I.
Following the recent attacks on American embassies,[1] a number of commentators asserted that the premises of such facilities are sovereign United States territory. According to Congressman Mike Fitzpatrick, for instance, “An attack on an American embassy is an attack on American soil.”[2] Fr. Raymond de Souza likewise stated that “America’s sovereign embassy in Tunis . . . is American territory . . . .”[3] This view, which admittedly finds some support in judicial dicta[4] and international-law commentary from earlier centuries,[5] has also been echoed both elsewhere around the web,[6] and in the halls of Congress.[7]
Once upon a time, I too thought that embassies were extraterritorial, or “[b]eyond the geographic limits of”[8] the countries in which they were located. However, I no longer believe that. Rather, it appears – at least to this non-lawyer – that, contrary to popular belief, the land occupied by a U.S. embassy in a foreign country is actually foreign – not American – territory. Admittedly, “The premises . . . of an accredited diplomatic mission . . . are inviolable, and are immune from any exercise of jurisdiction by the receiving state [i.e., the nation in which the embassy is located] that would interfere with their official use.”[9] However, this inviolability of embassy premises does not place those premises outside the territory of the receiving state, nor make them part of the sending state (i.e., the nation the embassy represents).[10]
II.
This concept of U.S. embassies as foreign territory finds considerable support in American case law. In several decisions, courts in various jurisdictions have denied that embassies and consulates are part of the United States for the purposes of several federal statutes. For instance, under the Foreign Sovereign Immunities Act (FSIA),[11] a foreign nation may be sued for death, injury, or damage “occurring in the United States and caused by [a] tortious act or omission” on the part of that nation or any official thereof.[12] However, courts have repeatedly rejected FSIA suits involving acts within the premises of U.S. embassies, on the grounds that embassies are not part of the “United States” for FSIA purposes.[13] Similarly, the Federal Tort Claims Act[14] authorizes suits against the United States, but forecloses liability for “[a]ny claim arising in a foreign country.”[15] Courts have repeatedly held that this exception bars claims involving actions within American embassy premises.[16]
Other American decisions have similarly characterized American embassies as foreign soil. United States v. Bin Laden, for instance, condemned the opposite position as “a false assumption . . . .”[17] Poole v. Brown held that “American embassies are not considered to be American soil.”[18] In De La Rosa Herrera v. Martin, the Virginia Court of Appeals rejected an appellant’s argument that because his “visa was issued at an American consulate and, thus was on American soil[,]” “the issuance of his visa fulfilled the ‘condition precedent to his ability to work in the United States.’”[19] Souryal v. Torres Advanced Enterprise Solutions dismissed a claim under the Federal and Medical Leave Act[20] by an employee of the U.S. embassy in Baghdad because FMLA, in the eyes of the court, does not apply extraterritorially,[21] and plaintiff’s “worksite was outside U.S. territory”[22] “[b]ecause the Embassy in Baghdad is not a U.S. territory . . . .”[23] In United States v. Ortega, a federal magistrate judge rejected a governmental argument that “a United States Consulate in Nogales, Sonora, Mexico” is “United States’ soil,” by noting that “the government did not have authority for its proposition . . . and the Court’s review of the law suggests otherwise.”[24] Further echoes of this view can be found in at least eight other decisions from numerous jurisdictions.[25]
Several other federal decisions have affirmed convictions for crimes committed at U.S. embassies and consulates. In so doing, however, these decisions have not characterized these properties as American territory, but rather have held that various federal statutes apply extraterritorially to actions occurring upon foreign soil. For example, several decisions have taken this approach when affirming convictions for false statements made on visa applications at American consulates.[26] United States v. Corey also followed this approach when affirming a conviction for sexual abuse committed on U.S. embassy premises in the Philippines.[27] These decisions clearly imply that American embassies and consulates are foreign territory; because if they weren’t, there would be no need to consider the question of extraterritorial applicability.
The U.S. Department of State has also long denied that American embassies are U.S. territory. For example, the most recent edition of the Department’s Foreign Affairs Manual states that American “diplomatic and consular premises . . . are not part of the territory of the United States of America.”[28] During a 1982 congressional hearing, Thomas Simons, Director of the State Department’s Office of Soviet Union Affairs, repeatedly affirmed that American embassies were foreign soil.[29] In 1963, Assistant Secretary of State Frederick Dutton informed Sen. Kenneth Keating that, “It has long been the view of the Department of State that the legal theory surrounding the privileged status of an Embassy or legation is property [properly] characterized as ‘inviolability’, rather than ‘extraterritoriality’ [exterritoriality].”[30] In 1936, Boaz Long, the U.S. Ambassador to Nicaragua, stated that “the American Embassy at Paris is not technically American soil.”[31] And in 1930, Prentiss Gilbert, Acting Chief of the State Department’s Division of Western European Affairs, observed that “While the United States Government owns the premises occupied by the American Embassy in Paris, it is not believed that a private contract signed in the Embassy would because of this fact be held not to have been executed on French territory.”[32]
In addition, both American courts and the State Department have rejected the extraterritoriality of foreign embassies in the United States, along with that of American embassies abroad. In 1963, for example, the D.C. Court of Appeals recognized that “a foreign embassy is not to be considered the territory of the sending state . . . .”[33] With regard to the Italian Consulate in New York City, Sorge v. City of New York held that “A foreign consulate is United States territory . . . .”[34] In 1978, the State Department denied that Yugoslavia’s UN Mission in New York City and the Philippine Embassy in Washington, D.C., were extraterritorial.[35] In 1999, El-Hadad v. Embassy of the United Arab Emirates characterized the dismissal of an employee of the U.A.E.’s Washington, D.C., embassy as having “occurred within the United States, since . . . a foreign state’s embassy is considered to be within the host country’s territory.”[36] Because these authorities reject not only the extraterritoriality of embassies within the United States, but also, more broadly, the notion of embassy extraterritoriality itself, they therefore provide further support for denying extraterritoriality to embassies abroad as well as at home.
Finally, international law likewise considers embassies to be the territory of the receiving – not sending – state. The silence of the Vienna Convention on Diplomatic Relations[37] regarding embassy extraterritoriality, which stands in stark contrast to the explicit endorsements from prior centuries,[38] would seem to constitute an implicit rejection of the concept.[39] State practice in many countries – including the United Kingdom,[40] the United States,[41] Belgium,[42] Italy,[43] France,[44] Canada,[45] Germany,[46] and Austria[47] – has also denied the extraterritoriality of embassies. So also have many prominent international law commentators.[48] Admittedly, the relevance of international law to American law is debatable. However, if it is indeed true that “[i]nternational law is part of our law,”[49] and that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains,”[50] then it appears noteworthy that international law shares America’s rejection of embassy extraterritoriality.
III.
In light of the foregoing discussion, it appears that the commonly-held equation of American embassies with U.S. territory is incorrect. Such embassies really are parts of the foreign countries in which they are located, not the United States. This does not render attacks on American embassies unworthy of condemnation. It does mean, however, that any such incident cannot be considered an attack on American soil.
[1] Bibliographic Note: This note alphabetically lists sources repeatedly cited in this post:
Eileen Denza, Diplomatic law: A Commentary on the Vienna Convention on Diplomatic Relations (2d ed. 1998).
Charles G. Fenwick, International Law (4th ed. 1965).
Green Haywood Hackworth, Digest of International Law (1940-1944).
John Bassett Moore, A Digest of International Law (1906).
Marjorie M. Whiteman, Digest of International Law (1963-1973).
[2] Press Release, Mike Fitzpatrick, Statement from Congressman Fitzpatrick on Attacks on U.S. Embassies (Sep. 12, 2012), available at http://fitzpatrick.house.gov/press-release/statement-congressman-fitzpatrick-attacks-us-embassies.
[3] Raymond de Souza, U.S. embassy attacks show a country in decline, Father Raymond J. de Souza (Sep. 19, 2012), http://fatherdesouza.ca/?p=1210.
[4] See United States v. Erdos, 474 F.2d 157, 159 (4th Cir. 1973) (characterizing “United States Embassy in Equatorial Guinea” as “a part of the territory of the United States.”); United States v. Morton, 314 F. Supp. 2d 509, 512 (D. Md. 2004) (similar); Pashby v. Commissioner, 25 T.C.M. (CCH) 667, 668 (1966) (similar). See also Souryal v. Torres Advanced Enter. Solutions, 847 F. Supp. 2d 835, 841 n.4 (E.D. Va. 2012) (deeming Erdos’s statement to be dictum). So far as I am aware, the only holding supporting embassy extraterritoriality is United States v. Archer, 51 F. Supp. 708 (S.D. Cal. 1943), which stated that “[a] consulate . . . . is a part of the territory of the United States of America,” id. at 709; and even this bare assertion, unsupported by either reasoning or citation to authority, seems entitled to little weight. Additionally, even assuming arguendo that the statements in Erdos, Morton, and Pashby were also holdings, not dicta, any precedential force they might possess would seem to be outweighed by many other contrary holdings discussed in this post.
[5] See 1 James Lorimer, Institutes of the Law of Nations 248 (Edinburgh & London, William Blackwood & Sons 1883) (“An English ambassador, with his family and his suite, whilst abroad in the public service, is domiciled in England, and his house is English ground.”); Travers Twiss, The Law of Nations Considered as Independent Political Communities 304-06 (London, Oxford Press 1861) (similar); 3 Emmerich De Vattel, The Law of Nations or The Principles of Natural Law 394 (Charles G. Fenwick trans., Carnegie Inst. of Wash. 1916) (1758) (similar).
[6] See, e.g., Editorial, Arab Harvest, Nat’l Rev., Sep. 13, 2012, http://www.nationalreview.com/articles/316726/arab-harvest-editors (characterizing “attacks . . . on the U.S. embassy in Cairo, Egypt, and the consulate in Benghazi, Libya” as instances wherein “sovereign American soil [was] violated . . . .”); Paul Greenberg, Op-Ed., America attacked — again on September 11th, Chi. Trib., Sep. 14, 2012, http://articles.chicagotribune.com/2012-09-14/news/sns-201209141200–tms–pgreenbgtp–u-a20120914-20120914_1_cairo-embassy-tweets (similar); Matthew Holzmann, 9/11 – The International Day of Jihad, Am. Thinker, Sep. 12, 2012,
http://www.americanthinker.com/blog/2012/09/911_-_the_international_day_of_jihad.html (similar); Naithom, Romney: Smiling with Blood on the Ground, Red Roses for a Blue Lady (Sep. 12, 2012, 7:24PM), http://open.salon.com/blog/naithom/2012/09/12/romney_smiling_with_blood_on_the_ground (similar); Hyatt Seligman, Obama at the U.N.: Emboldening the Barbarians at the Gate, Am. Thinker, Sep. 30, 2012, http://www.americanthinker.com/2012/09/obama_at_the_un_emboldening_the_barbarians_at_the_gate.html (similar); Sen. Portman: Cairo embassy statement “inappropriate”, CBS News, Sep. 13, 2012, http://www.cbsnews.com/8301-250_162-57512000/sen-portman-cairo-embassy-statement-inappropriate/ (similar); Crandall Sims, Ambassador Wilkins: American Soil is Sovereign Soil, ABC Columbia, Sep. 12, 2012, http://www.abccolumbia.com/news/local/Ambassador-Wilkins–Its-a-pretty-graphic-reminder-the-war-on-terror-isnt-over–169534866.html (similar); Jim Varnadore, Letter to the Editor, U-T San Diego, Sep. 13, 2012, http://www.utsandiego.com/news/2012/sep/13/letters-reactions-libya-violence/ (similar); What Is a U.S. Embassy?, eHow, http://www.ehow.com/facts_5744324_u_s_-embassy_.html (last visited Oct. 9, 2012) (similar); Mark Whittington, Obama State Department Responds to Embassy Attacks with Appeasement, Yahoo! Voices,
Sep. 12, 2012, http://voices.yahoo.com/obama-state-department-responds-embassy-attacks-11759348.html (similar).
[7] See, e.g., 158 Cong. Rec. H5864 (daily ed. Sep. 12, 2012) (statement of Rep. Poe) (“Both of these places are U.S. sovereign soil, the consulate and the Embassy.”); id. at H5918 (statement of Rep. Gohmert) (similar); 158 Cong. Rec. H5966 (daily ed. Sep. 13, 2012) (statement of Rep. Garrett) (similar).
[8] Black’s Law Dictionary 666 (9th ed. 2009).
[9] Restatement (Third) of the Foreign Relations Law of the United States § 466 (1987).
[10] Id. § 466 cmt. a (“That [diplomatic] premises are inviolable does not mean that they are extraterritorial.”).
[11] 28 U.S.C. §§ 1330, 1332(a), 1391(f), 1441(d), 1602-1611 (2006).
[12] Id. § 1605(a)(5) (emphasis added).
[13] See Persinger v. Islamic Republic of Iran, 729 F.2d 835, 838-39 (D.C. Cir. 1984) (held that the U.S. embassy in Iran was not part of the “United States” for the purposes of FSIA); McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir. 1983) (similar); Abur v. Republic of Sudan, 437 F. Supp. 2d 166, 174-75 (D.D.C. 2006) (quoting 28 U.S.C. § 1605(a)(5)(2006)) (similar); Ledgerwood v. State of Iran, 617 F. Supp. 311, 314 (D.D.C. 1985) (similar).
[14] 28 U.S.C. §§ 1346(b), 2671-2680 (2006).
[15] Id. § 2680(k).
[16] Id. See Meredith v. United States, 330 F.2d 9 (9th Cir. 1964) (actions occurring in the U.S. embassy in Bangkok fell within the FTCA’s “foreign country” exception.); Gauthier v. United States, No. 4:10-40116-FDS, 2011 U.S. Dist. LEXIS 99246, at *26-27 (D. Mass. Sep. 2, 2011) (similar); Macharia v. United States, 238 F. Supp. 2d 13, 27 (D.D.C. 2002) (similar), aff’d 334 F.3d 61 (D.C. Cir. 2003); MacCaskill v. United States, 834 F. Supp. 14, 16 (D.D.C. 1993) (similar), aff’d 24 F.3d 1464 (D.C. Cir. 1994); Gerritson v. Vance, 488 F. Supp. 267, 268 (D. Mass. 1980) (similar).
[17] United States v. Bin Laden, 92 F. Supp.2d 189, 212-13 (S.D.N.Y. 2000).
[18] Poole v. Brown, 706 F. Supp. 74, 76 (D.D.C. 1989).
[19] De La Rosa Herrera v. Martin, 642 S.E.2d 309, 313 (Va. Ct. App. 2007).
[20] 29 U.S.C. § 2601-2654 (2006).
[21] Souryal v. Torres Advanced Enter. Solutions, 847 F. Supp. 2d 835, 841-43 (E.D. Va. 2012).
[22] Id. at 836.
[23] Id.; see also id. at 839-40 (explaining why the U.S. embassy in Baghdad isn’t U.S. territory).
[24] Report and Recommendation at *13, *13 n.2, United States v. Ortega, No. CR-10-2444-TUC-DCB-DTF, 2011 U.S. Dist. LEXIS 84117 (D. Ariz., July 28, 2011).
[25] See United States v. Gatlin, 216 F.3d 207, 214 n.9 (2d. Cir. 2000); Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 246 (2d. Cir. 1996); Beattie v. United States, 756 F.2d 91, 97 (D.C. Cir. 1984); Agee v. Muskegee, 629 F.2d 80, 111 (D.C. Cir. 1980); United States v. Ayesh, 762 F. Supp. 2d 832, 837 n.2 (E.D. Va. 2011); Dammarell v. Islamic Republic of Iran, No. 01-2224 (JDB), 2005 U.S. Dist. LEXIS 5343, at *87-88 (D.D.C. Mar. 29, 2005); Mwani v. United States, No. 99-0125 (CKK), 2004 U.S. Dist. LEXIS 28170, at *18 n.7 (D.D.C. Jun. 22, 2004); Donahue v. U.S. Dep’t. of Justice, 751 F. Supp. 45, 47 (S.D.N.Y. 1990).
[26] See 18 U.S.C. § 1546 (2006); United States v. Pizzarusso, 388 F.2d 8, 9 (2d Cir. 1968); Rocha v. United States, 288 F.2d 545, 546-48 (9th Cir. 1961); United States v. Rodriguez, 182 F. Supp. 479, 483, 494 (S.D. Cal. 1960).
[27] See United States v. Corey, 232 F.3d 1166 (9th Cir. 2000).
[28] 7 U.S. Dep’t Of State, Foreign Affairs Manual § 1113(c)(2) (2012).
[29] Siberian Seven: Hearing Before the Subcommittee on Immigration, Refugees, and International Law of the Committee of the Judiciary, House of Representatives, 97th Cong. 16 (1982) (statement of Thomas W. Simons, Director of the Office of Soviet Union Affairs, U.S. Dep’t of State).
[30] Letter from Frederick Dutton, Assistant Sec’y of State for Congressional Relations, U.S., to Kenneth Keating, Senator, U.S. (Aug. 19, 1963), in 7 Whiteman, supra note 1, at 355, 355 (1970).
[31] Letter from Boaz Long, Ambassador to Nicar., U.S., to Cordell Hull, Sec’y of State, U.S. (Sep. 21, 1936), in 4 Hackworth, supra note 1, at 564, 564 (1942).
[32] Letter from Prentiss Gilbert, Acting Chief of the Division of Western European Affairs, U.S., to Faustine Dennis (Mar. 26, 1930), in 4 Hackworth, supra note 1, at 564, 565 (1942).
[33] Fatemi v. United States, 192 A.2d 525, 527 (D.C. 1963) (footnotes omitted), cert. denied, 377 U.S. 997 (1964).
[34] Sorge v. City of New York, 288 N.Y.S.2d 787, 798-99 (N.Y. Sup. Ct. 1968).
[35] Letter from Anthony C. E. Quainton, Director of the Office for Combatting Terrorism, U.S. Dep’t of State, to William H. Webster, Director, Federal Bureau of Investigation (Sep. 11, 1978), in 1978 Marian Lloyd Nash, Digest of United States Practice in International Law 573, 573 (1980).
[36] El-Hadad v. Embassy of the United Arab Emirates, 69 F. Supp. 2d 69, 81 (D.D.C. 1999).
[37] Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23.3 U.S.T. 3227, 500 U.N.T.S. 95.
[38] See Denza, supra note 1, at 113 (“By the middle of the eighteenth century . . . diplomatic missions were regarded in law as portions of the territory of the sending State.”); supra note 5.
[39] See Fenwick, supra note 1, at 562 (noting that embassy extraterritoriality “is abandoned in the Vienna Convention . . . .”).
[40] See 7 Whiteman, supra note 1, at 355 (1970) (noting British prosecution for criminal violations occurring in U.S. embassy in London).
[41] See id. at 356 (noting U.S. prosecution of vandalism directed at Soviet Embassy in Washington, D.C.).
[42] See id. at 357 (noting denial by Belgian court that Belgian embassy in Berlin was Belgian territory); id. at 19 (similar for Belgian embassy in London).
[43] See id. at 357-58 (noting Italian court decision that Greek embassy in Rome was Italian soil); 6 id. at 978 (similar for Papal properties that were in Italy and outside Vatican City).
[44] See 7 id. at 358 (noting French court’s characterization of American embassy in Paris as French territory).
[45] See id. at 358-59 (noting Canadian court’s suggestion that Pakistani Embassy in Washington, D.C., is not Pakistani territory).
[46] See 2 Moore, supra note 1, at 779 (noting German court decision deeming American legation in Berlin to be German territory).
[47] See 7 Whiteman, supra note 1, at 359 (1970) (Austrian court characterizes foreign embassies in Austria as Austrian territory).
[48] See, e.g., J.L. Brierly, The Law of Nations; An Introduction to the International Law of Peace 260 (1963) (“The inviolability of diplomatic premises does not mean that they are to be considered as altogether outside the application of the law of the receiving state–a foreign enclave within its territory. . . . [T]he premises are not extra-territorial . . . .”); Denza, supra note 1, at 113-14 (similar); Fenwick, supra note 1, at 565 (similar); William Edward Hall, A Treatise on International Law 232-33 (A. Pearce Higgins ed., 8th ed. 1924) (similar); 1 Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States 761 (1922) (similar); William Oke Manning, Commentaries on the Law of Nations 110 (Sheldon Amos ed., 2d ed. 1875) (1839) (similar); 2 Moore, supra note 1, at 774-79 (similar); 1 L. Oppenheim, International Law: A Treatise 793 n.3, 796 (H. Lauterpacht ed., 7th ed. 1952) (similar); Henry Wheaton, Elements of International Law 303-04 n.129 (Richard Henry Dana ed., Boston, Little, Brown, & Co. 1866) (1836) (similar).
[49] The Paquete Habana, 175 U.S. 677, 700 (1900).
[50] Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
Fascinating. I had always assumed, as it appears you did, that they were American territory. I wonder if diplomatic immunity is also more limited than commonly thought?
Steve
This seems logical. How many Americans would consider the land the foreign embassies are sitting on in D.C. to not be ultimately U.S. territory?
This is fascinating, but I think you introduce a red herring by mentioning consulates (and, of course, what happened at Benghazi was at a consulate, not an embassy.) So far as I know, consulates have NEVER been considered equivalent to embassies for purposes of extraterritoriality. US consulates were run by an entirely different branch of the government from embassies (Dept. of Commerce, I think) for many years, because their purpose was entirely different–not to represent the US to foreign governments and people, but to provide conveniences to US merchants abroad. Under the rubric of international courtesy, consulates and their personnel enjoy a lot of the same privileges as embassies and THEIR people. Consuls are considered “diplomats” for purposes of immunity, for instance. But I’m not even sure consulates are “inviolable.”
Glad y’all found this interesting. In response to various points raised:
Steve – honestly, I’m not sure. I do know diplomats actually are obliged to obey the laws of the receiving state; IIRC, they can even be penalized for failing to do so if the sending state withdraws their diplomatic immunity.
Mustang Sally – having not done a poll, I couldn’t say. Considering how commonly-held the notion of embassy extraterritoriality is, I wouldn’t be surprised if at least some Americans applied this misconception to foreign embassies stateside as well as U.S. embassies abroad.
WiredSisters – I agree that consulates are different from embassies. That said, it appears consular premises are inviolable. See Vienna Convention on Consular Relations art. 31(1), Apr. 24, 1963, 21.1 U.S.T. 77, 596 U.N.T.S. 261 (“Consular premises shall be inviolable to the extent provided in this Article.”); Restatement (Third) of the Foreign Relations Law of the United States § 466 (1987) (“The premises . . . of an accredited diplomatic mission or consular post are inviolable . . . .”). The Pasby & Archer cases cited in footnote 4 claimed the extraterritoriality of consular premises. However, Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964), rejected FTCA’s applicability to damages in U.S. consulates, as well as U.S. embassies, abroad. Similarly, the Third Restatement’s distinction between inviolability & extraterritoriality (cited in footnote 10) also applies to consular premises. It thus appears, at least to me, that consulates are no more extraterritorial than embassies are.