767 Third Ave. Associates v. Permanent Mission of Republic of Zaire to United Nations, 61

• Decision Date: 04 March 1993
• Docket Number: No. 61,D,61
• Citation: 988 F.2d 295
• Parties: 767 THIRD AVENUE ASSOCIATES and Sage Realty Corporation, Plaintiffs-Appellees, v. PERMANENT MISSION of The REPUBLIC OF ZAIRE to the UNITED NATIONS, Defendant-Appellant. ocket 92-7184.
• Court: U.S. Court of Appeals — Second Circuit

Page 295

988 F.2d 295

61 USLW 2539

767 THIRD AVENUE ASSOCIATES and Sage Realty Corporation, Plaintiffs-Appellees, v. PERMANENT MISSION of The REPUBLIC OF ZAIRE to the UNITED

NATIONS, Defendant-Appellant.

No. 61, Docket 92-7184.

United States Court of Appeals, Second Circuit.

Argued Sept. 4, 1992.

Decided March 4, 1993.

Jeffrey M. Rubin, New York City (Rubin & Shang, of counsel), for appellant.

Joseph Ferraro, New York City (Robert J. Ward, Jean-Marie L. Atamian, Shea & Gould, of counsel), for appellee.

M. Chinta Gaston, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., James L. Cott, Asst. U.S. Atty., S.D.N.Y., Edwin D. Williamson, Legal Adviser, Bruce Rashkow, Asst. Legal Adviser, Richard K. Lahne, Attorney Adviser--Dept. of State, of counsel), for U.S. as Amicus Curiae.

Before: FEINBERG, NEWMAN and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal emerges out of a landlord-tenant dispute. When the Zaire mission to the United Nations occupying leased space on the east side of midtown Manhattan repeatedly fell into arrears on its rent, it was sued by its landlord. The tenant's defense against being evicted was diplomatic immunity. A district court refused to credit this defense and instead granted summary judgment to the landlord for back rent and also awarded it possession of the premises, ordering United States Marshals to remove the Mission physically if it failed to vacate in a timely manner.

Enforcement of an owner's common law right to obtain possession of its premises upon the tenant's non-payment of rent may not override an established rule of international law. Nor under the guise of local concepts of fairness may a court upset international treaty provisions to which the United States is a party. The reason for this is not a blind adherence to a rule of law in an international treaty, uncaring of justice at home, but that by upsetting existing treaty relationships American diplomats abroad may well be denied lawful protection of their lives and property to which they would otherwise be entitled. That possibility weighs so heavily on the scales of justice that it militates against enforcement of the landlord's right to obtain possession of its property for rental arrears.

BACKGROUND

Plaintiffs, 767 Third Avenue Associates, are a partnership owning a building at 767 Third Avenue in Manhattan, and its managing agent, Sage Realty (collectively plaintiffs, landlord or Sage Realty). The defendant is the Permanent United Nations Mission of the Republic of Zaire (Mission, Zaire, tenant or appellant), a tenant in the building. The landlord-tenant relationship began on May 19, 1982 when Sage Realty and Zaire entered into a ten-year lease for all of the 25th floor at 767 Third Avenue. The building is conveniently located near the United Nations Headquarters in New York City. In 1987 a dispute arose when Zaire failed to make its rental payments. Sage Realty sued and obtained a default judgment in August 1989 terminating Zaire's lease. Under the judgment plaintiffs were awarded possession and $244,157.49 in damages. After Zaire paid the damage award, plaintiffs allowed it to continue in the premises on a month-to-month basis at a rental of $19,350 per month.

When in 1991 the Mission again defaulted in its rental payments, plaintiffs notified it on April 26 that they were terminating the mission's month-to-month tenancy. On July 22 the landlord sued Zaire in the Southern District seeking unpaid rent, attorneys' fees and possession. On November 14, 1991 the district court granted plaintiffs summary judgment, directed the Mission to vacate the premises, and awarded plaintiffs damages of $387,154.72 through October 31 and $832.19 for each day after November 1, 1991 that the Mission occupied the premises. In addition the district court directed the U.S. Marshal to remove the Mission if it refused to vacate the 767 Third Avenue space. Because the order did not specify the date by which Zaire was to vacate, the district court issued a supplemental order on January 15, 1992, identical to its earlier November 14, 1991 judgment, but now adding a direction for the U.S. Marshal to remove the Mission and its belongings from the premises physically if Zaire did not leave by January 31, 1992.

The Zairian Mission subsequently sought a stay of this order, and in a March 24, 1992 opinion the trial court granted a limited stay until April 20, 1992--in order to avoid a "hasty eviction" and to permit the Mission to protect the confidentiality of its papers--but refused a more extended stay pending appeal on the grounds that none of the treaties invoked by the Mission or the Foreign Sovereign Immunities Act of 1976 (Act), 28 U.S.C. §§ 1602-1611 (1988), provided support for appellant's position or demonstrated the likelihood of its success on the merits.

The parties have stipulated that enforcement of the district court's eviction order is stayed pending resolution of this appeal.

                Due to the United States State Department's intervention--including numerous meetings between U.S. officials, the United Nations Legal Counsel, and Zaire's Charge d'Affaires Lukabu Khabouji N'Zaji, and a March 13, 1992 ultimatum to the Mission that two Zairian officials and their families would be expelled from the United States if Zaire did not pay the damages due--Zaire paid its rental arrears in full by three checks sent to Sage Realty on April 9, 23, and 27, 1992.   Since that time, Zaire has again lagged in its payments because of the continuing financial crisis in that country.   Sage Realty insists that it wants the Mission evicted from its building, even though it appears the parties are continuing to negotiate a new lease
                

Zaire appeals from the district court's final judgment of January 15, 1992 granting the landlord summary judgment that awarded damages and directed its physical removal from its leased premises by U.S. Marshals. The United States has filed an amicus brief and appeared in support of the Mission.

DISCUSSION

I Inapplicability of Foreign Sovereign Immunities Act

The inviolability of a United Nations mission under international and U.S. law precludes the forcible eviction of the Mission. Applicable treaties, binding upon federal courts to the same extent as domestic statutes, see Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 260-61, 104 S.Ct. 1776, 1786-87, 80 L.Ed.2d 273 (1984); United States v. Palestine Liberation Org., 695 F.Supp. 1456, 1464 (S.D.N.Y.1988), establish that Zaire's Permanent Mission is inviolable. The district court erred in misinterpreting the applicable treaties and in carving out a judicial exception to the broad principle of mission inviolability incorporated in those agreements.

Although the United States' support for appellant is based solely on a number of relevant treaties, the district court rested its decision in part on an interpretation of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 (1988). That Act deserves brief discussion since the landlord continues to raise its provisions. While Sage Realty correctly asserts that Congress aimed to permit courts to make sovereign immunity determinations, see id. § 1602, plaintiffs give short shrift to the Act's explicit provision that it operates "[s]ubject to existing international agreements to which the United States is a party." Id. § 1609. Because of this provision the diplomatic and consular immunities of foreign states recognized under various treaties remain unaltered by the Act. See Mashayekhi v. Iran, 515 F.Supp. 41, 42 (D.D.C.1981) ("Under the FSIA ..., what were then 'existing international agreements' remain[ ] valid and superior to the FSIA wherever terms concerning immunity contained in the previous agreement conflict with the FSIA."); see also 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3662, at 393 (2d ed. 1985) (the FSIA was "not[ ] intended to alter either diplomatic or consular immunity"). Since international agreements entered into by the United States control the protections that must be accorded to and the obligations owed to the Mission by the United States, the Act does not govern our decision.

II International Agreements

A. Generally

The international agreements presented us and relied upon by the United States all pre-date the Foreign Sovereign Immunities Act. They include the United Nations Charter, 59 Stat. 1031 (1945), the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations, June 26-Nov. 21 1947, 61 Stat. 754, 756 [hereafter the U.N. Headquarters Agreement], the Convention on the Privileges and Immunities of the United Nations, adopted Feb. 13, 1946, 21 U.S.T. 1418 [hereafter the U.N. Convention on Privileges and Immunities], and the Vienna Convention on Diplomatic Relations, done Apr. 18, 1961, 23 U.S.T. 3227 [hereafter the Vienna Convention].

The first three of those treaties provide for various diplomatic protections and immunities without specific reference to mission premises. The U.N. Charter, for example, provides "[r]epresentatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." U.N. Charter, supra, Art. 105(2). The U.N. Headquarters Agreement states that representatives of member states "shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities ... as it accords to diplomatic envoys accredited to it." U.N. Headquarters Agreement, supra, Art. V(4). The Convention on Privileges and Immunities of the United Nations recites in somewhat more detail that representatives of member states shall "enjoy the following privileges and immunities: (a) immunity from personal arrest or detention ...; (b...