The New York Times reported on the story of the New Yorkers who live in an apartment building near the United Nations. Their building is next-door to Bhutan’s permanent mission to the UN. According to the neighbors, Bhutan keeps a “vexingly loud air-conditioning unit on the roof of the building.” So far, they haven’t had any luck in getting relief from the noise.

The Times raises questions about whether anything can be done. “Enforcing any penalties could prove tricky, anyway, given the rules of diplomatic immunity.” This isn’t exactly right. Presumably if the neighbors sue anyone, it will be Bhutan itself and not any diplomat. So the diplomats’ immunity isn’t really the issue.

It seems to me there are two issues here. The first is whether a claim for nuisance (the most likely claim, though there might be others) would be within an exception to Bhutan’s foreign sovereign immunity. The most likely exception is the noncommercial tort exception, which allows suits against foreign states that are not within the commercial activity exception and that do not attack “the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” It seems to me that a nuisance claim can likely survive in the Second Circuit, and that the foreign state cannot say, for example, that the claim is barred because it is based on a discretionary decision to locate the mission in a particular building or to install an air conditioner. See USAA v. Permanent Mission of the Republic of Namibia, 681 F.3d 103 (2d Cir. 2012). On the other hand, the Namibia case involved a wall that collapsed and caused actual, physical property damage. Here, the neighbors’ enjoyment of their own property has been injured, but has there been any “personal injury or … damage to or loss of property,” as the FSIA requires? I’m not sure.

Second, is there an issue under the Vienna Convention on Diplomatic Relations arising out of the inviolability of the mission’s premises? The core concern protected by inviolability isn’t implicated here; no one is talking about entering the mission. Perhaps the remedy the plaintiffs might seek would be relevant. A damages remedy would arguably have nothing to do with the mission’s premises, while an equitable remedy requiring Bhutan to take steps within the premises might raise a real issue. See generally Harvey v. Permanent Mission of Sierra Leone, 2022 U.S. Dist. LEXIS 116858 (S.D.N.Y. Jul. 1, 2022), which touches on such issues.

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