United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE
respect to the defendant's offer of proof, at 3:00 pm on
August 29, 2018:
courts of the United States may take judicial notice of
treaties made by the United States with foreign governments.
United States v. Reynes, 50 U.S. 127, 147-48 (1850).
Accordingly, the Court will take notice of the text of the
two international conventions the Court believes the
defendant to be relying upon: the Montevideo Convention on
the Rights and Duties of States and the Vienna Convention on
Diplomatic Relations. But the Court finds that those
conventions do not support the defendant's arguments.
the defendant referred to the "Montevideo Convention on
Consular Relations" which the Court assumes is a
reference to the Montevideo Convention on the Rights and
Duties of States, Dec. 26, 1933, 165 L.N.T.S.
That treaty does confirm the proposition of customary
international law that
[t]he political existence of the state is independent of
recognition by the other states. Even before recognition the
state has the right to defend its integrity and independence,
to provide for its conservation and prosperity, and
consequently to organize itself as it sees fit, to legislate
upon its interests, administer its services, and to define
the jurisdiction and competence of its courts.
Id., art. 3., see Restatement (Third) of
Foreign Relations Law § 202 (1987). But those provisions
relate to the authority of states to regulate their own
affairs-not to officials of foreign states when passing
through other states. Cf. Samantar v. Yousuf, 560
U.S. 305, 314-15 (2010). Nothing in the Montevideo Convention
permits a foreign entity to unilaterally confer immunity from
prosecution on people present in the United States.
when foreign sovereign immunity is claimed, the Court's
jurisdiction will be surrendered "on recognition,
allowance and certification of the asserted immunity by the
political branch of the government charged with the conduct
of foreign affairs when its certificate to that effect is
presented to the court by the Attorney General." See
Republic of Mexico v. Hoffman, 324 U.S. 30, 34
(1945). If the claimed immunity has not been
recognized by the political branch of government charged with
conducting foreign affairs-that is, the State Department-then
the Court may decide for itself whether the requisites of
immunity exist. Id. at 34-35. But in making that
decision, the Court inquires whether the ground of immunity
is one which it is the established policy of the State
Department to recognize. Id. at 36; accord
Samantar, 560 U.S. at 312.
there is nothing in the record here-nothing at all-to suggest
that the State Department has an established policy of
recognizing the kind of immunity asserted here. See
Samantar, 560 U.S. at 312-13.
other source of international law relied upon by the
defendant- the Vienna Convention on Diplomatic Relations,
April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95-does not help
him either. He points to Art. 39, § 1, which provides
Every person entitled to privileges and immunities shall
enjoy them from the moment he enters the territory of the
receiving State on proceeding to take up his post or, if
already in its territory, from the moment when his
appointment is notified to the Ministry for Foreign Affairs
or such other ministry as may be agreed.
Art. 2 expressly provides that "establishment of
diplomatic relations between States, and of permanent
diplomatic missions, takes place by mutual consent." And
Art. 4, § 1, expressly provides that "the sending
State must make certain that the agrément of the
receiving State has been given for the person it proposes to
accredit as head of the mission to that State."
is nothing here-either in the record, or the defendant's
offers of proof-to demonstrate to the Court that the
defendant has been accepted by the United States government
as head of a diplomatic mission. (The defendant is claiming
to be an "ambassador," which would be a head of
mission. See id., Art. 14, § 1.) Nor is there
anything to suggest that anyone else has been accepted by the
United States government as a head of mission with authority
to appoint other members of the diplomatic staff. See
id., Art. 7. And it is the executive that determines a
person's status as representative of a foreign
government. Baker v. Carr, 369 U.S. 186, 213 (1962);
see Zivotofsky ex rel. Zivotofsky v. Kerry, 135
S.Ct. 2076, 2089 (2015).
addition, the Court notes that whether a party is entitled to
immunity is a question of law, not fact. Lopez v.
Mendez, 432 F.3d 829, 835 (8th Cir. 2005). So, even if
there is evidence relating to sovereign immunity, it would be
inappropriate to submit it the jury. See id.
these reasons, IT IS ORDERED that the government's
objections to ...