Serving Process on Russia Through “Diplomatic Channels” Under the FSIA
June 24, 2025
A party suing a foreign state in federal or state court must comply with the Foreign Sovereign Immunities Act (FSIA). The FSIA governs not only when a foreign state is immune from suit and from execution, but also how a foreign state must be served with process. Section 1608(a) provides four possible methods of service on a foreign state. The last of these, permissible only if none of the other three is available, is service by the U.S. State Department “through diplomatic channels.”
In Yukos Capital Ltd. v. Russian Federation, the State Department served Russia by sending a diplomatic note to the Russian Embassy in Washington, D.C. Russia rejected service, arguing that it had to be delivered instead to Russia’s Foreign Ministry in Moscow and that using the Russian Embassy violated the Vienna Convention on Diplomatic Relations (VCDR). On June 11, 2025, Judge Carl J. Nichols (District of the District of Columbia), rejected Russia’s argument, holding that service through Russia’s embassy was effective.
Judge Nichols thought this was a “close question.” I don’t think it is close at all. I first encountered the question in 2024, when I was retained as an expert to address it in a different case, although the question became moot in that case when the State Department chose to retransmit the service to Russia’s Foreign Ministry. Because Judge Nichols’s analysis is brief, I thought it might be worth exploring this question at greater length.
Yukos’s Arbitral Award
The underlying facts of the case are largely irrelevant to the legal issue, so I will review them briefly. Yukos Capital Ltd. was a subsidiary of Yukos Oil, once one of the largest oil producers in Russia, which Russia seized in 2004 through an allegedly sham tax audit and bankruptcy proceeding. Yukos Capital had made loans of nearly $3 billion to Yukos Oil that were never repaid.
Having failed to recover in Russian courts for the unpaid loans, Yukos Capital brought a claim against Russia in arbitration under the Energy Charter Treaty. Russia participated in the arbitration, and in 2021 the tribunal awarded Yukos nearly $5 billion (the principal amounts plus interest on the loans). In 2022, Yukos filed an action to confirm the award in Federal District Court for the District of Columbia.
Russia argued that it was immune from suit under the FSIA, but Judge Nichols held that the FSIA’s arbitration exception, § 1605(a)(6), applied. Russia also argued that it was not properly served through “diplomatic channels” under § 1608(a)(4).
Service of Process on Foreign States
Section 1608 governs service of process under the FSIA. Subsection (a) covers service on foreign states and their political subdivisions, whereas subsection (b) sets forth different (and somewhat looser) rules for serving the agencies or instrumentalities of foreign states.
Because Russia is a foreign state, only the four methods of service provided in § 1608(a) were available: (1) service “in accordance with any special arrangement for service between the plaintiff and the foreign state”; (2) service “in accordance with an applicable international convention on service of judicial documents”; (3) service by mail “dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned”; and (4) service by the U.S. State Department “through diplomatic channels.” These methods are set forth in “hierarchical order,” which means that the first method must be attempted or must be unavailable before the second is tried, and so on.
In this case, the parties stipulated that Yukos would serve Russia using the fourth means, but it is worth noting briefly why the other three were not available. First, there was no special arrangement for service between the parties. Second, although both Russia and the United States are parties to the Hague Service Convention, Russia suspended all judicial cooperation with the United States in 2003, making this means unavailable. Third, Russia has objected under the Hague Convention to service by mail, making this means unavailable too (Yukos initially attempted service by mail, but Russian argued that its objection under the Convention precluded this method).
In most cases against foreign states under the FSIA, one of the first three means listed in § 1608(a) will be available, and the plaintiff will not have to call upon the State Department to transmit service through diplomatic channels. In this case, however, Yukos had no choice.
What Are Diplomatic Channels?
Russia argued principally that transmitting service through the Russian Embassy in Washington, D.C. violates Article 22(2) of the VDCR, which states that “[t]he premises of the mission shall be inviolable.” It also argued that transmitting service through its embassy violated customary international law, was discriminatory (since the United States often serves other countries through their foreign ministries), was ineffective because the head of mission had refused service, and violated a position the United States articulated in 1964 that establishing an embassy in another country does not make the embassy an agent for service of process.
Judge Nichols addressed almost none of these arguments. Instead, he got tied up in the impact of a State Department regulation, 22 C.F.R. § 93.1, implementing the diplomatic channels provision of the FSIA, which I discuss further below. He noted that “the regulation is not the FSIA; it instead governs the State Department’s internal processes, and thus whether the State Department followed the regulation does not mean service was improper under § 1608(a)(4).” He also reasoned that reading the regulation to limit diplomatic channels to a foreign state’s foreign ministry “would create surplusage” because § 1608(a)(3) already refers to foreign ministries. Finally, he cited several cases against Venezuela in which the State Department transmitted service through the embassy in Washington (although it appears that Venezuela never argued, as Russia did, that this was improper).
Judge Nichols’s analysis seems to have assumed that service through a foreign state’s U.S. embassy violates the State Department’s regulation. As I explain below, however, this is not true. Properly understood, 22 C.F.R. § 93.1, defines “diplomatic channels” to include a foreign state’s U.S. embassy. TLB advisor and contributor Paul Stephan made this point in ¶ 145 of his declaration in support of Yukos.
A Closer Look
In the reminder of this post, I take a closer look at whether § 1608(a)(4)’s reference to “diplomatic channels” permits the State Department to transmit service of process to foreign states through their U.S. embassies. Although I benefited from reading Paul’s analysis of the question, what follows are my own views.
The FSIA’s Text
The text of § 1608(a)(4) says that if service cannot be made under (a)(1)-(3), the clerk of the court may send copies of the service to the State Department, which shall in turn “transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted” (emphasis added). Nothing in the text limits “diplomatic channels” to a foreign state’s foreign ministry. This stands in contrast to the preceding subsection, (a)(3), which requires that service by mail “be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned” (emphasis added).
In Republic of Sudan v. Harrison (2019), the Supreme Court held that service by mail under (a)(3) must be sent directly to a foreign state’s foreign ministry, rather than to its U.S. embassy. But the language of (a)(4) is different. Congress’s decision not to refer specifically to “the ministry of foreign affairs” in (a)(4), strongly suggests that “diplomatic channels” is not limited to communications directly with foreign ministries.
This interpretation is consistent with the FSIA’s legislative history. The House Report expressly stated (on page 24) that “[u]se of diplomatic channels could also include transmittal of the papers by the Department of State to the foreign state’s embassy in Washington, D.C.”
The State Department’s Regulation
The State Department has a regulation governing the performance of its duties under § 1608(a)(4). That regulation, 22 C.F.R. § 93.1, provides in relevant part that the State Department’s Managing Director for Overseas Citizen Service shall deliver the documents:
(1) To the Embassy of the United States in the foreign state concerned, and the Embassy shall promptly deliver them to the foreign ministry or other appropriate authority of the foreign state, or
(2) If the foreign state so requests or if otherwise appropriate, to the embassy of the foreign state in the District of Columbia, or
(3) If paragraphs (c)(1) and (2) of this section are unavailable, through an existing diplomatic channel, such as to the embassy of another country authorized to represent the interests of the foreign state concerned in the United States.
This provision makes clear that “diplomatic channels” are not limited to foreign ministries and can also include embassies in the District of Columbia and even the embassies of other countries authorized to represent the interests of a foreign state. True, delivery to a foreign ministry appears to be the principal channel for transmittal of service. But a foreign state’s embassy may be used “[i]f the foreign state so requests or if otherwise appropriate” (emphasis added). The appropriateness of transmitting service through a foreign state’s embassy seems quintessentially a question for the State Department, which a federal court should not second guess.
The Vienna Convention on Diplomatic Relations
Russia argued that using its U.S. embassy was not appropriate because it violated Article 22 of the VCDR, stating that “[t]he premises of the mission shall be inviolable.” Under the venerable Charming Betsy canon, federal statutes should be interpreted, if possible, not to violate international law. And in Harrison, the U.S. amicus brief told the Supreme Court that “[t]he Executive Branch has long interpreted Article 22 and the customary international law it codifies to preclude a litigant from serving a foreign state with process by mail or personal delivery to the state’s embassy.”
But the Executive Branch has not interpreted Article 22 to preclude using a foreign state’s U.S. embassy to transmit service through diplomatic channels. Indeed, the State Department seems to view such use as perfectly permissible, as reflected in 22 C.F.R. § 93.1 and in the State Departments use of Russia’s embassy in this case.
The distinction makes sense. It is not the function of a diplomatic mission to serve as an agent for service of process by private parties. But, as reflected in Article 3 of the VCDR, it is the function of a diplomatic mission to “[r]epresent[] the sending State in the receiving State.” Transmitting messages through diplomatic channels is part of that function, and it should make no difference whether the message expresses displeasure over a foreign state’s policies or transmits service of process.
Russia claimed that, in any event, the United States discriminated against it in violation of VCDR article 47(1). But it is not discrimination to treat different foreign states differently based on different circumstances. In Russia’s case, I suspect that limitations on U.S. personnel working at the U.S. embassy in Moscow may have been the reason that the State Department decided to send its diplomatic note to Russia’s embassy in Washington.
The Hague Service Convention
Nor does using Russia’s embassy in the United States to transmit service through diplomatic channels violate the Hague Service Convention. First, the Convention applies only when “there is occasion to transmit a judicial or extrajudicial document for service abroad.” In Volkswagenwerk AG v. Schlunk (1988), the U.S. Supreme Court held that the Convention does not apply when service is completed within the United States, even if the documents are subsequently sent abroad. Russia’s U.S. embassy is located in Washington, D.C., and § 1608(c) states that service through diplomatic channels is deemed to have been made as of the date of transmittal. It appears, therefore, that the Hague Service Convention does not apply in this situation.
Even if the Convention were applicable, Russia’s declarations under the Convention do not prohibit service on the Russian Federation through its embassies. Specifically, paragraph 4 states:
It is highly desirable that documents intended for service upon the Russian Federation, the President of the Russian Federation, the Government of the Russian Federation, the Ministry of Foreign Affairs of the Russian Federation are transmitted through diplomatic channels, i.e. by Notes Verbales of diplomatic missions of foreign States accredited in the Russian Federation. (Emphasis added.)
“Highly desirable” is not the same as required. Other provisions of Russia’s declarations state that certain means of service are “not permitted.” But Russia did not say the same about transmitting service through its embassies.
Customary International Law
Russia also argued that using its U.S. embassy to transmit service violated customary international law, citing Article 22 of the U.N. Convention on the Jurisdictional Immunities of States and Their Properties, which refers to “transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned” (emphasis added). Although the United States has not ratified the U.N. Convention—and, indeed, the Convention has not even entered into force—Russia maintained that this provision reflects customary international law that is binding on the United States.
Certainly, some of the U.N. Convention’s provisions codify existing customary international law. But not all of them do, as reflected in the preambular statement that the Convention will “contribute to the codification and development of international law” (emphasis added). Even if one could show widespread practice limiting transmission of service through diplomatic channels to foreign ministries, one would have to show that such practice was followed from a sense of legal obligation (opinio juris) in order to establish a rule of customary international law.
Russia’s Rejection of Service
Russia contended that its return of the service rendered it ineffective, quoting VCDR article 22’s statement that “[t]he agents of the receiving State may not enter [an embassy], except with the consent of the head of the mission.” This is a non-sequitur. Transmission through diplomatic channels does not require entering the Russian embassy.
As a matter of U.S. law, Russia’s refusal to accept service makes no difference. As noted above, § 1608(c) states that service is effective under (a)(4) “as of the date of transmittal indicated in the certified copy of the diplomatic note.” The House Report is even clearer. “‘Transmittal’ of the notice of suit, summons and complaint does not require that the foreign state formally accept these papers” the Report states at page 24. “It only requires that these papers be transmitted in such a way that the foreign state has actual notice of the suit.”
The Meeker Letter
Finally, Russia relied on statement by State Department Acting Legal Adviser Leonard Meeker in 1964 in response to a query from the Justice Department:
The establishment by one country of a diplomatic mission in the territory of another does not implicitly or explicitly empower that mission to act as agent of the sending state for the purpose of accepting service of process. The Department of State, as in the case of any other foreign office, may not impute such authority to the diplomatic mission of the sending state.
This may well have been the position of the United States in 1964. But it has since been superseded by the FSIA, by the State Department’s regulation defining “diplomatic channels” for purposes of § 1608(a)(4), and by the State Department’s practice of using the U.S. embassies of foreign states to transmit service through diplomatic channels.
Conclusion
When a foreign state is sued under the FSIA, and other listed methods of service are not available, Section 1608(a)(4) authorizes the State Department to transmit service of process “through diplomatic channels.” The State Department may choose to send the papers through the U.S. embassy to the foreign state’s foreign ministry. Or it may choose to send the papers through the foreign state’s embassy in Washington. The latter option violates neither the VCDR nor customary international law.
This is not to say that the State Department should routinely use foreign embassies in the United States to transmit service through diplomatic channels. Doing so may lead to lengthy and expensive litigation, as this case shows. It would certainly have saved these parties time and money if the Department had sent the papers directly to Russia’s foreign ministry. That is not, however, something the State Department is required to do.