Update: Maybe I’ve identified a problem that doesn’t exist. The 1991 Draft Articles also permit service by other means “accepted by the State concerned.” So I suppose that if the foreign state declines to accept service by mail, then no harm, no foul?

The case of the day is Wallishauser v. Austria (ECtHR 2012). I’m going to go through the facts of the case, etc., but so as not to bury the lede, I’d like to say up front that the case is interesting because it may call into question some of the service of process provisions of the FSIA.

Roswitha Wallishauser was an Austrian national employed by the US Embassy in Vienna as a photographer. She began working for the embassy in 1978. In 1983, after she suffered an accident, the Austrian government determined that she was disabled and entitled to protection under the Disabled Persons (Employment) Act. In 1987, Wallishauser suffered a second accident, this one work-related, and the Embassy dismissed her.

The proceedings in the Austrian courts were lengthy, and but for present purposes what’s important is that Wallishauser sued for what American lawyers know as front pay, and she tried to serve the summons on the United States through diplomatic channels. The State Department returned the summons to the Austrian embassy without delivering it to the Department of Justice, accompanied by a diplomatic note asserting the United States’s sovereign immunity. As a result, the Vienna Labor and Social Court denied Wallishauser’s motion for a default judgment. The Court of Appeal and the Supreme Court affirmed the decision. Wallishauser then sought service by alternative means, including by appointment of a representative to accept service on the United States. Although the Labor and Social Court granted her motion, the appellate courts reversed, holding that the only permissible method of service was through diplomatic channels, and that since the documents never reached the Department of Justice, service was inadequate. Once Wallishauser reached pensionable age, in 2002, she again sought relief in the Austrian courts, and the result was the same. As a result, Wallishauser had no remedy in the Austrian courts.

Wallishauser then sued Austria in the European Court of Human Rights, asserting that Austria had violated Article 6, [section] 1 of the European Convention on Human Rights, which provides:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The court ruled in favor of Wallishauser. The gist of the decision is that the Austrian courts got the applicable international law wrong. Under customary international law, according to the court, service on a foreign state “was to be effected, in the absence of an applicable international convention, by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned.” (I emphasize the words “through diplomatic channels” for reasons that will become clear in a moment). The court thought that this rule of customary international law, which it found stated in Article 20 of the 1991 Draft Articles on Jurisdictional Immunities of States and their Property, was applicable not just to Austria but to the United States.

This raises the question: if the rule the court derived from the Draft Articles is indeed customary international law binding on the United States, and if, as seems likely, the rule of customary international law postdates the enactment of the Foreign Sovereign Immunities Act, then is the provision of the FSIA that permits service on the defendant state’s foreign ministry by mail, 28 U.S.C. [section] 1608(a)(3), still part of US law? Here is the Restatement’s view:

It has also not been authoritatively determined whether a rule of customary international law that developed after, and is inconsistent with, an earlier statute or international agreement of the United States should be given effect as the law of the United States.¹Restatement (Third) of the Foreign Relations Law of the United States [section] 115 cmt. d (1987).

But there are strong reasons to think that the statute would continue to be the law of the United States, even if the statute is now contrary to customary international law:

There seem to have been no cases in which a court was required to determine whether to give effect to a principle of customary law in the face of an inconsistent earlier statute or international agreement of the United States. Since international customary law and an international agreement have equal authority in international law, and both are law of the United States, arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement. But customary law is made by practice, consent, or acquiescence of the United States, often acting through the President, and it has been argued that the sole act of the President ought not to prevail over a law of the United States. The Executive Branch is unlikely to engage or acquiesce in a practice that is inconsistent with an earlier act of Congress, especially if the statute is recent. Courts in the United States will hesitate to conclude that a principle has become a rule of customary international law if they are required to give it effect in the face of an earlier inconsistent statute.²Restatement [section] 115 rpt. n. 4 (citations omitted).

I’m really curious what folks think about this!

Photo credit: NASA Apollo Archive

• 1
  Restatement (Third) of the Foreign Relations Law of the United States [section] 115 cmt. d (1987).
• 2
  Restatement [section] 115 rpt. n. 4 (citations omitted).