The case of the day is Harrison v. Sudan (2d Cir. 2016). I wrote about the case about a year ago. Today’s decision is on a petition for rehearing brought by Sudan, joined by the United States as amicus curiae.

Here was my statement of the facts from the prior post:

The case arose out of the terrorist attack on the USS Cole in Yemen 2000. Several sailors and their families sued the Republic of Sudan in the US District Court for the District of Columbia, alleging that Sudan had provided material report to al Qaeda, which had taken responsibility for the attack. The action ended with a $314 million default judgment against Sudan. The plaintiffs registered the judgment in the Southern District of New York and sought to enforce it. The court in New York entered several turnover orders, and Sudan appealed, arguing, among other things, that the judgment was void because it had not been validly served with process.

The plaintiffs had attempted service, correctly, under 28 U.S.C. § 1608(a)(3), which provides for service:

if service cannot be made under paragraphs (1) or (2) [i.e., by a special arrangement between the parties or by an applicable convention such as the Hague Service Convention], by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned …

The plaintiffs asked the clerk to mail the documents to Sudan’s Foreign Minister at Sudan’s embassy in the United States rather than at the offices of the Foreign Ministry in Khartoum. The clerk did as requested and received a return receipt. The question in the case was whether the FSIA required the documents to be addressed to the Foreign Minister at the offices of the Foreign Ministry in the foreign state, or whether it’s enough to address the documents to the foreign minister at some other address, for example at the foreign state’s embassy in the United States.

In its original decision the panel affirmed, holding that the service complied with the FISA because it was sent to the Minister of Foreign Affairs by name, albeit via the embassy. Nothing in the statute, the court held, required service at any particular address.

In today’s decision, the court denied the request for a rehearing, reaffirming its earlier holding. I want to focus on one point that played a minor role in the first decision and a bigger role in this latest decision: the United States argued forcefully that the court’s holding put the United States out of compliance with the Vienna Convention and undermines the United States’s longstanding policy of refusing service of process at US embassies and consulates worldwide. Article 22 of the Vienna Convention provides that the “premises of the mission shall be inviolable” and that “the agents of the receiving State may not enter them, except with the consent of the head of the mission.” The court’s basic points were, first, that since service was not made on the embassy or any of its personnel but rather on the Minister of Foreign Affairs via the embassy, the inviolability of the embassy premises was not compromised, and that in any event Sudan had consented by failing to refuse to accept the papers. (It’s on this basis that the court noted that its decision would not undermine the United State’s policy of refusing to accept service of process at embassies and consulates).

Assuming for the moment that this is right, I am troubled by the dicta that followed:

An important reason for the inviolability of the embassy premises is that the embassy is, to some degree, an extension of the sovereignty of the sending state. To send officers into the embassy to serve papers would thus be akin to sending officers into the sovereign territory of the sending state itself. There is nothing offensive, however, about mailing a letter into the sovereign territory of a foreign state. Indeed, that is the very procedure that Sudan and the State Department urge is the preferred and required practice. We therefore find it difficult to understand how mailing a letter to the Foreign Minister of a country in care of that country’s embassy in Washington—particularly given that the embassy remains free to refuse delivery if it so chooses—can be considered a grave insult to the “independence and sovereignty” of the embassy’s premises.

Indeed, the embassy is extended somewhat less sovereignty than the actual territory of the sending state While the precise degree to which the sovereignty of the embassy is less than a state’s control over its own territory is subject to debate, it is evidence that an embassy is not more sovereign than the territory of the sending state itself.

A few points:

• Many states do find the mailing of a letter into its territory to be offensive if the letter constitutes the service of process, because those states regard service of process as a sovereign act that can only be performed, on their territory, by their own officers. This is the point of Article 10(a) of the Hague Service Convention, which gives states that are party to the Convention the right to object to service by postal channels—and many have.
• The practicalities of the court’s decision are unclear to me. The court seems to say that the acknowledgment of receipt is the key point or at least a key point. The papers were sent via certified mail, return receipt requested, and so the acknowledgment of receipt presumably was the signed return receipt that the post office asks to have signed upon delivery. But it seems to me that this can’t be the key moment. The court imagines that the embassy had the opportunity to refuse to acknowledge receipt, but I presume that the person who signed the acknowledgment was more likely a mail clerk than a person in a position to decide whether, as a matter of policy, the papers should be refused. And in any case, you can’t know what an envelope contains until you’ve received it and opened it. So the acknowledgment of receipt shouldn’t really matter—what should matter is whether, within whatever time is appropriate, Sudan gave notice that it refused to accept the papers. (That, after all, is the United States’s practice. According to the opinion, the US refuses service in such circumstances via diplomatic note).
• I think it’s unfortunate that the court spoke in terms of sovereignty and asked whether an embassy is “more” or “less” sovereign that a state’s own territory. As we saw in Puerto Rico v. Sanches Valle, “sovereignty” can mean more than one thing. In today’s case, I’m not really sure what it’s supposed to mean. Maybe the idea is that since a state’s own territory is “more” sovereign than its embassy, and since it’s permissible to send mail to a state’s own territory, a fortiori it’s permissible to send mail to its embassy. But even on the court’s own terms, is this right? Let me preface this with the usual caveats: I’m not a public international law guy, I could be wrong, please correct me if I am. But it seems to me that even in time of war an embassy, or at least an ambassador, has protection, even though, on account of the war, one state has every intention of violating the territorial sovereignty of the other! “The reasons which render embassies necessary, and ambassadors sacred and inviolable, are not less cogent in time of war than in profound peace. On the contrary, the necessity and indispensable duty of preserving some resource by which the minds of the bellligerent parties may be brought to a mutual understanding, and peace be restored, is a fresh reason why the persons of ministers, as instruments in the preliminary conferences and final reconciliation, should be still more sacred and inviolable.” Vattel, book IV, ch. 7, § 86.¹To avoid misleading here: I think Vattel is using “embassy” to mean the ambassador’s job, not physical premises, like in Shakespeare: “Then take my king’s defiance from my mouth, / The farthest limit of my embassy.” (King John I.1). But that doesn’t affect my point, which is about the policies underlying diplomatic inviolability as distinguished from the policies of territorial sovereignty. It seems to me that the policies of the inviolability of an embassy are entirely different form the policy of territorial sovereignty.

The case was not, though, a complete loss for the government and for Sudan. The panel’s first decision had language that could be read to suggest that “§ 1610(g) of the FSIA might permit a person holding a judgment under § 1605A to attach blocked assets without an OFAC license.” The panel, at the government’s request, has now clarified that that is not the case.

On policy grounds, I think the Second Circuit’s approach to the whole issue is unfortunate. Given that the plaintiffs could have effected service via the diplomatic channel, if not by mail to Khartoum rather than to the embassy, what important value justifies rejecting the executive’s construction of the Vienna Convention, or taking a position that is at least in tension with the approach the State Department takes to attempts to serve the United States abroad?

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  To avoid misleading here: I think Vattel is using “embassy” to mean the ambassador’s job, not physical premises, like in Shakespeare: “Then take my king’s defiance from my mouth, / The farthest limit of my embassy.” (King John I.1). But that doesn’t affect my point, which is about the policies underlying diplomatic inviolability as distinguished from the policies of territorial sovereignty.