THE UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

In Re: AIR CRASH AT AGANA, GUAM )

ON AUGUST 6, 1997 )

) CASE NO. CV 97-7023 HLH (RCx)

) M.D.L. No. 1237;

) M.L. No. 98ML7211

)

)

DECLARATION OF EDWARD A. BETANCOURT

I, Edward A. Betancourt, hereby depose and say as follows:

1\. I am the Director of the Office of Policy Review and Inter-Agency
Liaison ("PRI") in the Directorate of Overseas Citizens Services ("OCS")
of the Bureau of Consular Affairs ("CA") in the United States Department
of State. I have been employed as an Attorney Adviser in the Bureau of
Consular Affairs since 1974.

2\. My office, CA/OCS/PRI, is responsible for providing legal advice to
the CA/OCS about the performance of OCS functions, and to consular
officers abroad about the performance of citizens services, including
services in connection with litigation. My office is also responsible
for drafting the Department's regulations at Title 22 of the Code of
Federal Regulations relating to such services, and for drafting Volume 7
of the Foreign Affairs Manual ("FAM"), which contains the Department's
instructions to its employees relating to such services. In providing
legal advice and drafting regulations and FAM provisions, my office
works in consultation with the Legal Adviser's Office of the Department
of State to ensure a consistent understanding of the legal principles
applicable to the performance of overseas citizens services.

3\. OCS is responsible, [inter]{.underline} [alia]{.underline}, for
receiving and transmitting requests for international judicial
assistance under 28 USC 1781 (See 22 CFR Section 92.67), as well as for
other legal assistance requests that foreign States may make via the
diplomatic channel to the United States, including those for which
assistance may be available under 28 USC 1782. The Department's
regulations on such matters are set forth at 22 CFR sections 92.49
through 92.71.

4\. OCS is also responsible for other aspects of international judicial
assistance in cases in which the United States Government is involved.
Its responsibilities include obtaining host country clearance for the
travel of U.S. Government officials abroad to conduct voluntary
depositions, interviews, inspections or other activities related to
discovery in civil litigation.

5\. OCS's responsibilities are derived from U.S. consular treaty
obligations, 22 USC 4215, 4221, 22 CFR Part 92 et. seq., Rule 28(b),
Federal Rules of Civil Procedure, and authority delegated to the Bureau
of Consular Affairs by the U.S. Secretary of State. OCS's judicial
assistance functions are set forth in Volume 7, Chapter 900 of the FAM,
which is available via the internet at the U.S. Department of State,
Bureau of Consular Affairs home page link at http://travel.state.gov.
When civil litigants involved in a case pending in a court of the United
States wish to take discovery abroad, OCS seeks to facilitate those
efforts to the extent possible consistent with law. The relevant legal
requirements include a requirement that all activities of U.S. consular
officers abroad in assisting in the discovery be consistent with the
laws of the host country, and that any activities of other U.S.
government officials involved in the discovery also be consistent with
the laws of the host country. Thus, the Department's regulations contain
the following prohibition in 22 CFR section 92.55(c):

> [Procedure where laws of the foreign country do not permit the taking
> of depositions:]{.underline} In countries where the right to take
> depositions is not secured by treaty, notarizing officers \[i.e.,
> consular officers\] may take depositions only if the laws or
> authorities of the national government will permit them to do so.
> Notarizing officers in countries where the taking of depositions is
> not permitted who receive notices or commissions for taking
> depositions should return the documents to the parties from whom they
> are received explaining why they are returning them, and indicating
> what other method or methods may be available for obtaining the
> depositions, whether by letters rogatory or otherwise."

6\. It is axiomatic that the laws of the host country must be respected
by all persons in that country. Customary international law requires
that countries respect each other's sovereign authority within their
territory, including the right to make and enforce legal requirements
relating to the judicial process. The requirement that the laws of the
host country be respected applies to foreign diplomatic and consular
officials as well as to persons traveling in a foreign country in a
private capacity. Thus, the Vienna Convention on Diplomatic Relations
("VCDR"), in Article 41 provides as follows with respect to diplomatic
personnel: "Without prejudice to their privileges and immunities, it is
the duty of all persons enjoying such privileges and immunities to
respect the laws and regulations of the receiving State. They also have
a duty not to interfere in the internal affairs of that State." The
Vienna Convention on Consular Relations ("VCCR"), in Article 55,
similarly provides that consular officials entitled to immunity from
prosecution in the host country under the VCCR must respect the laws of
the host country. These requirements would expressly pertain to the
activities of any consular official assigned to the host country being
asked to assist in U.S. civil discovery, since such official would be
covered either by the VCDR (if assigned to the U.S. embassy and therefor
in diplomatic status) or the VCCR (if assigned to a U.S. consular post
).

7\. U.S. Government officials traveling abroad on temporary official
business must equally respect local law and, unlike a consular official
assigned abroad, do not have immunity from prosecution for acts taken in
violation of local law even if those activities are taken in their
official capacity as a U.S. Government employee. Thus, if a U.S.
government official travels abroad and acts contrary to local law,
including by engaging in discovery efforts that the host country
considers unauthorized, that official may have no protection from
prosecution and may be subject to the full scope of potential penalties
that the host country might impose for the violation. Moreover, no one
may practice law unless appropriately licensed and/or authorized by the
jurisdiction in which the practice is undertaken. Thus neither U.S.
private counsel nor U.S. Department of Justice lawyers may act as
lawyers in Korea except as permitted/authorized by Korea.

8\. The Department of State's host country clearance process has been
established in part to ensure that, consistent with the above
requirements, U.S. government officials do not travel abroad to engage
in activities that will violate the laws of the foreign country they
travel to. Acting in violation of local law puts the U.S. government
official at risk of prosecution and may cause serious foreign policy
problems for the United States. Accordingly, all U.S. Government
officials are required to obtain the consent of the U.S. Ambassador or
other official -- generally referred to as the "Chief of Mission" -- in
charge of the U.S. diplomatic or other mission to the country in
question. This authority is vested in the Chief of Mission pursuant to
the Chief of Mission's authorities under Section 207 of the Foreign
Service Act of 1980, 22 USC Section 3927, which provides in relevant
part that, "Under the direction of the President, the chief of mission
to a foreign country (1) shall have full responsibility for the
direction, coordination, and supervision of all Government executive
branch employees in the country (except for employees under the command
of a United States area military commander)." In addition, each
President issues to his Chiefs of Mission a letter of instruction, the
current version of which is reprinted at 1 Foreign Affairs Manual
Chapter 013, Exhibit 013.2, and a copy of which is attached as *Exhibit
\"C*\"*.* This letter reinforces the Chief of Mission's authority over
and responsibility for all U.S. government civilian personnel in the
country in question. Procedures regarding host country clearance for
such travel are set forth at 7 Foreign Affairs Manual 941 and
instructions are also available on the Bureau of Consular Affairs home
page at http:travel.state.gov/host_country.html. Copies of these
procedural instructions are annexed as *Exhibit "D"*. When appropriate,
the U.S. Chief of Mission will ensure that the host government has no
objection to the proposed U.S. government activity. When the host
government advises that the proposed activity is not legally
permissible, then the U.S. Chief of Mission is expected to deny country
clearance.

9\. Judicial assistance between the United States and Korea in civil and
administrative matters is governed by Article 4 (c) of the U.S. - Korea
Consular Convention of 1963 (14 UST 1637) (See Exhibit "A"), customary
international law and the practice of nations, and applicable U.S. and
local Korean law and regulations. Article 4 of the U.S. - Korea Consular
Convention provides that consular officers may:

> *(b) prepare, attest, receive the acknowledgements of, certify,
> authenticate, legalize, and, in general, take such action as may be
> necessary to perfect or to validate any act, document, or instrument
> of a legal character, as well as copies thereof, including commercial
> documents, declarations, registrations, testamentary dispositions, and
> contracts, whenever such services are required by a national of the
> sending state for use outside the territory of the receiving state or
> by any person for use in the territory of the sending state.*
>
> *(c) take evidence, on behalf of the courts of the sending state,
> voluntarily given by any person in the receiving state, and administer
> oaths to such persons, in accordance with the laws of the sending
> state; td (ii) take depositions, on behalf of the courts or other
> judicial tribunals or authorities of the sending state, voluntarily
> given.*

10\. The Government of Korea has advised the United States of procedures
it considers acceptable under Korean law and practice, and under its
interpretation of the U.S. - Korean Consular Convention concerning
obtaining evidence in Korea. These procedures are summarized in general
in OCS's information flyer, "Obtaining Evidence in Korea", a copy of
which is annexed as *Exhibit "B"*. Information regarding judicial
assistance in Korea is also available via the Department of State,
Bureau of Consular Affairs home page on the internet at
http://travel.state.gov under the heading, "judicial assistance\". As
noted above, the right of a foreign State to determine the conditions
for taking evidence in its territory in aid of litigation in another
State is a fundamental attribute of sovereignty. It is, for example,
recognized in the Restatement (Third) of Foreign Relations Law, Sec. 473
(1); 474, Comment c; Reporters' Notes 6 (1987).

11\. Pursuant to Article 4 (c) of the U.S. - Korea Consular Convention,
as interpreted by the United States and Korea following extensive
consultations, depositions of willing witnesses may be conducted in
Korea under agreed-upon conditions. Depositions may be taken of willing
witnesses at the U.S. Embassy or other location presided over by a U.S.
consular officer. The U.S. consular officer administers oaths to the
witness(es), interpreter, stenographer or videotape operator.

12\. In addition, depositions may be taken pursuant to local law by
private Korean local counsel. The deponent and deposing Korean attorney
must then go to a local Korean court after the deposition is completed
to confirm the validity of the testimony and submit the deposition to
the Korean court. Further, testimony may be taken by a Korean court
pursuant to a letter rogatory.

13\. The Government of Korea has advised the United States that it
opposes deviations from these conditions, and that it would consider any
action beyond the strictures of the U.S.-Korean understanding to be a
violation of its judicial sovereignty. Again, as noted, the United
States recognizes the right of judicial sovereignty of foreign
governments based on customary international law and practice; See,
e.g., the Restatement (Third) of Foreign Relations Law (1987).

14\. When a proposed procedure for taking a deposition in Korea is not
legally permissible, the deposition cannot be taken using that procedure
at the U.S. embassy or a U.S. consulate. Contrary to some popular
misconceptions, U.S. diplomatic and consular premises are not U.S.
territory governed by U.S. law rather than the law of the country in
which they are physically located (commonly referred to as "the
receiving state" or the "host country" -- in this case, Korea). They are
properties in the territory of of the host country and the laws of the
host country apply to conduct in the diplomatic and consular premises as
well as outside of them. The status of diplomatic and consular premises
arises from the rules of law relating to immunity from the prescriptive
and enforcement jurisdiction of the receiving state; the premises are
not part of the territory of the sending state. See Restatement (Third)
of Foreign Relations Law, Vol. 1, Sec. 466, Comment a and c (1987). See
also, [Persinger v. Iran]{.underline}, 729 F.2d 835, (D.C. Cir. 1984).
Thus, if it would violate Korean law for a deposition to be taken in
Korea by a U.S. government official other than a consular official,
Korean law will be violated regardless of whether the deposition is
taken in the U.S. embassy or at a private location such as a hotel in
Korea. The same would be true if the deposition were taken on a U.S.
military base in Korea, since the U.S. - Korea Status of Forces
Agreement makes no different provisions for depositions on such bases.

15\. In the present case, when asked to facilitate the taking of
depositions in Korea, CA/OCS and the U.S. Embassy in Korea considered it
essential, given our understanding of the attitudes of the Government of
Korea, to obtain the consent of the Government of Korea prior to
scheduling the proposed depositions, given that the depositions would in
part be taken directly by U.S. government officials other than consular
officials -- i.e., by U.S. Department of Justice attorneys. In our
experience, foreign host governments may regard travel of U.S.
Government officials in judicial assistance matters as a violation of
judicial sovereignty unless advance clearance has been obtained through
diplomatic channels. The United States has similar requirements with
respect to the travel of foreign government officials to the United
States in judicial assistance matters (18 USC 951, 28 CFR 73). Travel
abroad without prior clearance can result in the arrest, detention,
expulsion, or deportation of the U.S. Government official. Thus, the
request for host country clearance for the travel of U.S. Government
officials to participate in the taking of a deposition in Korea requires
the transmittal of a note verbale via diplomatic channels from the U.S.
Embassy in Seoul to the Korean Ministry of Foreign Affairs.

16\. Absent specific authorization from the Ministry of Foreign Affairs
of the foreign State, the U.S. Embassy cannot participate in any way in
the deposition. The participation of a U.S. consular officer to swear
the witnesses knowing that the questioning would be undertaken by U.S.
Justice Department lawyers notwithstanding the Government of Korea's
express advice that such questioning is impermissible would be
prohibited by 22 CFR 92.55(c), quoted above, and would violate the VCDR
requirement, and the customary international law principle, that U.S.
diplomatic and consular officials in Korea respect Korea's laws. See,
Restatement (Third) of Foreign Relations Law, 441-442. See also,
interpretive notes, Rule 28(b), Federal Rules of Civil Procedure which
provides "effectiveness and even availability, of one of the methods
Rule 28(b) provides for taking of depositions in foreign countries
depends largely upon law of foreign country in which deposition is to be
taken." *[Zassenhaus v. Evening Star Newspaper Co]{.underline}*., 404
F2d 1361, (D.C. Cir. (1968), 131 App DC 384. For similar reasons, the
U.S. Embassy cannot grant country clearance to the Justice Department
lawyers knowing that the Government of Korea has advised that such
lawyers' proposed activities in Korea are legally impermissible.

17\. The Department and the U.S. Embassy have made repeated efforts to
obtain the Government of Korea's consent to the proposal that U.S.
Justice Department lawyers be permitted to take the depositions in Korea
as proposed. Between May and December 1999, the U.S. Embassy in Seoul,
Korea engaged authorities from the Korean Ministries of Justice and
Foreign Affairs and Trade in discussions regarding the possibility of
officials from the United States Department of Justice and private
American legal counsel participating in the voluntary depositions in
Korea from Korean national victims and family members regarding the
crash of KAL Flight 801. On May 24, the U.S. Embassy transmitted
Diplomatic Note No. 225 to the Ministry of Foreign Affairs requesting
reconsideration of the Ministry\'s initial denial of the Republic of
Korea Government authorization to allow U.S. Department of Justice
Attorneys to take the depositions in Korea. A copy of the Diplomatic
Note is annexed at *Exhibit \"E\"*. On May 26, 1999, the Ministry of
Justice provided the U.S. Embassy in Seoul with a formal reply
explaining that under applicable Korean law, specifically the
International Civil Judicial Mutual Assistance Law, there is no legal
basis to permit attorneys from the United States to conduct voluntary
depositions directly of Korean citizens. A copy of this communication is
provided as *Exhibit \"F\".*

18\. Subsequent attempts by the U.S. Embassy to redress the issue with
Korean authorities proved unsuccessful. On June 1, 1999, the Ministry
responded to the Embassy\'s Diplomatic Note No. 225 forwarding opinions
from the Ministry of Justice and the Korean Supreme Court, Court
Administration Office. They suggested that the United States transmit
the request in the form of a letter rogatory to be executed by a Korean
court in a proceeding in which American counsel, both U.S. Government
officials and private American attorneys, would not be permitted to
participate. As an alternative, the Ministry suggests that the
depositions be conducted directly by the American consular officer at
the U.S. Embassy. A copy is provided as *Exhibit \"G\".* On June 14, the
Acting Deputy Chief of Mission of the U.S. Embassy met with the Deputy
Foreign Minister and the Director of the Ministry of Foreign Affairs and
Trade\'s Consular Division to further press the United States
Government\'s request. The Deputy Foreign Minister stated that he was
aware of the request and that he would again request that the issue be
revisited by the Ministry of Justice and by the Court Administration
Office of the Supreme Court.

19\. On October 26 the U.S. Embassy transmitted a letter rogatory to the
Ministry of Foreign Affairs and Trade under cover of Diplomatic Note No.
516, a copy of which is attached as *Exhibit \"H\"*. On December 21,
1999, the U.S. Embassy inquired regarding the status of the letter
rogatory. The Ministry of Foreign Affairs and Trade advised that the
request is still under review by the apparent equivalent of an
Administrative Court judge in the Korean Supreme Court and Ministry of
Justice.

20\. The U.S. Department of State would advise U.S. citizens, both U.S.
Government officials and private citizens, contemplating participation
in a deposition in Korea without the concurrence of the host country to
consider carefully the impact of such an action, including possible
arrest, detention or deportation. With respect to U.S. Government
officials contemplating such action, the Department must further advise
that the travel cannot be authorized by the Chief of Mission and
therefore cannot be undertaken, for the reasons explained above.

21\. The Department of State would be pleased to assist the U.S.
District Court in any further questions the Court may have regarding
judicial assistance in Korea.

I declare under penalty of perjury that the foregoing is true and
correct (28 USC 1746). Executed in Washington, D.C.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Edward A. Betancourt

January 10, 2000

Exhibits:

A.  Article 4 (c) - U.S. - Korea Consular Convention.

B.  Obtaining Evidence in Korea Flyer.

C.  1 FAM 013.2- Authority of Chiefs of Mission.

D.  7 FAM 941 - Judicial Assistance Travel of U.S. Government Officials.

E.  U.S. Embassy Seoul Diplomatic Note No. 225 dtd May 24, 1999.

F.  Ministry of Justice letter dtd May 26, 1999.

G.  Ministry of Foreign Affairs communication of June 1, 1999.

H.  U.S. Embassy Seoul Diplomatic Note No. 516 of October 26, 1999.