection with office space and/or housing
accommodations. 'I The intent of the FMA is to ensure that our diplomatic

99. The doctrine of non-justiciability, applicable in this area of law, does not permit courts
to meddle in foreign affairs. The doctrine addresses courts' authority to hear cases. Specifically,
the issue addressed is whether a case involves a political or legal question. Although it is not yet
completely clear what comprises a political question, most courts recognize the area of foreign
relations as a political question that is non-justiciable. See Baker v. Carr, 369 U.S. 186 (1961).
100. David H. Goodman, The U.S. Needs To Play HardBall, 11 Hous. J.INT'L L. 395,
399-400 (1989).
101. Id.
102. Id.
103. Id.
104. Shapiro, supra note 3, at 286.
105. Foreign Missions Act, 22 U.S.C. §§ 4301 (1993). See, e.g., Andrew Odell, Foreign
Governments as Tenants, 56 N.Y. ST. B.J. 28, 29 (1984).
106. Odell, supra note 105, at 29.
107. Id.
210 ILSA Journal of International& ComparativeLaw [Vol. 1

missions abroad are treated the same way as their counterparts in the
United States. Accordingly, the act established the Office of Foreign
Mission with the responsibility of approving foreign missions' transactions
involving real estate in the United States.'0 This creates a duty in the
foreign missions to report to the Office when such a transaction is
planned.'"9 Consequently, if a foreign mission fails to comply with this
requirement, the Secretary of State has the authority to dispossess the
mission of its premises in the United States.' 0 Although this act satisfies
informational needs, it provides little protection to Americans once its
requirements are met.
The Foreign Sovereign Immunities Act of 1976 (FSIA)"' vests
authority in the judiciary to decide when a foreign state is immune from a
lawsuit and when immunity does not apply." 2 However, the act also
provides that it operates "[s]ubject to existing international agreements to
which the United States is a party.""' 3 The FSIA grants immunity only to
public acts, but such immunity does not apply in commercial or private
transactions."" Thus, although the act seems to expand the basis of
liability for foreign states, it parallels directly the diplomatic immunity
provisions of the Vienna Convention since such immunity applies only
when a diplomat acts within the scope of his or her function.
Furthermore, since an act within the scope of a diplomat's function is also
a public/governmental act, it is excluded from FSIA's applicability.
Therefore, when a diplomat breaks the law and diplomatic immunity
applies, the FSIA will not be able to strip it away. Accordingly, the FSIA
applies mostly to private foreign undertakings, not to diplomatic personnel
and missions." 5
Another bit of legislation on the issue of immunity is the Alien
Tort Claims Act."16 This act provides a United States forum for civil
litigation against another country's national in cases of injury to American

108. Id.
109. Id.
110. Id.
111. Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 (1988).
112. Id. In its definition of "foreign state", the FSIA includes a political subdivision or
agency or instrumentality of the state. Id. at §1603.
113. Id. §1609.
114. Id. §1603.
115. 767 Third Ave. Assoc., 988 F.2d at 297.
116. Alien Torts Claims Act, 28 U.S.C. §1350 (1993). The act provides federal
jurisdiction in civil actions "by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States." Id.
19951 Goldenberg

citizens. Although only a few courts have recognized such actions," 7 the
Alien Tort Claims Act could eventually open the door for cases against
persons with diplomatic immunity after their departure, which previously
could not be litigated in the United States.
Other acts concerning administration of and arrangements with
international entities have been passed, but very few apply directly to
abuses of diplomatic immunity. In 1987, Senator Helms introduced a bill
entitled the "Diplomatic Immunity Abuse Prevention Act" which would
vastly curb abuses by foreign diplomats." 8 This bill would subject "certain
members of foreign diplomatic missions and consular posts in the United
States . . . to the criminal jurisdiction of the United States with respect to
crimes of violence.""' 9 Upon consultation, the Department of State
announced that it could not support the proposed bill beeause it would be
detrimental to United States' interests abroad.2 0 The bill proposed
eliminating immunity for crimes of violence, a large category of crimes,
and the Department of State feared that other countries would eliminate
immunity on a broader scale and thus expose American diplomatic
personnel to arrest and detention without bail.' Although the bill
proposed to cover only members of the administrative, technical, and
service staff, the Department explained that such team members must have
full criminal immunity in order to effectively perform their work.' The
bill also proposed to lift immunity from family members of diplomats,
which provoked a negative response from the Department to this
provision, -because a diplomat could not properly perform his or her duty
knowing that a family member is being prosecuted.' In addition, the
Department argued that lifting immunity from family members might
encourage false charges as a technique of intimidation.' The bill was

117. Von Dardel v. U.S.S.R., 623 F. Supp. 246 (D.D.C. 1985); see also Forti v. Suarez-
Mason, 694 F. Supp. 707 (N.D. Cal. 1988). Most cases are usually dismissed on the basis of the
well recognized forum non-convenience doctrine.
118. S. Doc. No. 1437, 100th Cong., Ist Sess. (1987).
119. Leich, supra note 90, at 107.
120. Id.
121. Id. at 108.
122. Id. Such work includes transmitting encoded messages and preparing classified
documents. Id. Therefore, it would be unjust to afford immunity to the ambassador, the FBI or
military attache, or other personnel engaged in work such as fighting terrorism, and expose those
who do their clerical work and transmit classified communications to interrogation and jail by
hostile authorities. Id.
123. Id.
124. Leich, supra note 90, at 108.
212 ILSA Journalof International & Comparative Law [Vol. 1

approved in the Senate but rejected in the House of Representatives.'25 A

revised version of the bill was introduced the following year.'26 The new
proposal called for stringent enforcement of available solutions,' 2 and for
mandatory liability insurance carried by foreign missions for compensation
of injuries to persons or property.'28
Other bills to curb diplomatic immunity have been and are still
introduced in Congress, but most do not pass. Such bills either demand
too much modification to existing treaties, which threatens our diplomats'
freedom abroad, or propose unreasonable solutions to existing problems.
One such bill proposed that the United States form a claims fund for
awarding full compensation to victims of diplomatic immunity abuses. 29'
This bill was rejected due to its high cost and lack of incentive to foreign
diplomats to abstain from abuses of immunity.'30 It is evident that
Congress has been struggling to pass legislation that will both
accommodate victims of diplomatic abuse and discourage foreign
diplomats from violating American laws. However, it seems almost
impossible to achieve both goals, especially if most legislation on the issue
is written in response to events in other States, not as a consequence to
occurrences in our own country.

VI. THE CIRCUIT COURT'S REASONING JUSTIFIED BY OTHER

OCCURRENCES

The problem of diplomatic immunity abuses is common to other

countries of the world, as well. The unanticipated phenomena is that other
governments, like the United States at times, apply a "hands-off" policy,
shying away from retaliation of diplomatic immunity abuses. This
practice, although unexpected at first glance, is quite understandable in
light of the policy previously voiced by the Department of State. Events in
England, for example, required the British government to take a close look
at the provisions of the Vienna Convention granting diplomatic immunity
to decide whether some amendments or local provisions limiting immunity
were necessary."'3 This scrutiny of international law stemmed from events
in 1984, when shots were fired from the Libyan Embassy, killing British

125. Shapiro, supra note 3, at 304.

126. 134 CONG. REC. S16,036, S16,045 (daily ed. Oct. 14, 1988).
127. See Shapiro, supra note 3, at 306.
128. Id.
129. See Goodman, supra note 100, at 410.
130. Id.
131. Higgins, supra note 67, at 645.
1995] Goldenberg

citizens demonstrating in front of it."' When the British government

petitioned Libya to vacate the premises so that police could search the
Embassy for weapons, the request was refused.'33 The United Kingdom
then proposed a safe exchange of Libyan diplomatic personnel for British
diplomatic personnel, and requested assurance that all weapons and
explosives be removed from the Libyan Embassy." These proposals were
similarly refused. 35 Finally, following a terrorist explosion in Heathrow
International airport which injured twenty five people, the United Kingdom
terminated diplomatic relations with Libya and, its Embassy in London
was evacuated.'36 In response to public outrage about such blunt abuse of
immunity, the British government formed a committee to look into
diplomatic immunity laws and suggest proposals for ensuing actions.'37
Specifically, it was felt that diplomats who act inconsistently with their
diplomatic status should not be immune from prosecution, that suspicious
diplomatic bags should be searched and that premises which are the site of
unlawful acts should not be afforded inviolability.'38 Following an
investigation, the committee pointed out that a serious consideration to any
amendments must be the safety of British diplomats in foreign countries - a
familiar concern. '" The committee then stated that, in all of the three
specific respects, existing remedies were sufficient, and did not
recommend further action.' ° The British government implemented the
committee's advice, leaving diplomatic immunity laws unchanged.'' The
United States Department of State pointed to the United Kingdom study
while debating the downside of S. 1437, Senator Helms' proposed bill to
curb diplomatic immunity.' 2 Similarly, when the Second Circuit Court
examined Department of State policy and saw that the government looked
to other countries for trends in coping with immunity problems, the court
was encouraged to rule in favor of our foreign affairs policy,
acknowledging it as a political problem common to countries with similar

132. Id. at 643.

133. Id. at 644.
134. Id.
135. Id.
136. Higgins, supra note 67, at 647.
137. Id. at 645. See Leich, supra note 90, at 109.
138. Higgins, supra note 67, at 644.
139. Id. at 645.
140. Id.
141. Id.
142. Leich, supra note 90, at 109.
214 ILSA Journal of International& ComparativeLaw [Vol. 1

political structure. Thus, the United States is not alone "putting down its
stubborn foot" in refusing to change the law of diplomatic immunity.
What, then, are the possible remedies for abuse of diplomatic
immunity? Solutions to the dilemma of diplomatic abuses are as frequently
discussed as the problem itself. The Vienna Convention provides
guidelines for dealing with such abuses.'"3 Article 9 of the Convention
enables the receiving State to declare any member of the mission a persona
non grata, upon which the sending State must either recall that person or
terminate his or her function with the mission.'" In addition, the
Convention provides in Article 32 that immunity of a diplomatic agent may
be waived by the sending state.' 5 Both provisions are rarely utilized.
Furthermore, the persona non grata provision does not compensate the
victim of abuse and does little to deter such abuse, since diplomats know
that their most threatening punishment could be expulsion. In theory, the
waiver provision serves the needs of the hosting governments; in practice
however, it is almost impossible to attain. It is neither required that a
sending state waive its diplomat's immunity, nor does the Convention
provide an enforcement mechanism to compel such waivers.'" Thus,
although, in theory, the waiver clause provides a perfect solution to the
problem of diplomatic abuses of local law, in practice it is merely another
remedy to which one cannot resort, particularly for offenses of smaller
magnitude, such as traffic violations or landlord-tenant disputes.
Other proposed solutions are numerous. What follows is a
summary of the most prominent ones. One answer to abuse is to allow the
plaintiff to bring suit in the sending state."" This would provide a victim
with a chance for compensation when it is not possible to sue the party in
the United States. An attempt to bring suit in the sending state may appear
to be a good solution; nonetheless, it is very impractical. Such an attempt
would be hindered by the high costs of litigating in a foreign state, by the
difference in legal systems, and by the possibility of a hostile national
climate towards the United States.'" Another popular recommendation is
an amendment of the Vienna Convention. 9 However, the treaty does not

143. Vienna Convention, supra note 25.

144. Id. art. 9.
145. Id. art. 32.
146. Id.
147. Shapiro, supra note 3, at 297.
148. Id.
149. See Goodman, supra note 100, at 407.
19951 Goldenberg

provide for a formal procedure to amend its provisions.1 0 In addition,

amending the Vienna Convention would require reaching an agreement
among 140 countries,"' a task easier said than done.
Some of the more viable solutions include creating a limited
federal claims fund enforced by the government.'5 The rationale for this
proposal is that it is "[t]he government and U.S. diplomats abroad [who]
reap the prime benefits of diplomatic immunity, not the average citizen.
Therefore . . . the burden of diplomatic immunity . . . 'should not be
borne by people who are really just innocent third parties."" 53 This
solution seems reasonable and might even be workable. In order to
facilitate this idea, a proposal has been made to establish an agency within
the Department of State for administering a limited fund for the
compensation of victims.' 5' Once the agency would make a decision to
compensate and awards the applicable amount to the victim, the agency
would be in the best position to pursue reimbursement of such an amount
from the offending diplomat's country.' 53 The key to this solution would
lie in the government's ability to compel reimbursement to the limited
fund. '" Although this solution would not provide complete compensation,
it is very workable and quite realistic.
The most popular solution to the problem is the implementation of
an insurance scheme.5 Such plan would require embassies and missions
to carry liability insurance coverage as a prerequisite to diplomatic
relations in the United States, ' augmenting the insurance provision of the
Diplomatic Relations Act of 1978"" which requires foreign diplomats to
carry liability automobile insurance.' ° The beauty of this solution is that
the victim can sue the insurance carrier directly, without involving the
foreign party. The augmented version of the insurance scheme would
place a requirement on the foreign mission to carry liability insurance for

150. Id. at 408.

151. Id.
152. Id. at 410.
153. Goodman, supra note 100, at 411 (quoting Senator Hathaway).
154. See Goodman, supra note 100, at 407.
155. Id.
156. Id.
157. Farhangi, supra note 15, at 1538.
158. Id.
159. Goodman, supra note 100, at 400.
160. Id.
216 ILSA Journal of International& ComparativeLaw [Vol. 1

injury to persons or property. 6 The insurance would provide restitution to

the injured party and would not discourage private citizens from further
commercial transactions with foreign parties. The difficulty with such
provisions is the lack of an enforcement mechanism. Maintenance of such
an insurance requirement would necessitate enforcement on the level of
Vienna Convention provisions, i.e. declaring a noninsured or underinsured
diplomat as a persona non grata.'62 Until the Department of State finds an
efficient way to enforce the insurance requirement, such provisions and
unenforceable plans will remain useless.
Numerous other solutions have been avidly recommended, but
only a few were implemented by Congress. Should Congress ever decide
to reform the area of diplomatic immunity in the future, it will find a vast
pool of new suggestions, and even though any particular solution might not
be suitable, a combination of several might prove useful and effective.
Thus, it is not for the lack of ideas that the law has not been reformed.

VII. CONCLUSION
Although solutions to abuses of diplomatic immunity and their
effectiveness are controversial, one matter is clear: the government sees
the weaknesses of the current law, and has the ability, if not always the
will, to improve the situation. Unfortunately for the landlord, in this
instance, he/she is left without a remedy. The landlord can only hope that
the government will pursue his/her interests and will persuade the offender
to withdraw. Our government's policy is consistent with the purposes of
diplomatic immunity and the practices of other nations. Therefore,
although it is now understandable why courts are reluctant to act against
foreign diplomats, the government should use all means in its power to
assure the United States citizen's rights and fully compensate him or her.
Anything short of that would only create more bad feelings towards our
"guests" from abroad, and inhibit any sort of transactions among United
States citizens and foreign diplomats. Since the government has once
before shown a hint of improvement in demanding due compensation from
delinquent diplomats, we can only hope that it will continue down this
path, and that it was not a mere exception to its usually disinterested
demeanor.

161. Shapiro, supra note 3, at 300.

162. Farhangi, supra note 15, at 1538.