Embassy and for the central bank of the Republic of Liberia.
The Court concludes that the bank accounts of the Embassy of Liberia are immune from attachment under the Vienna Convention, 23 U.S.T. 3227, Apr. 18, 1961, T.I.A.S. No. 7502.
The Vienna Convention provides in Article 25 that "the receiving State shall accord full facilities for the performance of the functions of the mission." 23 U.S.T. at 3238. The Liberian Embassy lacks the "full facilities" the Government of the United States has agreed to accord if, to satisfy a civil judgment, the Court permits a writ of attachment to seize official bank accounts used or intended to be used for purposes of the diplomatic mission.
If the "full facilities" to which the United States agreed to "accord" diplomatic immunity did not include bank accounts off the premises of the mission, the Liberian Embassy either would have to take grossly inconvenient measures, such as issuing only checks drawn on a Liberian bank, or would have to run the risk that judgment creditors of Liberia would cause the accounts the Embassy holds at banks located in the United States to be seized for an indefinite length of time, severely hampering the performance of the Embassy's diplomatic functions. Moreover, to interpret the term "accord," as used in Article 25, as merely allowing the Liberian Embassy to use bank accounts located in the United States but not affording the accounts the protection of diplomatic immunity would pay mere lip service both to Article 25 and to the intent of the Vienna Convention, as stated in its Preamble: "to ensure the efficient performance of the functions of diplomatic missions as representing States." 23 U.S.T. at 3230. The Liberian Embassy hardly could function efficiently without local bank accounts.
At the hearing on Liberia's motion, LETCO argued that only funds maintained on the premises of the mission are to be afforded diplomatic immunity because only property described in Article 22(3) of the Vienna Convention is exempt from attachment.
The Court does not agree with LETCO's contention. Article 22(3) does not provide the exclusive authority in the Vienna Convention to determine which property enjoys diplomatic immunity from attachment. Article 31 states that immovable property used for the purposes of the mission enjoys immunity from civil and administrative jurisdiction. Article 24 states that the archives and documents of the mission are inviolable wherever they may be. Although no provision of the Vienna Convention states specifically that official bank accounts used or intended to be used for purposes of the diplomatic mission enjoy diplomatic immunity from attachment, the Court concludes that not affording diplomatic immunity to the Embassy's bank accounts, despite the absence of such a specific provision, is inconsistent with both the agreement set forth in Article 25 and the intention of the parties to the Vienna Convention.
Under the Vienna Convention, therefore, the bank accounts of the Liberian Embassy used or intended to be used for purposes of the diplomatic mission are immune from attachment to satisfy a civil judgment. Although a finding of diplomatic immunity under the Vienna Convention resolves this matter as to the bank accounts of the Liberian Embassy, the Court also discusses the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611, to make clear that the bank accounts of the Liberian Embassy are immune from attachment regardless of a finding of diplomatic immunity.
The FSIA sets forth, inter alia, when a foreign state's property in the United States is not entitled to immunity from attachment. Title 28 U.S.C. § 1609 sets forth the general rule regarding sovereign immunity from attachment: "The property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter."
LETCO, in accordance with the injunction ordered by the District Court for the Southern District of New York, relies on an exception to the general rule of immunity, 28 U.S.C. § 1610(a)(1), which provides:
(a) The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if --