INVIOLABILITY OF PRINCIPLE OF DIPLOMATIC IMMUNITY, MISSION PRIVILEGES INVOKED IN EMERGENCY MEETING OF HOST COUNTRY COMMITTEE

Committee on Relations

with Host Country

208^th Meeting (AM)

INVIOLABILITY OF PRINCIPLE OF DIPLOMATIC IMMUNITY, MISSION PRIVILEGES,

INVOKED IN EMERGENCY MEETING OF HOST COUNTRY COMMITTEE

The Committee on Relations with the Host Country met this morning to consider a complaint from the Cuban Mission regarding the disruption of its "normal and full functioning" caused by a recent restraining notice placed against its bank accounts.

[The notice was issued in connection with a judgement obtained in a Florida State Court in the case of Martinez v. Republic of Cuba, in connection with the shooting down in 1996 of two United States civilian aircraft in the Florida Strait near the Cuban coast.]

Presenting his case at an urgent meeting called at his request, the representative of Cuba said that, as served on Chase Manhattan Bank on 7 August, the restraining notice prohibited the Bank from transferring any funds in the accounts of the Cuban Mission to the United Nations and from honouring its checks. The Cuban Mission enjoyed all the diplomatic privileges and immunities, and it strongly protested against that illegal action, demanding that the host country, in compliance with its legal obligations, immediately remove the notice and any other restrictions on the bank operations of the Mission.  It also requested guarantees that similar incidents would not be repeated in the future.

The restraining notice represented a serious violation of his Mission's diplomatic immunity, leading to a disruption of its full functioning, he said. Although placed under the threat of legal sanctions, Chase Manhattan Bank had continued transactions in its accounts, but the matter before the Committee today involved not only the practical consequences of the incident.  The existence of the notice in itself represented a violation of international law, for diplomatic immunity could not be at the discretion of any private entities.  As the host country had initially taken no steps to address the issue, his Mission had protested in a note verbale of 10 August, which had been presented to the United States Mission (document A/AC.154/341).  A formal answer to that letter had been received by his Mission on 13 August.

[In its response (document A/AC.154/342), the United States Mission stated that it understood from the Chase Manhattan Bank that the diplomatic accounts of the Cuban Mission were operating, notwithstanding a restraining notice served by the plaintiff's attorney in connection with the judgement.  It was the view of the Department of State that the Mission's diplomatic bank accounts were immune from attachment and execution.  "The Department of State may seek assistance of the Department of Justice, should any attempt be made to interfere with the operation of the diplomatic accounts," the document states.]

Cuba's representative added that the United States letter referred to "a misunderstanding" regarding the situation.  He did not believe that was the case, for despite the United States' assertion that the accounts were operating, the restraining notice had been enforced for almost a week.  The fact that the Bank had exercised restraint did not change the situation.  Up to now, the Cuban Mission had not received any communications from the United States authorities regarding the lifting of the notice.  While he was satisfied with the statement that the accounts of the Mission were immune, the United States Mission was acting as if there was no violation of diplomatic immunities or disruption of the normal functioning of the Mission. 

Nor had any response been provided regarding the very substance of the matter:  the legal obligation of the host country to immediately cancel the notice and provide guarantees for the future, he said.  The judgement in the Martinez v. Cuba case was related to terrorist actions against Cuba from American territory, in particular the violation of Cuban air space in 1996.  He wanted guarantees that no United States courts, based on judgements in violation of international law, would establish similar restrictions in the future.  He also wondered who would pay the legal fees that his Mission had incurred in connection with the incident.

Several speakers in the following debate shared the concern of the Cuban delegation, stressing the importance of the matter and expressing support for the inviolability of the principles of diplomatic immunity and privileges of missions.  Emphasizing that the United States should continue to fulfil its legal obligations as a host country, they also expressed satisfaction that the State Department considered the diplomatic bank accounts of the Cuban Mission to be immune from attachment and execution.

The representative of Iraq said that he was aware of the principles of separation of power and independence of the courts.  However, domestic courts had to respect the international agreements to which their government was party.  The principle of legal immunity of diplomatic missions' accounts was well recognized by international law.  Represented at the meetings which had addressed that issue, the United States delegation had not voiced any objections on the matter.  The Government of the host country was bound by law to ensure normal functioning of Missions, and he supported the demand for guarantees by the Government of Cuba.

The representative of Libya also supported the Cuban position and pointed out that the incident in question should not have occurred.  While the United States' response contained some positive elements, he expressed concern over the restraining notice, which could create an unfortunate precedent.  He also addressed the issue of the restrictions on his own Mission's accounts, which put his delegation in a difficult position.  Following the resolution of the so-called Lockerby crisis, the host country should lift those restrictions in their entirety.

In response, the representative of the United States said that his country's position regarding diplomatic immunity remained unchanged.  In the past, his Government had taken all the steps necessary to make the diplomatic accounts free and clear from any obstructions.  In this case, an attempt had been made by an individual attorney to place a restraining order on the Mission's bank accounts.  However, there was no court order to that effect -– only a judgement from a

Florida court on the case itself.  "You can get a judgement, but you cannot have execution," he said.  Chase Manhattan Bank had realized that it was not a court order.  The Bank had also assured his Mission that the accounts of the Mission would remain operational. 

Continuing, he said that he was prepared to present letters from the Offices of the Assets Control Director and United States Attorney for the South District, which explained why the restraining notice was illegal and showed that the notice had been removed.  Referring to the "misunderstanding" mentioned in the letter, he said that the attorneys of the Cuban Mission had thought that a restraining order was in effect and that the accounts could not function. 

Regarding guarantees for the future, he said that he could guarantee that the bank accounts of the Missions would be protected, but he was unable to guarantee that no attempts would be made in courts to place restrictions on them in the future.  His delegation had always maintained that diplomatic bank accounts should be immune.  There was no need to politicize the matter.  In the past, the Committee would have tried to resolve the problem without resorting to an extraordinary meeting. 

"Back off here," he called on those present, saying that with the Host Country Committee meeting six times a year, there was no need for an urgent meeting.  "We have enough real problems to deal with.  There is no need to go into perceived problems," he added.  While having to deal with the separation of powers, his country had always been very successful in carrying out its obligations as a host country.

As for Libya's accounts, he said that it was understood that its Mission needed to continue its operations, and the level of its needs had been determined.  If that was not sufficient, the Mission needed to pursue that matter with the host country.  If it were not for the United Nations, it would not be able to function in New York. 

Also speaking this morning were the representatives of Malaysia, China, France, Russian Federation, Costa Rica and Cyprus.

The Committee on Relations with the Host Country will meet again at a date to be announced.

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