UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

\- - - - - - - - - - - - - - - - - -x

:

SHAMELA BEGUM,

> :

Plaintiff,

> : No. 99 Civ. 11834 (RMB)
>
> \- against -
>
> :

MOHAMMED SALEH and KHATUN SALEH,

> :
>
> Respondents.

\- - - - - - - - - - - - - - - - - -x

[STATEMENT OF INTEREST OF THE UNITED STATES]{.underline}

MARY JO WHITE

United States Attorney for the

Southern District of New York

100 Church Street, 19th Floor

New York, New York 10007

Tel.: (212) 637-2744

WENDY H. SCHWARTZ (WS-1862)

Assistant United States Attorney

JONATHAN B. SCHWARTZ

Deputy Legal Adviser

LINDA JACOBSEN

Assistant Legal Adviser

WYNNE TEEL

Attorney-Adviser

Office of Diplomatic Law and

Litigation

Office of the Legal Adviser

United States Department of State

Washington, D.C. 20520

\- Of Counsel -

[TABLE OF CONTENTS]{.underline}

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

BACKGROUND 2

> A. Factual Allegations 2
>
> B. This Action 3

C. The Status Of Mr. and Mrs. Saleh 3

ARGUMENT 6

I. Mr. and Mrs. Saleh Have Immunity From This Action 6

A. Applicable Treaties 6

B. The History and Interpretation of theUnited Nations Treaties Confirm
ThatDiplomatic Immunities Are Applicable Here 11

II\. Respecting Defendants\' Diplomatic ImmunitiesDoes Not Present A
Constitutional Issue 19

III\. Failure of the United States to Respect Diplomatic Immunities
Could Have SeriousConsequences in the International Community 22

CONCLUSION 26

[TABLE OF AUTHORITIES]{.underline}

[CASES]{.underline}

[Arcaya v. Paez]{.underline}, 145 F. Supp. 464

(S.D.N.Y. 1956), [aff'd]{.underline}, 244 F.2d 958

2d Cir. 1957) 5, 19

[Boos v. Barry]{.underline}, 485 U.S. 312 (1988) 23

[Fireman's Ins. Co. v. Onwualia]{.underline},

No. 94 Civ. 0095 (PKL), 1994 WL 706994

(S.D.N.Y. Dec. 13 1994) 19

[Kolovrat v. Oregon]{.underline}, 366 U.S. 187 (1961) 11

[LaFontant v. Aristide]{.underline}, 844 F. Supp. 128

(E.D.N.Y. 1994) 20

[Maximov v. United States]{.underline}, 299 F.2d 565

(2d Cir. 1962), [aff\'d]{.underline}, 373 U.S. 49 (1963) 11

[Reid v. Covert]{.underline}, 354 U.S. 1 (1957) 19

[767 Third Avenue Associates v. Permanent]{.underline}

> [Mission of the Republic of Zaire]{.underline},

988 F.2d 295 (2d Cir. 1993),

[cert.]{.underline} [denied]{.underline}, 510 U.S. 819 (1993) 9, 11, 19,

> 22, 23, 24

[Sullivan v. States of San Paulo]{.underline}, 122 F.2d 355

(2d Cir. 1890) 5

[Sumitomo Shoji Am., Inc. v. Avagliano]{.underline},

457 U.S. 176 (1982) 11

[Tabion v. Mufti]{.underline}, 73 F.3d 535 (4th Cir. 1996),

[aff\'g]{.underline}, 877 F. Supp. 285 (E.D. Va. 1995) 10

[Traore v. State]{.underline}, 431 A.2d 96, 98

(Ct. App. Md. 1981) 5

[United States ex rel. Casanova v. Fitzpatrick]{.underline},

214 F. Supp. 425 (S.D.N.Y. 1963) 5

[United States v. Coplon]{.underline}, 84 F. Supp. 472

(S.D.N.Y. 1949) 5

[United States v. Enger]{.underline}, 472 F. Supp. 490

(D.N.J. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . .5

U[nited States v. Palestine Liberation Organization]{.underline},

695 F. Supp. 1456 (S.D.N.Y. 1988) 6

[York River House v. Pakistan Mission]{.underline}

> [to the United Nations]{.underline}, No. 90 Civ. 2071 (PNL),

1991 WL 206286 (S.D.N.Y. Sept. 27, 1991) 19

[STATUTES AND TREATIES]{.underline}

28 U.S.C. § 517 1

22 U.S.C. §§ 288 [et]{.underline} [seq.]{.underline} 13

United Nations Charter, 59 Stat. 1031 (1945) passim

Agreement Between the United Nations

and the United States of America

Regarding the Headquarters of

the United Nations, June 26-Nov. 21, 1947,

61 Stat. 3416 passim

Convention on Privileges and Immunities of

the United Nations, [adopted]{.underline} Feb. 13, 1946,

> [United States accession]{.underline}, April 29, 1970,

21 U.S.T. 1418 passim

Vienna Convention on Diplomatic Relations,

> [done]{.underline} Apr. 18, 1961, 23 U.S.T. 3227,

[United States accession]{.underline}, April 29, 1970 passim

[LEGISLATIVE MATERIALS]{.underline}

H.R. Rep. No. 1093, 80th Cong.,

1st Sess. (1947) 12, 14

Sen. Rep. No. 559, 80th Cong.,

1st Sess. (1947) 8, 13, 14

S.J. Res. 144, P.L. 80-357,

61 Stat. 756 (1947) 6, 7, 12

H.R. Committee on Foreign Affairs,

> [Structure of the United Nations]{.underline}
>
> [and the Relations of the United]{.underline}
>
> [States to the United Nations]{.underline},

80th Cong., 2d Sess., 509 (1948) 13, 15, 16

Message from the United States Transmitting

a Copy of the Convention on Privileges and

Immunities of the United Nations,

91st Cong., 1st Sess. (1969) 8, 16

Executive Rep. No. 91-17, 91st Cong.,

2d Sess. (1970) 16, 21

[MISCELLANEOUS]{.underline}

1967 [International Law Commission Yearbook]{.underline}, Vol. II 15

1976 [United Nations Juridical Yearbook]{.underline} 17, 18

1983 [United Nations Juridical Yearbook]{.underline} 17

1986 [United Nations Juridical Yearbook]{.underline} 17, 21

Eileen Denza, [Diplomatic Law]{.underline} 2 (1976) 9, 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

\- - - - - - - - - - - - - - - - - -x

:

SHAMELA BEGUM,

> :

Plaintiff,

> : No. 99 Civ. 11834 (RMB)
>
> \- against -
>
> :

MOHAMMED SALEH and KHATUN SALEH,

:

> Respondents.

\- - - - - - - - - - - - - - - - - -x

[STATEMENT OF INTEREST OF THE UNITED STATES]{.underline}

[PRELIMINARY STATEMENT]{.underline}

The United States of America (the \"United States\") respectfully
submits this Statement of Interest pursuant to 28 U.S.C. § 517[^1] to
express its views on the privileges and immunities of Mohammed Saleh and
Khatoon Saleh under the Agreement Between the United Nations and the
United States of America Regarding the Headquarters of the United
Nations, June 26-Nov. 21, 1947, 61 Stat. 3416 (the \"UN Headquarters
Agreement\") and the Convention on Privileges and Immunities of the
United Nations, [adopted]{.underline} Feb. 13, 1946, [United States
accession]{.underline}, April 29, 1970, 21 U.S.T. 1418 (the \"General
Convention\"). Pursuant to these treaties, Mr. and Mrs. Saleh are
entitled to the same privileges and immunities in the United States as
the United States accords to diplomatic envoys. These immunities are
defined by the Vienna Convention on Diplomatic Relations,
[done]{.underline} Apr. 18, 1961, [United States accession]{.underline},
April 29, 1970, 23 U.S.T. 3227 (the \"Vienna Convention\"), and include
immunity from the civil jurisdiction of the courts in this country. Any
failure appropriately to apply such privileges and immunities would
contravene the United States\' established international legal
obligations and could have adverse consequences for the Government\'s
conduct of foreign relations.[^2]

[BACKGROUND]{.underline}

A. [Factual Allegations]{.underline}

The United States, taking no position on the merits of this action,
understands the factual allegations in this case to be as follows.
Defendant Mohammed Saleh is the Second Secretary of the Bahrain Mission
to the United Nations, and defendant Khatoon Saleh is his wife.
Complaint, dated December 7, 1999 (\"Complaint\"), ¶ 5. Plaintiff, a
native of Bangladesh, alleges that between November or December 1998 and
August 30, 1999, she worked as a domestic servant in defendants\' New
York City apartment. [Id.]{.underline} ¶¶ 1, 6, 11. Plaintiff contends
that she was subjected to abusive working conditions, Complaint ¶¶ 11,
13, and that her only compensation was a very small sum of money
forwarded to her husband in Bangladesh. [Id.]{.underline} ¶ 12.
Plaintiff further alleges that during her employment she was allowed to
leave the apartment on only two occasions, both times to go to the
market to assist Mrs. Saleh. [id.]{.underline} ¶ 14, and that on the
second occasion she left the apartment, she spoke to a Bengali-speaking
fruit and vegetable vendor, who contacted someone who then helped
plaintiff leave the home of Mr. and Mrs. Saleh. [Id.]{.underline} ¶¶
15-17.[^3]

B. [This Action]{.underline}

On or about December 7, 1999, plaintiff brought this civil action for
damages against Mr. and Mrs. Saleh. The complaint seeks damages for
defendants\' allegedly holding plaintiff in involuntary servitude
prohibited by the Thirteenth Amendment, failure to pay minimum wage
under federal and state laws, assault and battery, false imprisonment,
conversion, and trespass to chattels. [Id.]{.underline} ¶¶ 23-41. In
lieu of answering the complaint, defendants have filed a motion to quash
service of the summons and complaint and dismiss the complaint on the
grounds of diplomatic immunity.

C. [The Status Of Mr. and Mrs. Saleh]{.underline}

In cases where a claim of diplomatic immunity is raised, the United
States State Department practice is to provide a certification that
establishes the position held by the defendant and the level of immunity
to which the defendant is entitled. Accordingly, the State Department
has provided each defendant in this action with a formal certification
of his or her status and level of immunity. Declaration of William B.
Wood, dated March 31, 2000 (\"Wood Decl.\"), Exhs. A and B.

With respect to Mohammed Saleh, the State Department has certified that
\"Mr. Mohammed Saleh Mohammed Saleh was notified by the Permanent
Mission of the State of Bahrain to the United Nations in New York as a
Third Secretary on August 14, 1997. He was promoted to Second Secretary
on September 7, 1999. He continues to serve in this capacity.\" Wood
Decl., Exh. A, at 1. The State Department has further certified that,
pursuant to Article V, sec. 15 of the Headquarters Agreement, and
Article IV, sec. 11 of the General Convention, Mr. Saleh is entitled to
the same privileges and immunities in the United States as the United
States accords to diplomatic envoys who are accredited to it, as defined
in the Vienna Convention. [Id.]{.underline} at 1-2. The State Department
has further certified that, under Article 31 of the Vienna Convention,
Mr. Saleh\'s privileges and immunities include immunity from the civil
jurisdiction of this country. [Id.]{.underline} at 2.

With respect to Khatoon Saleh, the State Department has certified that
\"Mrs. Khatoon Abdulla Ahmed Salman is the spouse of Mr. Mohammed Saleh
Mohammed Saleh, Second Secretary of the Permanent Mission of the State
of Bahrain to the United Nations in New York.\" Wood Decl., Exh. B,
at 1. The State Department has further certified that, pursuant to
Article V, sec. 15 of the Headquarters Agreement, and Article IV, sec.
11 of the General Convention, Mrs. Saleh enjoys the privileges and
immunity from the jurisdiction of the United States extended to members
of the family forming part of the household of a diplomatic agent, as
defined in the Vienna Convention. [Id.]{.underline} at 1. The State
Department has further certified that, under Article 31 and Article 37
of the Vienna Convention, Mrs. Saleh\'s privileges and immunities
include immunity from the civil jurisdiction of this country.
[Id.]{.underline} at 2.

\"The courts are bound by a determination of the Department of State
that an alien claiming diplomatic status is entitled to that status,
since this is construed as a nonreviewable political decision.\" [United
States v. Enger]{.underline}, 472 F. Supp. 490, 506 n.19 (D.N.J. 1978)
(citing [In re Baiz]{.underline}, 135 U.S. 403 (1890); [Sullivan v.
State of San Paulo]{.underline}, 122 F.2d 355, 357-58 (2d Cir. 1941);
[United States v. Coplon]{.underline}, 84 F. Supp. 472, 475 (S.D.N.Y.
1949)). [See]{.underline} [also]{.underline} [Arcaya v.
Paez]{.underline}, 145 F. Supp. 464, 467 (S.D.N.Y. 1956)(\"\[t\]he
questions of the diplomatic status enjoyed by a given defendant and the
immunity to be accorded him are . . . questions where a determination of
the Department of State is binding upon the court\"),
[aff'd]{.underline}, 244 F.2d 958 (2d Cir. 1957); [Traore v.
State]{.underline}, 431 A.2d 96, 98 (Ct. App. Md. 1981) (\"It is settled
that the State Department\'s determinations concerning an individual\'s
diplomatic status at a particular time should ordinarily be accepted by
the courts\" (citations omitted)). [Compare]{.underline} [United States
ex rel. Casanova v. Fitzpatrick]{.underline}, 214 F. Supp. 425, 434
(S.D.N.Y. 1963) (where State Department certified that the United States
had not agreed to grant diplomatic immunity under the Headquarters
Agreement, certification was \"evidential but not conclusive\"). In this
action, where the State Department has certified the United States\'
agreement that Mr. Saleh is entitled to the same immunity \"as the
United States accords to diplomatic envoys who are accredited to it,\"
and that such immunity includes immunity for Mrs. Saleh as a household
family member, these certifications are conclusive as to such status.

[ARGUMENT]{.underline}

I. [Mr. and Mrs. Saleh Have Immunity From This Action]{.underline}

> A. [Applicable Treaties]{.underline}

The United States has entered into a number of treaties that establish
its obligation to accord diplomatic immunity to Mr. Saleh, as Bahrain\'s
resident representative to the United Nations, and to his wife, Mrs.
Saleh. These treaties are the United Nations Charter, 59 Stat. 1031
(1945) (the \"UN Charter\"), the Headquarters Agreement, the Convention
on the Privileges and Immunities of the United Nations, and the Vienna
Convention. These treaties have the same force of law as statutes, for
\"\[u\]nder our constitutional system, statutes and treaties are both
the supreme law of the land, and the Constitution sets forth no order of
precedence to differentiate between them.\" [United States v. Palestine
Liberation Organization]{.underline}, 695 F. Supp. 1456, 1464 (S.D.N.Y.
1988) (citing U.S. Const., art. VI, cl.2).

The UN Charter was ratified by the President of the United States, with
the advice and consent of the Senate, on August 8, 1945, and came into
force on October 24, 1945. [See]{.underline} UN Charter, Intr.; S.J.
Res. 144, P.L. 80-357, 61 Stat. 756 (1947). Article 105(2) of the UN
Charter provides that \"Representatives of the Members of the United
Nations . . . shall enjoy such privileges and immunities, as are
necessary for the independent exercise of their functions in connection
with the Organizations.\" [Id.]{.underline} The UN Charter thus provides
the framework for the privileges and immunities to be provided to, among
others, representatives of its member states. As demonstrated below, the
specific parameters of those privileges and immunities as to various
classes of individuals are set forth in the Headquarters Agreement and
the General Convention.

Several months after the UN Charter was ratified, the United States
invited the United Nations to establish its permanent seat in the United
States, and, on December 14, 1946, the General Assembly of the United
Nations resolved to locate its permanent headquarters in New York City.
As a consequence, in 1947, the United States and the United Nations
negotiated and signed the Headquarters Agreement. S.J. Res. 144, 61
Stat. 756. This agreement establishes the seat of the United Nations in
New York City, and regulates the relationship between the United States
and the United Nations.

As host country to the United Nations, the United States assumed
specific obligations concerning the Members of the United Nations. These
obligations, which are set forth in the Headquarters Agreement, include
the provision that:

> \[Representatives of Member States\] shall, whether residing inside or
> outside the headquarters district, be entitled in the territory of the
> United States to the same privileges and immunities, subject to
> corresponding conditions and obligations, as \[the United States\]
> accords to diplomatic envoys accredited to it.

Art. V, sec. 15.

The General Convention[^4] extends and elaborates the protections
accorded to representatives of members of the United Nations by, among
other things, enlarging the classes of representatives entitled to
diplomatic privileges and immunities and specifying certain of those
immunities. Thus, Article IV, section 11(b) of the General Convention
provides:

> Representatives of Members to the principal and subsidiary organs of
> the United Nations . . . shall, while exercising their functions and
> during their journey to and from the place of meeting, enjoy the
> following privileges and immunities:
>
> \(a\) immunity from personal arrest or detention and from seizure of
> their personal baggage
>
> . . .;
>
> \(b\) inviolability for all papers and documents;
>
> \* \* \*
>
> \(g\) such other privileges, immunities and facilities not
> inconsistent with the foregoing as diplomatic envoys enjoy . . . .

[Id.]{.underline}

Thus, under both the Headquarters Agreement and the General Convention,
representatives to the United Nations are entitled to those privileges
and immunities accorded by the United States to diplomats accredited to
the United States.

The privileges and immunities to which diplomats accredited to the
United States were entitled were, at the time the above treaties were
negotiated, governed by customary international law. Customary
international law had for centuries recognized that the absolute
independence and security of diplomatic envoys was essential to
fulfillment of their critical role in international relations, and that
full diplomatic immunity was a necessary guarantor of that independence.
[See]{.underline} [generally]{.underline} [767 Third Avenue Associates
v. Permanent Mission of the Republic of Zaire]{.underline}, 988 F.2d
295, 299-300 (2d Cir.), [cert.]{.underline} [denied]{.underline}, 510
U.S. 819 (1993). The customary international law on diplomatic
privileges and immunities was codified by the Vienna Convention, which
was opened for signature in 1961, and which entered into force for the
United States in December 1972.[^5] [Id.]{.underline} at 300. Article 31
of the Vienna Convention provides, in relevant part:

> 1\. A diplomatic agent shall enjoy immunity from the criminal
> jurisdiction of the receiving State. He shall also enjoy immunity from
> its civil and administrative jurisdiction \[with three exceptions not
> relevant here\] . . . .[^6]
>
> 2\. A diplomatic agent is not obliged to give evidence as a witness.

[Id.]{.underline} In addition, Article 37 of the Vienna Convention
provides, in relevant part:

> The members of the family of a diplomatic agent forming part of his
> household shall, if they are not nationals of the receiving State,
> enjoy the privileges and immunities specified in Article 29 to 36.

[Id.]{.underline} The Vienna Convention thus provides diplomats and
their household family members with \"absolute immunity from criminal
prosecution and protection from most civil and administrative actions
brought in the \'receiving State,\' [i.e.]{.underline}, the state where
they are stationed.\" [Tabion]{.underline}, 73 F.3d at 537. In the case
of representatives to the United Nations, the \"receiving state\" for
these purposes is the United States. Headquarters

Agreement, Art. V, sec. 15.

> B. The History and Interpretation of the
>
> United Nations Treaties Confirm That
>
> [Diplomatic Immunities Are Applicable Here]{.underline}

\"Treaties are contracts between sovereigns, and as such, should be
construed to give effect to the intent of the signatories.\"
[Tabion]{.underline}, 73 F.2d at 537 (citations omitted). As the Second
Circuit has explained, "\[t\]he basic aim of treaty interpretation is to
ascertain the intent of the parties who have entered into agreement, in
order to construe the document in a manner consistent with that
intent.\" [Maximov v. United States]{.underline}, 299 F.2d 565, 568 (2d
Cir. 1962) (citations omitted), [aff\'d]{.underline}, 373 U.S. 49
(1963).

Where the parties to a treaty have spoken on its meaning, the court\'s
role in interpreting such treaty is particularly circumscribed.
\"Although not conclusive, the meaning attributed to treaty provisions
by the Government agencies charged with their negotiation and
enforcement is entitled to great weight.\" [Kolovrat v.
Oregon]{.underline}, 366 U.S. 187, 194 (1961). Moreover, \"\'\[w\]hen
the parties to a treaty both agree to the meaning of a treaty provision,
and that interpretation follows from the clear treaty language\[, the
court\] must, absent extraordinarily strong contradictory evidence,
defer to that interpretation.\'\" [767 Third Avenue]{.underline}, 988
F.2d at 301-02 (quoting [Sumitomo Shoji Am., Inc. v.
Avagliano]{.underline}, 457 U.S. 176, 184-5 (1982)).

In this action, the treaties at issue are the UN Charter, the
Headquarters Agreement, and the General Convention. These international
agreements contain the fundamental provisions that have been construed
and implemented for more than fifty years to realize the broad
objectives set forth in the United Nations Charter. As demonstrated
below, the United States and the international community have
consistently interpreted and applied these provisions in the same way,
and have agreed that these treaties provide the same level of immunity
to representatives to the United Nations as the United States provides
to diplomats accredited to the United States, as codified in the Vienna
Convention.

As an initial matter, as explained in the House of Representatives
Report that accompanied S.J. Res. 144, the Joint Resolution authorizing
the President to bring into effect the Headquarters Agreement, the
operation of the United Nations headquarters is inextricably linked with
the question of immunity. H.R. Rep. No. 1093, 80th Cong., 1st Sess., at
8 (1947) (\"1947 House Report\"). Under Article 105 of the UN Charter,
[inter]{.underline} [alia]{.underline}, representatives to the United
Nations shall enjoy in all nations \"such privileges and immunities as
are necessary for the independent exercise of their functions in
connections with the Organization.\" [Id.]{.underline} (quoting UN
Charter, art. 105). \"The host nation, however, is under special
responsibility to assure that the arrangements made suffice for the
efficient functioning of the United Nations. The host nation also is in
a special relationship in that it is more deeply involved domestically
in the nature of the arrangements and the manner of their working.\"
[Id.]{.underline} The Headquarters Agreement sets forth the agreements
on these matters between the United Nations and the United States as
host country. [Id.]{.underline}[^7]

One of the special arrangements between the United States and the United
Nations in the Headquarters Agreement is that certain classes of
representatives of member states of the United Nations, namely, resident
representatives, will be entitled in the United States \"\'to the same
privileges and immunities\' as are accorded to diplomatic envoys
accredited to the United States, subject, however, to \'corresponding
conditions and obligations.\' Thus, the House Report notes, a limited
group of the more important representatives to the United Nations [will
receive the same diplomatic status as their colleagues in Washington who
are accredited to the United States Government]{.underline}.\"
[Id.]{.underline} at 11 (emphasis added). [See]{.underline}
[also]{.underline} 1947 Senate Report, at 4 (same). As the House Report
makes clear, while the UN Charter did not specify a requirement of
diplomatic status for resident representatives of its members, in the
Headquarters Agreement, \"\[t\]he United States and the United Nations
have come to an agreement that diplomatic status is the necessary
formula here. . . . The premise of the agreement is that the sum total
of the privileges necessarily approximates that of diplomatic status,
and the committee accept this view.\" 1947 House Report, at 11-12.

The provision ultimately codified as Article V, section 15 in the
Headquarters Agreement was thus always understood to provide diplomatic
immunity to resident representatives of members of the United Nations,
as opposed to the more limited functional immunity set forth in the
IOIA. In this context, the phrase \"subject to corresponding conditions
and obligations\" found in Article V, section 15 only makes sense if it
refers to corresponding conditions and obligations of other diplomats
accredited to the United States. This understanding is confirmed in the
1948 letter from the Legal Adviser of the Department of State to a
Congressional Subcommittee:

> The background in the negotiation of section 15 of the headquarters
> agreement indicates that the phrase \"subject to corresponding
> conditions and obligations\" was inserted by way of compromise to meet
> a desire on the part of the United States that persons covered by
> section 15 were not to receive privileges and immunities broader than
> those accorded to diplomatic envoys accredited to the President of the
> United States, and that like diplomatic envoys, such persons might be
> found personne non gratae and made subject to recall.

1948 Legal Adviser Letter, at 511. This understanding of the phrase
\"subject to corresponding conditions and obligations\" was quoted with
approval by the International Law Commission, a body of international
legal experts commissioned by the United Nations, in a discussion of the
practice of the United Nations concerning, among other things, the
status, privileges, and immunities of representatives of its members.
1967 [International Law Commission Yearbook]{.underline}, Vol. II, at
154, 177-78.

The history and interpretation of the General Convention further
supports the understanding that, since entry into force of the
Headquarters Agreement, resident member state representatives to the
United Nations have always been entitled to diplomatic immunities,
subject only to corresponding conditions and obligations attendant on
other diplomats. As discussed above (at 8), Article IV, section 11 of
the General Convention extends diplomatic privileges and immunities to
non-resident representatives to the United Nations. The legislative
history accompanying this extension of privileges and immunities
confirms that such immunities were already in force with respect to
resident representatives, such as Mr. Saleh, under Article V, section 15
of the Headquarters Agreement, and approves their extension to
additional classes of representatives.

For instance, the Executive Report submitted by the Senate Committee on
Foreign Relations in support of ratifying the General Convention,
describes the following situation when the Headquarters Agreement, but
not the General Convention, was in effect in the United States:

> With regard to representatives of members, currently only resident
> representatives of permanent missions to the United Nations have full
> diplomatic immunities. Nonresident representatives enjoy only
> functional immunities; that is, immunities with respect to their
> official acts. Under the \[General Convention\], these nonresident
> representatives will also be entitled to full diplomatic immunities.

Executive Rep. No. 91-17, 91st Cong., 2d Sess., at 3 (1970) (\"1970
Executive Report\"). The Department of State took the same view.
[See]{.underline} Letter of Submittal from Secretary of State William P.
Rogers to the President, dated Nov. 6, 1969, at 1,
[reprinted]{.underline} [in]{.underline} Message from the United States
Transmitting a Copy of the Convention on Privileges and Immunities of
the United Nations, 91st Cong., 1st Sess. (1969) (under existing law,
resident diplomatic officials attached to permanent missions to the
United Nations are entitled to the privileges and immunities enjoyed by
members of diplomatic missions in Washington; the General Convention
would extend diplomatic privileges to non-resident representatives).[^8]

Finally, like the United States and the International Law Commission,
the United Nations views the treaties at issue here as conferring
diplomatic immunities upon representatives of its members consistent
with those set forth in the Vienna Convention. This is explicitly stated
with respect to Article V, section 15 of the Headquarters Agreement in
the 1983 [United Nations Juridical Yearbook]{.underline}:

> From the very beginning the United Nations took the position, in light
> of Article 105 of the Charter, that those representatives should enjoy
> the same privileges and immunities as are accorded to diplomatic
> envoys accredited to the Government of the United States.
>
> \* \* \* \*
>
> It follows from Article V, section 15, of the Headquarters Agreement
> that the relevant provisions of general international law on the
> question of privileges and immunities also apply to the resident
> representatives to the United Nations and their staffs. International
> law concerning this question is codified in the 1961 Vienna Convention
> on Diplomatic Relations.

[Id.]{.underline} at 222. [See]{.underline} [also]{.underline} 1986
[United Nations Juridical Yearbook]{.underline}, at 327 (reprint of
letter from the United Nations to the deputy permanent representative of
a member state confirming that the Vienna Convention is applicable to
permanent missions to the United Nations by virtue of Art. V, sec. 15 of
the Headquarters Agreement)

In addition, the United Nations attributes the same interpretation to
Article IV, section 11 of the General Convention attributed by the
United States, namely, that this also provides diplomatic immunity,
extended to a larger class of people than those covered by the
Headquarters Agreement. [See]{.underline} 1976 [United Nations Juridical
Yearbook]{.underline}, at 224-29. Indeed, the United Nations has
explicitly rejected the notion that the immunity language of Article IV,
section 11 is limited to the official functions of representatives to
the United Nations, notwithstanding the use of the phrase \"while
exercising their functions and during their journey to and from the
place of meeting . . .\":

> In the view of the Secretary-General, to interpret those words so as
> to limit them to times when the person concerned is actually doing
> something as part of his functions as a representative, for example
> speaking in a United Nations meeting, leads to absurd and meaningless
> results, making such an interpretation wholly untenable. The only
> reasonable interpretation is the \"broad\" one, namely to regard the
> words concerned as describing the whole period during which the person
> involved discharges his responsibilities.

[Id.]{.underline} at 228. The [Yearbook]{.underline} further explains:
\"In other words, \'while exercising\' means during the entire period of
presence in the State . . . .\" [Id.]{.underline}

In sum, because the United States and the United Nations agree to an
accepted interpretation of the applicable conventions, and because there
is no evidence of a contrary interpretation advanced by any of the
United Nations members, or the international community, this Court
should defer to the interpretation of the treaty parties. Thus, as Mr.
Saleh has been certified by the United States to be entitled to the
privileges and immunities specified by Article V, section 15 of the
Headquarters Agreement, and Article IV, section 11 of the General
Convention, he is entitled to the same privileges and immunities
accorded to diplomatic envoys accredited to the United States, subject
only to the same corresponding conditions and obligations that those
diplomats are subject to, which are now found in the Vienna Convention.
This includes immunity for Mr. Saleh and his household family members
from the civil jurisdiction of this Court under Articles 31 and 37 of
the Vienna Convention.

In accordance with the above, courts in this district have uniformly
declined to proceed with actions against representatives to the United
Nations entitled to diplomatic immunity, particularly when the
Department of State has certified that immunity should be accorded.
[See]{.underline} [Fireman\'s Ins. Co. v. Onwualia]{.underline}, No. 94
Civ. 0095 (PKL), 1994 WL 706994, \*3 (S.D.N.Y. Dec. 19, 1994); [York
River House v. Pakistan Mission to the United Nations]{.underline}, No.
90 Civ. 2071 (PNL), 1991 WL 206286, \*1 (S.D.N.Y. Sept. 27, 1991);
[Arcaya]{.underline}, 145 F. Supp. at 468, 472-473. [See]{.underline}
[also]{.underline} [767 Third Avenue]{.underline}, 988 F.2d at 297-98;
302-03 (same provisions of United Nations\' immunity in the UN Charter,
Headquarters Agreement and General Convention that address immunity of
representatives require the United States to accord United Nations
mission with inviolability under the Vienna Convention). The same result
should occur here.

II\. Respecting Defendants\' Diplomatic Immunities

[Does Not Present A Constitutional Issue]{.underline}

According the appropriate level of immunity to Mr. and Mrs. Saleh does
not present a constitutional issue. There is no doubt that international
agreements are subject to constitutional limitations. [Reid v.
Covert]{.underline}, 354 U.S. 1, 17-18;40-41 (1957). However, the
existence of a constitutional right does not always carry with it a
guaranteed entitlement to a judicial remedy. [See]{.underline}
[LaFontant v. Aristide]{.underline}, 844 F. Supp. 128 (E.D.N.Y. 1994)
(dismissing on grounds of head-of-state immunity an action alleging
constitutional, statutory, and common law civil rights claims arising
from alleged murder.) Moreover, the treaties that are at issue here do
not conflict with the Constitution. Nothing in the UN Charter, the
Headquarters Agreement, the General Convention, or the Vienna Convention
authorizes involuntary servitude, or any other practice forbidden by the
Constitution. To the contrary, the Vienna Convention provides in no
uncertain terms that despite their immunity, diplomats are under an
obligation to follow the laws of the receiving State.
[Tabion]{.underline}, 877 F. Supp. at 293 (citing Vienna Convention,
Art. 41).

While a diplomat\'s obligations to respect the laws of a host country
cannot be judicially enforced, the United States takes very seriously
allegations of abuses of diplomatic privilege, and has both formal and
informal means of obtaining compliance through the diplomatic process.
Wood Decl., ¶ 7. As a formal matter, in certain circumstances, not
present here, the State Department may request that the sending state
waive the immunity of the diplomat.[^9] The General Convention makes
clear that \"\[p\]rivileges and immunities are accorded to the
representatives of Members not for the personal benefit of the
individuals themselves, but in order to safeguard the independent
exercise of their functions in connection with the United Nations.
Consequently a Member not only has the right but is under a duty to
waive the immunity of its representative in any case where in the
opinion of the Member the immunity would impede the course of justice .
. . .\" General Convention, Art. IV, sec. 14. If a waiver is not granted
by the sending state, the United States also has the option \-- in
consultation with the United Nations, as the United Nations is
technically the \"receiving\" entity, [see]{.underline} 1986 [United
Nations Juridical Yearbook]{.underline}, at 320-21 \-- to ask that such
diplomat be removed from the country. [See]{.underline} Headquarters
Agreement, Article IV, sec. 13 (in case of abuse of privileges and
immunities in activities outside a representative\'s official capacity,
the United States retains the ability to exercise customary removal
procedure applicable to diplomatic envoys accredited to United States);
General Convention, United States Reservation No. 2 (same); Vienna
Convention, art. 9(1) (procedure for declaring diplomat persona non
grata). [See]{.underline} [also]{.underline} 1970 Executive Report, at
10 (testimony of Ambassador Charles W. Yost, U.S. Permanent
Representative to the United Nations regarding the United States\' right
to expel United Nations representatives); Wood Decl., ¶ 12. These are
examples of the \"corresponding conditions and obligations\" attendant
upon the privileges and immunities of representatives to the United
Nations and diplomats accredited to the United States.

Moreover, short of formal measures, which are not always appropriate,
the State Department can examine a complaint and, if warranted, mediate
that dispute through the mission to the United Nations. Wood Decl., ¶ 8.
Indeed, in many instances, bringing the matter to the mission\'s
attention, and focusing on it as a diplomatic matter, may ultimately
induce voluntary compliance. Wood Decl., ¶ 9. [See]{.underline}
[also]{.underline} [767 Third Avenue]{.underline}, 988 F.2d at 303
(noting that diplomatic efforts and pressure were extraordinarily
successful at getting Zaire to pay back rent owed by its mission).

III\. Failure of the United States to Respect

Diplomatic Immunities Could Have Serious

[Consequences in the International Community]{.underline}

As this lawsuit illustrates, diplomatic immunities can prevent persons
allegedly wronged by those entitled to such immunities from obtaining
court review of their allegations. The United States takes seriously
allegations of abuse of diplomatic privileges, and does not intend to
downplay the potential negative consequences to individuals that can
result from the requirement that the United States uphold its
international obligations in this regard. Indeed, as discussed above (at
21-22), the State Department\'s diplomatic powers provide a means to
attempt to mitigate such effects where appropriate. However, even in the
face of potential adverse effects, the diplomatic immunities of United
Nations representatives must be respected because they are vital to the
conduct of peaceful international relations. Respecting diplomatic
obligations is a fundamental component of harmony and comity in the
international community. Wood Decl., ¶ 13. The importance of standing
behind these universal norms of international law \"is even more true
today given the global nature of the economy and the extent to which
actions in other parts of the world affect our own national security.\"
[Boos v. Barry]{.underline}, 485 U.S. 312, 323 (1988). The conduct of
the United States with respect to the United Nations and representatives
of its members in this country is a particularly visible portion of the
international relations of the United States. Wood Decl., ¶ 14. The
United Nations observes the degree and manner of the United States\'
compliance with its diplomatic obligations, and a failure by the United
States to abide by its international responsibilities can damage the
relationship between the United States and the United Nations. Wood
Decl., ¶ 15.

It should also be noted that, as a leading scholar on diplomatic law has
explained, \"the real sanction of diplomatic law is reciprocity. Every
State is both a sending and a receiving State. Its own representatives
abroad are hostages and even in minor matters their treatment will
depend on what the sending State itself accords.\" Eileen Denza,
[Diplomatic Law]{.underline} 2 (1976). This is equally true for
representatives of other countries accredited to this country, and for
representatives of other countries that are present here because they
are accredited to the United Nations. [See]{.underline} [767 Third
Avenue]{.underline}, 988 F.2d at 296 (applying diplomatic protections
under the Vienna Convention to Permanent United Nations Mission of the
Republic of Zaire). In this context, the reason to respect diplomatic
immunity 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.\" [Id.]{.underline}

These concerns are central to this case. If the United States is
prevented from carrying out its international obligations to protect the
privileges and immunities of representatives to the United Nations,
adverse consequences may well occur. Wood Decl., at ¶ 16. At a minimum,
the United States may hear objections for failing to honor its
obligations not only from the Bahrain Mission, but also from other
United Nations member countries whose representatives derive diplomatic
immunity from the same sources relied upon by Mr. and Mrs. Saleh in this
action, and from the United Nations itself. [Id.]{.underline} Indeed, a
ruling by this Court limiting the diplomatic immunities of
representatives to the United Nations in this country could, if applied
generally, lead to erosion of the necessary and respected protections
accorded by diplomatic immunities. Wood Decl., ¶ 17. As noted by the
Second Circuit in [767 Third Avenue]{.underline}, \"Recent history is
unfortunately replete with examples demonstrating how fragile is the
security for American diplomats and personnel in foreign countries;
their safety is a matter of real and continuing concern.\" 988 F.2d at
301.

In sum, the text of the treaties, the treaty parties\' long-standing
interpretation and practice under them, and basic precepts of
international law all provide for the provision of diplomatic immunity
to representatives to the United Nations and their resident family
members. Accordingly, Mr. and Mrs. Saleh are immune from this Court\'s
civil jurisdiction, and this case should be dismissed.

[CONCLUSION]{.underline}

For the foregoing reasons, the United States respectfully submits that
Mr. and Mrs. Saleh are entitled to immunity from the civil jurisdiction
of this Court and this action should therefore be dismissed.

Dated: New York, New York

March \_\_, 2000

MARY JO WHITE

United States Attorney for the

Southern District of New York

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

WENDY H. SCHWARTZ (WS-1862)

Assistant United States Attorney

100 Church Street, 19th Floor

New York, New York 10007

Tel.: (212) 637-2744

Attorney for the United States

of America

Of counsel:

JONATHAN B. SCHWARTZ

Deputy Legal Adviser

LINDA JACOBSEN

Assistant Legal Adviser

WYNNE TEEL

Attorney-Adviser

Office of Diplomatic Law and Litigation

Office of the Legal Adviser

United States Department of State

Washington, D.C. 20520

Attorneys for the United States

Department of State

[^1]: Pursuant to 28 U.S.C. § 517, the United States may appear in any
    court in the United States "to attend to the interests of the United
    States in a suit pending in a court of the United States, or in a
    court of a State, or to attend to any other interest of the United
    States."

[^2]: For the convenience of the Court, the United States submits with
    this brief a Compilation of Authorities, which contains documents
    that may not be readily available to the Court.

[^3]: On August 30, 1999, plaintiff filed a complaint with the New York
    City Police Department. Complaint ¶ 20. The United States is not
    aware of any request by local authorities to bring a criminal
    complaint.

[^4]: The General Convention was approved by the United Nations Assembly
    in February 1946, and was initially submitted to the Congress for
    approval in 1947 along with the Headquarters Agreement.
    [See]{.underline} Sen. Rep. No. 559, 80th Cong., 1st Sess., at 3
    (1947) (\"1947 Senate Report\"), at 1; Letter of Transmittal from
    Richard Nixon to the United States Senate, dated Dec. 19, 1969
    (\"1969 Transmittal Letter\"), at 1, [reprinted in]{.underline}
    Message from the United States Transmitting a Copy of the Convention
    on Privileges and Immunities of the United Nations, 91st Cong., 1st
    Sess. (1969). However, the House of Representatives took no action
    on the General Convention at that time. After resubmission to the
    Senate in 1969, [see]{.underline} [id.]{.underline} the United
    States accepted the General Convention on April 29, 1970, with two
    reservations conforming certain aspects of the immunities granted by
    the General Convention to the Headquarters Agreement. General
    Convention, U.S. Reserv.

[^5]: While the United States had not yet ratified the Vienna Convention
    in 1970, the time the General Convention was adopted, the United
    States was well aware of the Vienna Convention provisions regarding
    diplomatic immunities, which were understood to represent accepted
    practice under customary international law. Eileen Denza,
    [Diplomatic Law]{.underline} 1-3 (1976).

[^6]: The exceptions to Article 31 immunity are:

    > \(a\) a real action relating to private immovable property
    > situated in the territory of the receiving State, unless he holds
    > it on behalf of the sending State for the purposes of the mission;
    >
    > \(b\) an action relating to succession in which the diplomatic
    > agent is involved as executor, administrator, heir or legatee as a
    > private person and not on behalf of the sending State;
    >
    > \(c\) an action relating to any professional or commercial
    > activity exercised by the diplomatic agent in the receiving State
    > outside his official functions.

    Art. 31, sec. 1. None of these exceptions are relevant to this
    action. [Tabion v. Mufti]{.underline}, 73 F.3d 535 (4th Cir. 1996),
    [aff\'g]{.underline}, 877 F. Supp. 285 (E.D. Va. 1995).

[^7]: Before the United States and the United Nations worked out the
    Headquarters Agreement, the level of privileges and immunities
    accorded to United Nations representatives and personnel was
    governed by the International Organizations Immunities Act, 22
    U.S.C. §§ 288 [et]{.underline} [seq.]{.underline} (\"IOIA\"), which
    provides only functional immunity for representatives of
    international organizations. The IOIA was passed in December 1945
    for the general purpose of defining the privileges and immunities of
    international organizations in the United States, several of which
    were already in operation at that time. 1947 Senate Report, at 3.
    While it was hoped that the IOIA would cover the requirements of the
    United Nations, [id.]{.underline}, the functional immunity provided
    thereunder was apparently not sufficient to meet the needs of the
    United Nations. These needs are addressed by the Headquarters
    Agreement and the General Convention, both of which must be viewed
    as amending any inconsistent provisions in the IOIA with respect to
    the United Nations. [Id.]{.underline} [See]{.underline}
    [also]{.underline} Letter from Ernest A. Gross, Legal Adviser,
    United States Department of State to Lawrence H. Smith, Chairman,
    Subcommittee No. 6 on International Organizations and International
    Law of the Committee on Foreign Affairs, April 28, 1948,
    [reprinted]{.underline} [in]{.underline} Committee on Foreign
    Affairs, [Structure of the United Nations and the Relations of the
    United States to the United Nations]{.underline}, 80th Cong., 2d
    Sess., 509 (1948) (\"1948 Legal Adviser Letter\") (IOIA was enacted
    by United States on own initiative, and it was to be anticipated
    that, after gaining experience with United Nations\' issues, the
    final arrangements for United Nations immunities might differ from
    those in the IOIA).

[^8]: As the United States has ratified the General Convention, resident
    representatives such as Mr. Saleh, and his household family members,
    are also entitled to the diplomatic privileges and immunities
    provided by Article IV, section 11. These privileges and immunities
    are largely duplicative of the privileges and immunities accorded to
    permanent representatives under the Headquarters Agreement. While
    the applicable privileges and immunities in the General Convention
    are set forth with more detail than those in the Headquarters
    Agreement, the legislative history discussed herein confirms that
    they are in essence the same. However, to the extent any portion of
    the General Convention could be regarded as conflicting with, or
    potentially narrowing, any provision of the Headquarters Agreement,
    the applicable provision of the Headquarters Agreement would
    control. Headquarters Agreement, Art. IX, sec. 26; 1948 Legal
    Adviser Letter, at 511.

[^9]: For example, where law enforcement authorities have investigated
    allegations and a prosecutor has notified the Department of State
    that a criminal case would be prosecuted but for the immunity,
    Department of State regulations call for the Department to request
    that the sending state waive the immunity of the diplomat. Wood
    Decl., ¶ 11. As noted above (at 3, n.3), the United States is not
    aware of any request by a criminal prosecutor with respect to this
    case, and has not requested a waiver at this time. Wood Decl., ¶ 11
    n.1.