FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2017-003

ESTATE OF ELIHNA GALLEN, and PATERSON	)				
GALLEN, BRYAN GALLEN, EDWARD GALLEN,	)
ARVIN GALLEN, QUINCY GALLEN, PATRICK		)
GALLEN, and HERBERT GALLEN,			)
)
Real Parties in Interest, Plaintiffs,	)
)
vs.						)
)
GOVERNOR OF THE STATE OF POHNPEI,		)
POHNPEI STATE GOVERNMENT, SPEAKER OF	)
THE POHNPEI LEGISLATURE, the PUBLIC		)
LANDS TRUST BOARD OF POHNPEI STATE,		)
and the EMBASSY OF THE PEOPLE’S REPUBLIC	)
OF CHINA,						)
)
Defendants.				)
_____________________________________________	)

	ORDER DISMISSING DEFENDANT CHINESE EMBASSY

	Larry Wentworth
	Associate Justice

	Decided:  March 12, 2018

APPEARANCES:

For the Plaintiffs:	Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941

For the Defendants:	Dana W. Smith, Esq.
Attorney General
Judah C. Johnny
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

For the Defendant:	Kasio "Kembo" Mida, Jr., Esq.
(Chinese Embassy)	Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Treaties
In determining whether a treaty is self-executing, a court looks to the text, the negotiation and drafting history, and the postratification understanding of the signatory nations.  Preparatory documents and the parties’ subsequent conduct can be used to determine the parties’ intentions.  Additionally, the executive branch’s interpretation of a treaty is entitled to great weight.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 n.1 (Pon. 2018).

International Law  Diplomatic Relations
The FSM has enacted legislation that gives positive effect to the Vienna Convention on Diplomatic Relations of April 18, 1961.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations
Diplomatic missions, members of the mission, and their families and private servants, and diplomatic couriers assigned to the mission shall be afforded the privileges, immunities, protections, and exemptions specified in the Vienna Convention on Diplomatic Relations of April 18, 1961.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations
The FSM statute explicitly incorporates the Vienna Convention’s diplomatic immunity provisions into FSM law.  Thus, the Vienna Convention’s diplomatic immunity provisions apply in the FSM, regardless of whether the Vienna Convention is self-executing.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations

Since no reciprocal determination has been made concerning the Chinese Embassy, the Vienna Convention’s diplomatic immunity provisions apply unaltered to the Chinese Embassy in the FSM.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

Civil Procedure  Dismissal; International Law  Diplomatic Relations
Any action or proceeding brought against an individual who is entitled to diplomatic immunity with respect to such action or proceeding under any FSM law extending diplomatic privileges and immunities, must be dismissed.  Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations
The Vienna Convention on Diplomatic Relations embodies customary international law, including the "practice of states," and under international law and FSM statute, the Chinese Embassy premises is inviolable, and its premises shall be immune from search, requisition, attachment, or execution.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

Attachment and Execution
Attachment and execution are products of litigation.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations
Embassy premises, since they are held on behalf of the sending state for the purposes of the mission, are thus immune from suit.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations
The Chinese Embassy is immune from litigation.  This immunity is established by treaty (the Vienna Convention), by customary international law, and by FSM statutory law.  Estate of Gallen v. Governor, 21 FSM R. 457, 461 (Pon. 2018).

International Law  Diplomatic Relations
An embassy’s immunity from litigation is not dependent on the FSM’s issuance of a diplomatic note or effective only once the FSM has issued a diplomatic note, and not before; it is effective upon the establishment of the diplomatic mission.  Estate of Gallen v. Governor, 21 FSM R. 457, 462 (Pon. 2018).

Civil Procedure  Dismissal; International Law  Diplomatic Relations
When an embassy has, as permitted by statute, established its immunity by motion, it must be dismissed as a party.  No pleading defect, real or imagined, can alter that and produce a different result.  Estate of Gallen v. Governor, 21 FSM R. 457, 462 (Pon. 2018).

Civil Procedure  Dismissal; Costs  When Taxable; International Law  Diplomatic Relations
Since an embassy is immune from suit, a case against it will be dismissed.  Since the court cannot exercise jurisdiction over it, the embassy, as a prevailing party, is also entitled to its costs.  Estate of Gallen v. Governor, 21 FSM R. 457, 462 (Pon. 2018).

International Law  Diplomatic Relations
An embassy is immune from attachment or execution, and cannot be ejected from its premises.  Estate of Gallen v. Governor, 21 FSM R. 457, 462 (Pon. 2018).

International Law  Diplomatic Relations

Under the Vienna Convention, embassy land remains inviolable, and the host country or its agents cannot enter the embassy grounds without the consent of the head of the mission or the sending state.  Estate of Gallen v. Governor, 21 FSM R. 457, 462 n.2 (Pon. 2018).

Constitutional Law  Taking of Property; International Law  Diplomatic Relations; Remedies
When the plaintiffs’ basic claim is that the state defendants deprived them of their property (the land on which an embassy sits) without just compensation, they would have a viable remedy of monetary damages assessed against the Pohnpei state defendants if they prove that claim, but no remedy against the embassy since it is immune.  Estate of Gallen v. Governor, 21 FSM R. 457, 462 (Pon. 2018).

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	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This is before the court on the Motion to Dismiss, filed by the Embassy of the People’s Republic of China on October 13, 2017, and the Opposition to Motion to Dismiss Defendant PRC Embassy, filed by the plaintiffs on October 23, 2017.  The Embassy of the People’s Republic of China is dismissed as a party-defendant.  The court’s reasons follow.

	I.  The Chinese Embassy’s Motion to Dismiss

A.  Parties’ Positions

The Embassy of the People’s Republic of China moves to dismiss the case against it because it possesses complete diplomatic immunity from suit.  The Embassy supports its position with a July 27, 2017 diplomatic note from the FSM Department of Foreign Affairs.  In that note, the FSM affirms that the Chinese Embassy is an established diplomatic mission; that, under the Vienna Convention on Diplomatic Relations ("Vienna Convention"), the FSM has a duty to protect the Embassy’s premises; and that the Embassy’s premises is, in general, immune from search, requisition, attachment, or execution, and, in particular, immune from this litigation.

The plaintiffs assert that the Chinese Embassy’s diplomatic immunity cannot apply because this lawsuit was filed about five months before the FSM issued its July 27, 2017 diplomatic note, and, in their view, the diplomatic note is not effective retroactively.  They also assert that the diplomatic immunity contemplated by the Vienna Convention is not triggered because this suit does not involve the scope and activities of Chinese Embassy employees, but instead involves the Pohnpei defendants violating the Pohnpei Constitution by taking the plaintiffs’ land without just compensation and subsequently leasing it to the Chinese Embassy.  The plaintiffs further contend that the Vienna Convention is not self-executing; that the FSM national government, since it has no authority over lands in the FSM other than those lands it occupies, should not come to the aid of the Pohnpei government and the Chinese Embassy; that immunity should be granted only in extraordinary circumstances; that the immunity defense was not properly raised because, while the Chinese Embassy’s answer stated that it enjoyed a leasehold of the land from the Pohnpei government and that it had diplomatic immunity, it did not state that the diplomatic immunity was recognized by the FSM national government; and that the assertion of diplomatic immunity does not automatically confer diplomatic immunity from lawsuit.

B.  Vienna Convention on Diplomatic Relations of April 18, 1961

The court must, most emphatically, reject the plaintiffs’ contentions.  The court need not decide whether the Vienna Convention is self-executing,1 because the FSM has enacted legislation that gives the Vienna Convention positive effect.  FSM law provides that:

Unless otherwise provided by law, treaty, or the President pursuant to section 602 of this title, such missions, members of the mission, and their families and private servants, and diplomatic couriers assigned to the mission shall be afforded the privileges, immunities, protections, and exemptions specified in the Vienna Convention on Diplomatic Relations of April 18, 1961.

10 F.S.M.C. 601.  Thus, this FSM statute explicitly incorporates the Vienna Convention’s diplomatic immunity provisions into FSM law.  The Vienna Convention’s diplomatic immunity provisions apply in the FSM, regardless of whether the Vienna Convention is self-executing.

Section 602 provides that "[t]he President may, on the basis of reciprocity" determine and "specify privileges, immunities, protections, and exemptions which result in different treatment than that specified under the Vienna Convention."  There is no indication that any such reciprocal determination has been made concerning the Chinese Embassy.  Thus, the Vienna Convention’s diplomatic immunity provisions apply unaltered to the Chinese Embassy in the FSM.

FSM law further provides that:

Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding pursuant to this chapter, or under any other laws of the Federated States of Micronesia extending diplomatic privileges and immunities, shall be dismissed.  Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.

10 F.S.M.C. 603.  These statutory provisions all, either explicitly or implicitly, incorporate the Vienna Convention on Diplomatic Relations of April 18, 1961 into FSM law.  See FSM v. Ezra, 19 FSM R. 486, 490-91 (Pon. 2014).  Furthermore, the Vienna Convention embodies customary international law, including the "practice of states."  Ezra, 19 FSM R. at 492.

Thus, under international law, Vienna Convention on Diplomatic Relations art. 22(1) (Apr. 18, 1961), and FSM statute, the Chinese Embassy premises is inviolable, Ezra, 19 FSM R. at 491.  "The premises of the mission . . . shall be immune from search, requisition, attachment or execution."  Vienna Convention art. 22(3).  Attachment and execution are products of litigation.  Embassy premises, since they are held "on behalf of the sending State for the purposes of the mission," are thus immune from suit.  Vienna Convention art. 31(1)(a).

The Chinese Embassy is thus immune from this litigation.  This immunity is established by treaty (the Vienna Convention), by customary international law, and by FSM statutory law, 10 F.S.M.C. 601.  It is not dependent on the FSM’s issuance of a diplomatic note or effective only once the FSM has issued a diplomatic note, and not before; it is effective upon the establishment of the diplomatic mission.

C.  Dismissal of the Embassy of the People’s Republic of China

Having, as permitted by statute, established its immunity by motion, the Chinese Embassy must be dismissed as a party.  10 F.S.M.C. 603.  No pleading defect, real or imagined, can alter that and produce a different result.  Because the Chinese Embassy is immune from suit, the court cannot exercise jurisdiction over it.  As a prevailing party, the Chinese Embassy is also entitled to its costs.  FSM Civ. R. 54(d).

Dismissal of the Chinese Embassy as a party defendant does not mean that the plaintiffs are left without a potential remedy.  The Chinese Embassy is immune from attachment or execution, and cannot be ejected2 from its premises.  However, the plaintiffs’ basic claim is that the Pohnpei defendants deprived them of their property (the land on which the Chinese embassy sits) without just compensation.  If they prove that claim valid, they would have a viable remedy  monetary damages assessed against the Pohnpei state defendants.

	II.  Conclusion

Accordingly, the Embassy of the People’s Republic of China is dismissed as a party-defendant.  Its name will be deleted from all future case captions.  There being no just cause for delay, the clerk shall enter judgment in the Chinese Embassy’s favor.  FSM Civ. R. 54(b).

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