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Diplomatic Privileges and Immunities: A New Regime is Soon to be Adopted by The United States

Published online by Cambridge University Press:  28 March 2017

Leo J. Harris
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Extract

As soon as the House of Representatives considers and passes the Diplomatic Relations Act of 1967, and the President signs the new Act into law, the United States will proceed to deposit its ratification of the 1961 Vienna Convention on Diplomatic Relations. These two documents will make rather extensive changes in United States law and practice with respect to diplomatic privileges and immunities. It will be the purpose of this article to give a capsule summary of the manner in which the Diplomatic Relations Act may be anticipated to operate in the future, and to indicate the pertinent areas in which the previous United States law and practice will be affected thereby.

Type
Research Article
Information
American Journal of International Law , Volume 62 , Issue 1 , January 1968 , pp. 98 - 113
Copyright
Copyright © American Society of International Law 1968 

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Footnotes

*

The author is a member of the Minnesota and Distriet of Columbia Bars. He formerly was with the Office of the Legal Adviser, Department of State

References

1 S. 1577, 90th Cong., 1st Sess. It is anticipated that a Subcommittee of the House Foreign Affairs Committee, to be headed by Representative Wayne Hays, will begin hearings on the bill in early 1968.

2 Sen. Exec. H, 88th Cong., reprinted in 55 A.J.I.L. 1064 (1961). The Senate gave its advice and consent to ratification of the Vienna Convention on Diplomatic Relations on Sept. 14, 1965 (111 Cong. Rec. 23773).

3 An earlier article carefully described the Vienna Convention itself. See Ernest J. Kerley, “Some Aspects of the Vienna Conference on Diplomatic Intercourse and Immunities,“ 56 A.J.I.L. 88 (1962). Except as pertinent to the subject of this article, the content of the Convention will not be further considered here.

4 Hearings before the Committee on Foreign Eolations, U. S. Senate, 90th Cong., 1st Sess., on S. 1577, to Complement the Vienna Convention on Diplomatic Relations, p. 6 (May 9, 1967). Hereafter cited as “Hearings.“

5 Ibid, at 5. The requirement of reciprocity did not appear in the Administration submittal of S. 1577, but was made the subject of a Senate amendment thereto. See S. Rep. 346, 90th Cong., 1st Sess. 6 (1967).

6 Arts. 23 and 1 (i).

7 Statutory exemption from such real property taxation exists only in the District of Columbia. See 47 D.C. Code 801a(c) and 803 (1964). 45 D.C. Code 722 (3) (1964) provides a similar exemption with respect to the District's recordation tax.

8 Art. 34.

9 Many States do provide exemption from automobile registration fees or sales or use taxes to foreign diplomatic or consular officers, based upon comity or reciprocity. See, e.g., 7 Code of Virginia Sec. 46:1-50 (1958).

10 Art. 34 (c).

11 See the State Department's article-by-article commentary to the Vienna Convention, Hearings before the Subcommittee of the Committee on Foreign Eolations, U. S. Senate, 89th Cong., 1st Sess., on Exec. H, 88th Cong., 1st Sess., 41, 55 (July 6, 1965).

12 Art. 33 (3).

13 Their present statutory exemption from taxation (26 U.S.C. 893(a) (1964)), is limited to income received as compensation by them from the foreign government concerned for official services. Apparently the real explanation for non-payment was the inability of the Internal Revenue Service to enforce the Internal Eevenue Code against persons entitled to diplomatic immunity.

14 Art. 34 (d) excludes from the exemption dues and taxes on private income having its source in the receiving state; Art. 31 (l)(c) would appear to sanction enforcement of revenue laws to the extent the exaction relates to commercial activity of the diplomat outside of his official functions.

15 Sees. 4063-4066 of the Revised Statutes, 22 U.S.C. 252-254 (1964), were derived from the Act of April 30, 1790, 1 Stat. 117, which in turn was based upon the British statute of 7 Ann, c. 12 (1708).

16 Perhaps it is the universal abuse of this immunity which prompted the “Vienna Conference to strip full immunity from private servants. See the discussion of private servants, at p. Ill below.

17 Hearings, op. cit. note 4 above, at 30.

18 Ibid, at 7. The words of Sec. 4 (a) (2) are broader than indicated in Mr. Meeker's statement, however. The more favourable treatment regarding exemption from Federal taxes is made available to all persons encompassed by the definition in the Act of “foreign diplomatic missions and the personnel thereof.” Sec. 4 (a) of the Act provides: “The President is authorized, upon a basis of reciprocity and under such terms and conditions as he may from time to time determine— (1) to apply the treatment prescribed by the Vienna Convention on Diplomatic Eelations, or any part or parts thereof, to those foreign diplomatic missions and the personnel thereof not otherwise entitled to such treatment; (2) to extend more favourable treatment than is provided in the Vienna Convention on Diplomatic Relations to foreign diplomatic missions and the personnel thereof with respect to— (A) exemption from Federal taxes; and (B) immunity from civil and criminal jurisdiction of the United States or of any State, territory, or possession thereof for those persons defined in the Vienna Convention on Diplomatic Relations as the members of the administrative and technical staff and the service staff of the mission.“

19 See. 6 of the Act contains the standard delegation of authority clause. It provides: “The President may exercise any functions conferred upon him by this Act through such agency or officer of the United States Government as he shall direct. The head of any such agency or such officer may from time to time promulgate such rules and regulations as may be necessary to carry out such functions, and may delegate authority to perform any such functions, including, if he shall so specify, the authority successively to redelegate any of such functions to any of his subordinates.“

20 Hearings, op. tit. at 7. The pertinent U. S. Internal Revenue Ruling is No. 296 of Dee. 21, 1953, as amended, 1953-2 Cum. Bull. 325. This ruling exempts diplomatic officers and certain diplomatic employees from (1) the payment of Federal excise taxes, the legal incidence of which would otherwise fall upon them; and (2), if these diplomatic personnel purchase from the manufacturer or retailer subject to a Federal excise tax whose burden is upon such persons, the transaction also will not be taxed.

21 25 heads of state and government visited the IT. S. in 1955; 21 in 1956; 14 in 1957; 18 in 1958; 21 in 1959; 29 in I960; 41 in 1961; 37 in 1962; and 48 in fiscal year 1963, the last period for which figures are available. Providing Authority for Protecting Heads of Foreign States: Hearing before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives, 88th Cong. 3 (March 12, 1964). In addition, numerous foreign ministers visit Washington annually, or go to New York for General Assembly meetings.

22 Sec. 3 of the Act provides as follows: “As used in this Act, the phrase ‘foreign diplomatic mission and the personnel thereof includes— (a) any permanent or special diplomatic mission of a sending state accredited to the United States, including special envoys, and the members of the staff of the mission, the members of the families of such members of the staff, the private servants of the members of the mission, and diplomatic couriers. (b) the head of a foreign state or the head of the government of a foreign state, and, when they are on an official visit to or in transit through the United States the foreign minister of a foreign government, and those members of the official party accompanying such officials.“ The Department of State took a very restrictive view towards the coverage of the term “members of the official party” in its written views provided to supplement the Senate hearings. It explained: “ (t)his term is intended to encompass only those officials accompanying the head of a foreign State or Government, or foreign minister, as are considered to have representational capacity. The Department of State would define representative capacity as meaning officials of a diplomatic rank, not persons merely attending to the dignitary in the capacity of bodyguards, cooks, chauffeurs, and the like. We would not provide Vienna Convention treatment to the latter group.“ Hearings, op. cit. at 31. The bona fides of this statement was brought into question on the Senate floor by Senators Bussell and Thurmond, when they sought to have the passage of S. 1577 reconsidered. 113 Cong. Eec. No. 109 (daily ed. July 17, 1967), S. 9787 et seq.

23 S. Rep. 346, op. cit. note 5 above, at 4.

24 Letter of the Secretary of State to the Vice President, April 6, 1967, 113 Cong. Bee. No. 59 (daily ed. April 19, 1967), S. 5471.

25 Restatement (Second), Foreign Relations, Sec. 66, and Reporters’ Note No. 1 at 200, 202.

26 Ibid., Sec. 65 at 197.

27 Chong Boon Kim v. Kim Tong Shik and David Kim (1963), 58 A.J.LL. 186 (1964).

28 In the Circuit Court of the First Circuit, State of Hawaii, Civil No. 12565, Suggestion of Interest submitted on behalf of the United States, 1, 2.

29 Letter from the Acting Legal Adviser (Kearney) to the Assistant Attorney General (Douglas), dated Aug. 30, 1965, Department of State manuscript file PS 10 S. Kor-U. S.

30 While the author has sought in vain to track down the reference, it is recalled that Sir Winston Churchill visited New York City during his last term as Prime Minister. During this visit, a process server sought him out with respect to a suit believed to be directed against the British Government-owned Cunard Line. Churchill is reputed to have successfully dodged the server but, in the process, to have orally agreed with the view he would be subject to such service of process.

31 Sec. 5 (b) of the Act provides: “Whoever knowingly obtains, prosecutes, or assists in the execution of such writ or process shall be fined not more than $5,000 or imprisoned not more than one year, or both: Provided, That this paragraph shall not apply unless the name of the person against whom the writ or process is issued has, before the issuance of such writ or process, been published in the Federal Register.“

32 See, inter alia, Ch. Ill , Special Missions, I.L.C. Report on its 17th Seas., May 3- July 9, 1965, General Assembly, 20th Sess., Official Records, Supp. No. 9 (A/6009), pp. 11-39 (60 A.J.I.L. 173-237 (1966)), and earlier reports cited therein.

33 Act of July 10, 1952, 66 Stat. 516, 22 TJ.S.C. 288g (1964).

34 Joint Resolution of Aug. 4, 1947, c. 482, 61 Stat. 756, 22 TJ.S.C. 287 ff. (1964); 43 A.J.I.L. Supp. 13 (1949). During debate, Senator Russell said he believed S. 1577 would increase the number of TJ.N. personnel entitled to diplomatic immunity. In reply, Senator Sparkman inserted into the record a statement clearly showing that the bill affects only delegation personnel, not secretariat personnel. 113 Cong. Rec. No. 109 (daily ed., July 17, 1967), at S. 9788.

35 Signed Sept. 30, 1951, T.I.A.S., No. 2992; 48 A.J.I.L. Supp. 153 (1954). It is only under this Agreement that the lesser Vienna Convention privileges and immunities for administrative and technical staff and service staff employees will likewise become applicable to NATO employees of a comparable rank. Administrative and technical staff and service staff employees of United Nations and O.A.S. delegations are only entitled to the privileges and immunities of the International Organizations Immunities Act, P.L. 291, 79th Cong.; 40 A.J.I.L. Supp. 85 (1946).

36 Inside cover of the February, 1967, Diplomatic List.

37 Sec. 4 (c) provides as follows: “The President shall from time to time publish in the Federal Register of the United States a list of the permanent foreign diplomatic missions and the personnel thereof entitled to diplomatic privileges and immunities pursuant to the “Vienna Convention on Diplomatic Relations or this Act.“

38 Sec. 7 of the Federal Register Act (49 Stat. 502, 44 TJ.S.C. 307 (1964)) gives such an effect to all matters published in the Federal Register.

39 4 Hackworth, Digest of International Law 452 (1942).

40 Circular Diplomatic Note of Aug. 5, 1960, Department of State Manuscript File 601.0011/8-560.

41 The fact that an American citizen employee of a foreign diplomatic mission was not notified to the State Department and accepted by it through registration on the White List, was perhaps the rationale for the earlier Maryland Court of Appeals decision that he was not entitled to immunity in a criminal prosecution. Haley v. State, 88 At. 2d 312 (1952); 47 A.J.I.L. 151 (1953).

42 Circular diplomatic note, cited note 40 above, at 2.

43 S. Rep. 346, note 5 above, at 4. Sec. 4 (a) of the Act is reprinted at note 18 above.

44 Hearings, op. cit. at 18.

45 In Re Baiz, 135 V. 8. 403 (1890); Arcaya v. Paez, 145 F. Supp. 467 (S.D.N.Y. 1956), 51 A.J.I.L. 420 (1957); aff'd per curiam, 244 F.2d 958 (C.A.2, 1957).

46 Carrera v. Carrera, 174 F. 2d 496, 498 (D.C. Cir., 1948); 44 A.JLL. 184 (1950).

47 This subsection provides: “The determination of the President as to the entitlement of a foreign diplomatic mission and the personnel thereof to diplomatic privileges and immunities under the Vienna Convention on Diplomatic Relations or under this Act, shall be conclusive and binding on all Federal, State, and local authorities.“

48 It is anticipated that, as before, this official will be delegated authority under the Diplomatic Relations Act to make such certifications.

49 S. Rep. 346, op. cit. at 5.

50 Art. 31 (1) provides as follows: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir, or legatee as a private person and not on behalf of the sending state; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.“

51 Act of Dec. 23, 1963, 77 Stat. 513, 13 D.C. Code 302 (1964).

52 Hellenic Lines v. Moore, 345 F.2d 978, 120 U. S. App. D.C. 288 (D.C. Cir., 1965); 59 A.J.I.L. 927 (1965).

53 Criminal case docket No. C-971-63, TJ. 8. District Court for the District of Columbia, 1963.

54 The Peruvian Representative is equated by 22 U.S.C. 288g to the status of a diplomatic envoy accredited to the United States.

55 Cited note 53 above.

56 Crim. No. US 10150-65, D.C. Court of General Sessions (1965).

57 Ibid.

58 Ibid

59 October Term, 1966, No. 614, Misc.

60 28 U.S.C. 1251(a) provides that the Supreme Court shall have original and exclusive jurisdiction over all actions or proceedings against ambassadors or other public ministers of foreign states or their domestics or domestic servants.

61 385 U. 8. 916 (1966).

62 Sec. 7 (c) of the Diplomatic Relations Act will preserve rights existing under 22 U.8.C. 252 before its repeal. This subsection provides as follows: “The repeal of the several statutes or parts of statutes accomplished by this Act shall not affect any act done or right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before such repeal, but all rights and liabilities under the statutes or parts thereof so repealed shall continue, and may be enforced in the same manner as if such repeal had not been made, subject only to the applicable immunities heretofore flowing from customary international law and practice.“ It is understood, although it is not possible to verify at this writing, that Euiz in early 1967 was named as defendant in an automobile negligence suit begun in the District of Columbia.