The Honorable Viktor K. Pohorelsky
United States Magistrate Judge
United States District Court
Eastern District of New York
In the Matter of the Extradition of Pavel Pavlovich Borodin
Dear Judge Pohorelsky:
This letter is submitted in response pursuant to the Court's request, communicated to the Department of State by the U.S. Department of Justice, for a written submission by the Department of State relating to specific issues that have arisen in connection with the above-referenced extradition request.
1. Inviolability of Diplomatic and Consular Premises
The premises of the Consulate General of the Russian Federation in New York are inviolable under two treaties to which the United States is a party: (i) the 1963 Vienna Convention on Consular Relations, 21 U.S.T. 77 (Vienna Consular Convention) (Article 31), and (ii) the 1964 Consular Convention and Protocol between the United States and the Soviet Union, 19 U.S.T. 5018 (Bilateral Consular Convention) (Article 17). The residence of the "head of the consular establishment, " that is, the Consul General, also enjoys inviolability under the Bilateral Consular Convention (Article 17). Accordingly, "[t]he police and other authorities of the receiving state [in this case, the United States] may not enter the building or that part of the building which is used for the purposes of the consular establishment or the residence of the head of the consular establishment with the consent of the head thereof, persons appointed by him, or the head of the diplomatic mission of the sending state." (what is this quoting?) Residences of Russian consular personnel in New York other than the Consul General are not inviolable.
Under the Bilateral Consular Convention, consular officers and employees and members of their family who are Russian nationals enjoy immunity from criminal jurisdiction in the United States (Article 19(2)). Consular officers and consular employees may not be compelled to appear in court as a witness or to give witness testimony (Bilateral Consular Convention Article 20(1)). Consular officers and consular employees enjoy immunity from civil and administrative jurisdiction in the United States "in matters relating to their official activity." (Bilateral Consular Convention Article 19(1); see also Vienna Consular Convention Article 43).
The criminal immunity of consular officers and employees "may be waived by the sending state. Waiver must always be express, " (Bilateral Consular Convention Article 19(3); see Vienna Consular Convention Article 45(2)) and "shall be communicated to the receiving State in writing" (Vienna Consular Convention Article 45(2)). The Government of Russia may agree to be bound by a court order and may express a waiver in writing of the criminal, civil, or testimonial immunity of its Consul General with respect to these proceedings. "Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state" (Consular Convention Article 28; Vienna Consular Convention Article 55(1)).
2. Nature of Obligation Undertaken by Ambassador Ushakov
In Mr. Borodin's Memorandum of Law dated February 26, 2001 supporting his application for bail, he cites the Restatement (Third) of Foreign Relations Law of the United States, sections 301 and 321, for the proposition that Ambassador Ushakov's representation to the Court that the Russian government "guarantees" Mr. Borodin's future appearances before the court is a binding obligation on the Government of Russia under international law. These provisions of the Restatement restate the international law principle that international agreements between nations are binding on the parties to them. However, in this case, there is no such international agreement and those sections of the Restatement (Third) of Foreign Relations Law of the United States do not appear relevant.
3. Mr. Borodin's Position and the Russian - Belarusian Union
As we understand it, the Russian-Belarusian Union rests on a "treaty of union" signed by then Russian President Boris Yeltsin and Belarusian President Aleksandr Lukashenko on December 8, 1999. Current Russian President Vladimir Putin signed the treaty on January 2, 2000. The union treaty was preceded agreements on integration between the Russian Federation and the Republic of Belarus that were signed in 1996 and 1997.
The treaty of union was intended to create a union parliament, state council, council of ministers, court and comptroller's office, while leaving its two members, the Russian Federation and the Republic of Belarus, as sovereign states. Under the 1999 treaty, the union of the two members has exclusive jurisdiction in most economic affairs, including foreign economic policy. The treaty also calls for a single currency. As things have developed so far, the activities of the union have been relatively limited. Only the council of ministers and state council have been formed. A date for elections to the union parliament has not been set. Russia and Belarus have yet to come to a final agreement on a single currency, despite several attempts. Neither joint customs duties nor policies on WTO accession have been set.
To our knowledge, the union's activities have continued following Mr. Borodin's arrest. On January 25, 2001, one week after Mr. Borodin's arrest, Igor Selivanov was appointed as Acting Secretary of the Union State for an indefinite period. Mr. Selivanov participated in his new position in the union council of ministers meeting that took place at the end of January.
In public statements in the past, the U.S. has questioned the legitimacy of the union. While the U.S. does not oppose integration among states, such integration must be voluntary. Because no democratic process existed at relevant times in Belarus, however, it is impossible to conclude that the decision by the leadership of Belarus to sign the union treaty with Russia reflects the will of the Belarusian people or that it is of a voluntary nature. Specifically, the "National Assembly", which ratified the 1999 treaty and earlier union agreements, was not elected, but appointed by President Lukashenko after he disbanded the legitimate Belarusian parliament, the 13th Supreme Soviet. The U.S. continues to recognize the 13th Supreme Soviet as the legitimate Belarusian Parliament. President Lukashenko's legal term in office ended on July 20, 1999, nearly five months before the signing of the 1999 union treaty.
Assistant Legal Adviser
Office of Diplomatic Law and Litigation
Department of State