Entitlement

Privileges and Immunities

In a diplomatic note dated February 10, 1977, the Department of State notified an embassy of a diplomatic mission accredited to the United States that the embassy's request to have a named individual accorded diplomatic status had been denied on the following grounds:

[I]nasmuch as [the named individual] is employed on a full-time basis as Alternate Executive Director of the International Monetary Fund, he does not qualify for diplomatic status. Criteria established for diplomatic accreditation include the requirement that a diplomatic officer must devote his official activities full-time to diplomatic duties. Although the Vienna Convention on Diplomatic Relations (Art. 5, par. 3) provides that a member of the diplomatic staff of the mission may act as representative to any international organization, the Department of State requires that, in such circumstances, the diplomatic agent must be principally engaged in diplomatic duties.

Dept. of State File No. P77 0022-136.

In the spring of 1976, the Department of State prepared answers to seven questions posed by the U.S. Senate Committee on Foreign Relations concerning U.S. practice in granting diplomatic privileges and immunities to officers and other individuals of foreign governments and international organizations. Published in 1977 as part of a study of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611-621, the answers provided by the Department of State describe, inter alia, the various categories of persons entitled to diplomatic and other privileges and immunities, report how the lists of such individuals are maintained, indicate the criteria and procedure utilized by the Department of State in granting a person privileges and immunities, and deal with related issues such as individuals with observer status, members of U.N. missions, and defendants in civil and criminal cases. The text of the questions and answers appears below:

1. Provide a summary of the various categories of persons entitled to diplomatic and other privileges and immunities, along with a list of the appropriate laws and treaties granting this immunity.

The major categories of persons entitled to diplomatic and other privileges and immunities are (1) diplomatic officers and nondiplomatic staff personnel and members of their families forming part of their households; (2) consular officers and employees and, in some cases, members of their families and (3) representatives to and officers and employees of international organizations and, some cases, members of their families.

In the case of diplomatic mission personnel and their families, the primary legal bases for the enjoyment of privileges and immunities

are the Vienna Convention on Diplomatic Relations of [April 18,] 1961 (TIAS 7502; 23 UST 3227; 500 UNTS 95), which entered into force for the United States on December 13, 1972, and the Federal Immunities Statute, originally enacted in 1790, codified in 22 U.S.C. 252-255. Under the domestic statute (which the State Department has sought in successive Congresses to have repealed as an anachronism), all diplomatic officers and their family members and private servants, and all nondiplomatic staff members of a foreign diplomatic mission in the United States are entitled to full immunity from legal process, both criminal and civil. Under the Vienna Convention, diplomatic officers and their families enjoy complete immunity from criminal jurisdiction, but only limited immunity from civil and administrative jurisdicton. So-called "administrative and technical staff" members (e.g., typists, communicators, etc.) and their families receive full criminal immunity, but civil and administrative immunity only with respect to acts performed in the performance of their official functions. The Vienna Convention provides service staff (cooks, janitors, chauffeurs, etc.) with only official acts immunity from both criminal and civil jurisdiction (their family members receiving no immunities). Private servants would enjoy no immunities under the Vienna Convention. Since, however, the Justice Department has ruled that the entry into force of the Vienna Convention did not supersede the earlier enacted Federal Statute, both continue to apply, thus providing diplomatic mission personnel with benefits flowing from both.

In addition to the above-cited treaty and Federal statute, there are assorted laws and regulations having some impact on the enjoyment of privileges and immunities by diplomatic mission personnel and dependents. For example, 26 U.S. Code § 893 grants an exemption from payment of Federal income tax to wages, fees and salaries of alien employees of foreign governments and international organizations. The Customs Regulations applicable to importations by diplomatic, consular and other privileged personnel grant special dutyfree privileges under prescribed circumstances (19 CFR 148.81 et seq.). Internal Revenue Ruling 296 sets forth foreign government personnel entitlement to certain Federal excise tax exemptions. Special legislation has been enacted to guarantee diplomatic benefits for representatives of nongovernmental bodies such as the European Economic Communities, which maintain missions in the United States. (See P.L. 92-499, October 18, 1972.) Lastly, local laws and regulations and/or customary practice extend various privileges to resident diplomatic and other official personnel as an expression of international comity or a recognition of customary international law.

Respecting consular personnel and their dependents, the primary sources of privileges and immunities are the multilateral Vienna Convention on Consular Relations of [April 24,] 1963 (TIAS 6820; 21 UST 325; 596 UNTS 487), largely a declaration of customary law on consular relations, which entered into force for the United States on December 24, 1969, and various bilateral treaties concluded during the last century with approximately 74 countries (These bilateral treaties treat specific consular privileges and immunities in

varying degrees and it is necessary to examine each to ascertain the scope of its coverage of a particular issue.) The Vienna Convention provides fiscal privileges for consular personnel similar, albeit more limited, than those accorded to diplomatic personnel. Immunities accorded consular personnel under this treaty, however, are sharply more restricted. As a general rule, consular officers and consular employees are granted only "official acts" immunities. Their family members are accorded no immunities whatsoever. Exceptions to this rule are found in specific bilateral treaties, especially those concluded within the last decade. Specific conventions illustrating such exceptional rules are those between the United States and the Soviet Union, 1968 (TIAS 6503), Poland, 1973 (TIAS 7642), Hungary, 1973 (TIAS 7641), Romania, 1973 (TIAS 7643) and Bulgaria, 1975 (TIAS 8067). There is no Federal statute extending immunities to consuls, but, as in the case of diplomats, local regulations and practice affect the benefits which this class of foreign officials receive. Privileges and immunities accorded international organization personnel are governed by U.S. legislation in the form of the International Organizations Immunities Act, P.L. 79-291, 22 U.S.C. 288, and both bilateral and multilateral agreements on privileges and immunities of specific organizations. The Headquarters Agreement between the United States and the United Nations (... TIAS 1676) determines that organization's entitlement to benefits in the United States. Under section 15 thereof, diplomatic representatives of the U.N. receive the same privileges and immunities accorded to diplomatic envoys accredited to the United States. In addition to the Headquarters Agreement, the United Nations, representatives thereto as well as officials and employees thereof, receive privileges and immunities under P.L. 79-291 and the multilateral Convention on Privileges and Immunities of the United Nations [done on February 13, 1946] (21 UST 1418; TIAS 6900 [1 UNTS 16]), which entered into force for the United States on April 29, 1970. The Organization of American States, which like the United Nations is headquartered in the United States, also has concluded a headquarters agreement with the United States under which diplomatic representatives to the OAS, including Permanent Observers of nonmember States, receive the same privileges and immunities as diplomatic representatives accredited to the United States. The OAS, as a recognized public international organization, and its officers and employees, also enjoy the benefits of P.L. 79-291.

International organizations, to which the United States is not a party and which, therefore, do not qualify for the benefits of P.L. 79291, must be accorded benefits by special legislative enactments. Examples of such organizations are the Organization of African Unity and the European Space Research Organization. (See 22 U.S.C. 288 et seq.)

2. Provide a list of: (a) the names of all duly accredited diplomatic officers, their wives, and family. (Blue Book); (b) the names of the administrative, clerical, and service personnel of diplomatic missions. (White list); (c) the names of the persons afforded privileges and immunity under section 15 of the Headquarters Agreement between the United States and the United Nations; (d) the

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names of the persons afforded privileges and immunity under the bilateral agreement between the U.S. and the Organization of American States; (e) the names of those persons associated with the North Atlantic Treaty Organization which are granted privileges and immunity; (f) the individuals afforded privileges and immunities under section 7 of the International Organizations Immunities Act; and (g) any consular officers or other individuals that are afforded full or limited privileges and immunities.

2. (a) The current "Diplomatic List" is attached. . . . It is commonly referred to as the "Blue Book." It contains the names of duly accredited diplomatic officers and their spouses. It does not list other dependents and we have no convenient way of supplying that information unless we extracted this information from the individual forms completed by each diplomatic officer when he or she is accredited to the United States.

(b) The booklet "Employees of Diplomatic Missions" is attached. . . . It is commonly known as the "White List." It contains the employees of diplomatic missions who are not listed in the "Diplomatic List."

(c) The most recent list of officers of Permanent Missions to the United Nations entitled to diplomatic privileges and immunities is attached. . . . It is current as of April 1976.

(d) The Directory of the Organization of American States is attached. . . . That Directory lists persons who are entitled to diplomatic privileges and immunities. However, the Directory also lists the United States permanent mission who are, of course, not entitled to privileges and immunities. It also lists a very few persons whose duties are such (clerical, etc.) that the United States has not extended diplomatic status to them.

(e) To be supplied.

(f) There are approximately 12,000 individuals at the United Nations, the OAS, and other international organizations who are afforded the limited privileges and immunities granted under section 7 of the International Organizations Immunities Act. The Department of State does not maintain listings of such persons, but if needed by the Committee, lists could possibly be made available by the Department's requesting them of some two dozen international organizations in this country.

(g) The list of Foreign Consular Officers in the United States is attached. . . .

3. What is the criteria and the procedure utilized by the State Department to grant a person privileges and immunities?

Privileges and immunities are accorded to members of foreign missions who have been accredited or recognized by the United States according to their official positions and rank, and in accordance with applicable treaty and other legal provisions. (See answer to Question 1, supra.) Persons accredited to international organizations are recognized by the United States in accordance with standing procedures between the Department of State and the organization concerned. Privileges and immunities are withdrawn when the individual ceases to occupy a position entitling him to the same, or if he or she is declared persona non grata or otherwise determined by the

Secretary of State to be unsuitable (e.g., because of a pattern of abuse) for continued enjoyment of privileges and immunities.

4. What is the policy for recognition of privileges and immunities with respect to individuals with observer status or members of missions to the U.N.? (Cite regulations or furnish copies of policy memoranda.)

See attached circular diplomatic note, dated July 30, 1968, addressed to all missions to the United Nations. Observer missions and individual observers generally receive no privileges and immunities. If an observer is also accredited as a member of his country's mission to the United States or the United Nations, the individual officer is accorded the privileges and immunities appropriate to his position within the mission. An exception to this rule exists in the case of Permanent Observers to the OAS, whose privileges and immunities are based upon Federal legislation (P.L. 93-149) and the Agreement with the Organization of American States Relating to Privileges and Immunities (TIAS 8089, . . .).

5. Is this policy applied equally without regard to whether the observer or Mission might be characterized as "friendly" or "unfriendly" to U.S. interests? In the event of a dispute with respect to the recognition of privileges and immunities, what mechanism exists for resolving the dispute? How many such cases arose during the last five years? On how many occasions was the proponent of privileges and immunities afforded an opportunity to present his views in person? Identify and be specific to the legal administration. Which ones and why?

Privileges and immunities for observer missions are considered on the basis of the degree of recognition of the organization, the extent of official activities, and the demonstrated need for such benefits. Disputes regarding privileges and immunities normally relate to whether an individual assigned to a specific category is actually performing tasks warranting the enjoyment of these special benefits. Both the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations contain Protocols on the Compulsory Settlement of disputes. Under these Protocols any disputes arising out of the interpretation or application of the Conventions fall within the compulsory jurisdiction of the International Court of Justice.

During the last five years the Vienna Conventions' mechanisms for solving disputes over privileges and immunities have not been used. All questions relating to immunities for individual officials of foreign governments have been handled on an ad hoc basis. The Department does not maintain records of the number of cases handled, since in many cases an issue is resolved by the Department's issuance of a written certification of immunity status or by a written or oral confirmation to appropriate authorities or members of the public that a particular individual has a certain type or degree of immunity. If a proponent of immunity wishes to express his position, either in writing or in person, he is afforded every opportunity to do so. Normally, however, his mission communicates with the Department of State through usual diplomatic channels.