By Kurt Taylor Gaubatz

As of 1948, the United States and the Soviet Union had signed no formal consular treaty. Thus their consular relations were based on informal reciprocity and on customary international law. The ambiguities surrounding the customary law in this area became apparent in the case of a certain Mrs. Oksana Stepanova Kasenkina.

Mrs. Kasenkina was a Russian national brought to the United States by the Soviet Union to teach the children of the Russian U.N. delegation in New York. The School was closed in July, 1948. Mrs. Kasenkina, however, decided she did not want to return to the Soviet Union. She escaped to a camp near Nyack, New York run by anti-Communist Russian expatriates. The Soviet Consul General in New York, a Mr. Lomakin, took her from the camp and returned her to the Consulate General in New York City. Here the facts are a little murky. The Soviets claim she was kidnapped by the Russian ex-patriates, while the press widely reported it the other way around. For six days the Soviets refused to allow the police or other officials interview her at the Consulate. Finally, a writ of habeus corpus calling upon Lomakin to produce Mrs. Kasenkina in open court at 10 a.m. on August 12 was issued by Justice Dickstein of the New York Supreme Court. The writ was served on Consul General Lomakin on August 11 as he tried to rush from his car into the Consulate General.

Early on the morning of August 12, the Legal Adviser of the Department of State, Ernest Gross, sent a telegraph informing the Governor of New York that "the Soviet Embassy had presented a note to the Department protesting the service of the writ upon the consul General, alleging immunity of the consul, and requesting the Department to direct an appropriate communication to the Supreme Court of the State of New York ... [Therefore] the Department respectfully suggests that as an appropriate interim measure Justice Dickstein take the case under advisement." This would give the State Department "an opportunity to consider after receipt of official information ... [the] complex questions of serious legal and policy nature" in this issue. Justice Dickstein then announced that he would withhold a decision "because of the international complications involved."

Mr. Lomakin did not show up in court that morning with Mrs. Kasenkina. At around 4 p.m. that afternoon she jumped from a third floor window of the Consulate General. She landed in a courtyard of the consulate and sustained serious injuries. Despite the fact that the courtyard was entirely within the property of the Consulate, several spectators and police officers rushed in to aid Mrs. Kasenkina. She was taken to the hospital by ambulance. The next morning she told police that she had been kept a prisoner in the consulate.

On August 14 the Soviet Ambassador sent the following note to the Department of State:

"On August 12, 1948 at 4:20 p.m., two New York City policemen, taking advantage of the fact that employees of the Consulate General had opened the door to the courtyard of the building occupied by the consulate General where O.S. Kasenkina had jumped from a window, arbitrarily burst into the building of the consulate general. At 4:30 p.m. four inspectors of the New York police headed by the Deputy Chief inspector of Police, Conrad Rothingast, came to the Consulate General to learn from the consul General, Y.M. Lomakin, the circumstances of Kasenkina's suicide attempt. However, instead of dealing with the Consul General the police inspectors, in spite of his protest, seized one of Kasenkina's personal letters which was in her personal bag. The aforesaid persons attempted to search Kasenkina's room and to question employees of the Consulate General.

By such acts the representatives of the New York police authorities violated the extraterritoriality of the building of the consulate General of the U.S.S.R. in New York, the need for the observance of which is derived from international custom and from the norms of international law.

In connection with the foregoing, the Embassy of the U.S.S.R. in the U.S.A. manifest to the department of State a protest against the violation of the extraterritoriality of the building of the Consulate General of the U.S.S.R. in New York by representative s of the authorities of the U.S.A., and insists that the persons guilty of such violation be brought to account. The embassy of the U.S.S.R. in the U.S.A., also insists that the persons who permitted the other illegal acts indicated above be brought to account. The Embassy of the U.S.S.R. in the U.S.A. hopes that the Department of State will take measures that in the future will protect the Consulate General from illegal acts on the part of New York city police authorities, and that the Department will assure the extraterritoriality of the building of the consulate General of the U.S.S.R. of New York."

This request was immediately rejected by the U.S. Legal Adviser Gross then wrote to Justice Dickstein:

"It is the view of the United Sates government that there is no basis under international law or under any law of the United States for considering that Mrs. Kasenkina is in any manner subject to the control or authority of the soviet government so long as she remains in this country. The department of State already has advised the Soviet embassy that Mrs. Kasenkina will not be placed under control of any person against her own will. The Department has also advised the soviet Embassy that although it recognizes the right of the Soviet Government, through its officials abroad to extend all proper assistance and protection to Soviet nationals, this right does not include authority to take charge of Soviet citizens in this country irrespective of their wishes."

On August 19 the State Department sent a note to the Soviet Ambassador responding to the Soviet complaints:

"In these communications and in the representations which the Ambassador has made to the Under Secretary of State, as well as in statements which have been made to the press by the Ambassador and Mr. Jacob Lomakin, the soviet Consul General in New York City, charges of the most serious nature are made not only against individuals in this country, but also against the Government of the United States and state and federal officials. The reports of the investigations being made by the competent United States authorities which have been received by the Department of State not only clearly demonstrate that these charges are unsubstantiated, but also indicate that officials of the soviet government have been engaged in conduct which is highly Improper. The United States government must categorically reject the charges and insinuations contained in these notes which have been found to be at complete variance with the facts....

From the foregoing it appears that the representations of the Soviet government in regard to these cases have been based upon misinformation. In this connection the reports submitted to the Department of State show that the Soviet consul General in New York, Mr. Y.M. Lomakin, after having made statements which were the basis of the serious charges against this Government and its officials, hindered the investigation of the competent police officials by refusing to allow them to interview Mrs. Kasenkina. This action was the more serious in view of the subsequent statements by Mrs. Kasenkina to the effect that she jumped from the window of the Consulate General in order to avoid having to return to the Soviet Union. In addition to the statement made by Mrs. Kasenkina that she was compelled to make in a press interview false statements which had been dictated to her, the Consul General has himself made or issued statements to the press which, in view of all the evidence available, the Department of State can only conclude were deliberately designed to mislead the American public in regard to a serious charge involving the United States Government. The United States Government considers that Consul General Lomakin's conduct constitutes an abuse of the prerogatives of his position and a gross violation of the internationally accepted standards governing the conduct of foreign officials.

The Department of State is therefore requesting the President to revoke the exaquatur issued to Consul General Lomakin, and it is requested that he leave the United States within a reasonable time."

On August 23, Justice Dickstein issued a ruling:

"While this court is satisfied that the Soviet consul General was not entitled to diplomatic immunity so as to permit him to ignore the mandate of this court, issuance of a warrant of attachment to enforce the writ would now serve no useful purpose. The matter has become academic, in view of Mrs. Kasenkina's presence in a hospital, outside the control of the Soviet Consul. There being no objection from the petitioner, the writ is therefore dismissed."

The Soviet Government rejected the accusations against Lomakin as "utterly unfounded and not corresponding with the facts." They further insisted that "the representatives of the Soviet Union be granted the possibility of free and unobstructed access to Kasenkina". In light of this interpretation of events the Soviet note went on to outline the reaction of the Soviet Union to these events:

"The actions of U.S.S.R. Consul General in new York Lomakin were aimed exclusively at protecting the rights of Soviet citizens and his statement to press representatives with a view to restoring the truth, which is being rudely distorted in inspired reports in certain American press organs, fully conform to internationally accepted standards and constitute a direct duty of consular representatives.

Considering all the above circumstances, the Soviet Government states that a situation has recently been created in the United States of America in which the normal execution of their functions by Soviet consulates in the United States becomes impossible. It will be seen from the State Department's note of August 19 that the United States Government not only does not intend to put an end to those actions of the American administrative authorities which are creating such a situation -- to the extent of the American police invading the premises of the Soviet consulate in new York as was the case August 12 -- but on the contrary justified such a manifest violation of the rules accepted in international practice.

In view of the above circumstances the Soviet Government has decided:

(A) Immediately to close both Soviet consulates in the United States, in New York and in San Francisco.

(B) to consider the United States consulate in Vladivostok subject to immediate closing in accordance with the principle of reciprocity. To regard on the same grounds, as having lost its validity the understanding previously reached between the U.S.S.R. Government and the United States Government regarding the opening of a United States consulate in Leningrad."

The United States subsequently sent a note to the Soviet Embassy stating:

"The Department of State ... notes that the Soviet Government again 'insists that opportunity for free and unobstructed access to Kasenkina ... be granted to the representative of the Soviet Union in the U.S.A.' The Department in its note of August 19, 1948 stated that [she is] completely free to see any Soviet official if [she] desired, but that this Government could not compel [her] to do so. The Soviet Government must therefore have realized that compliance with this request would be incompatible with the principles of law on which the United States Government was founded and to which it adheres. The persons of individuals in the United States are not liable to restraint or compulsion except in accordance with duly enacted statutes and subject to constitutional safeguards. It is a matter exclusively for the determination of Mrs. Kasenkina ... whether [she} will see the representatives of the Soviet Government.

Mrs. Kasenkina has stated to Soviet Vice Consul Chepurnyk in the presence of witnesses that she does not wish to see him or any other Soviet representative. Mrs. Kasenkina has been under no restrictions of any kind other than those normally required by medical practice for patients suffering from injuries such as she has sustained. It is understood that she is rapidly regaining her health. Upon her recovery and departure from the hospital, Mrs. Kasenkina will continue to be free to see whomsoever she wishes, and of course she will enjoy complete freedom of movement. ... In these circumstances, the United States Government must consider the matter closed.

The Department of State has taken note of the intention of the Soviet Government to close its Consulates General at New York and San Francisco, and its decision, in conformity with the principle of reciprocity, to consider the United States Consulate General at Vladivostok subject to immediate closing, and to withdraw the permission for the opening of a United States Consulate General at Leningrad."

For the next twenty years, there were no Soviet consulates in the United States nor any American consulates in the Soviet Union. Consular relations were restored in 1968 with the entry into force of a new Consular Convention between the United States and the Soviet Union. Article 17 of the new Consular Convention holds:

"The buildings or parts of buildings and the land ancillary thereto, used for the purposes of the consular establishment and the residence of the head of the consular establishment, shall be inviolable.

The police and other authorities of the receiving state 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 without the consent of the head thereof, persons appointed by him, or the head of the diplomatic mission of the sending state."