grants original and exclusive jurisdiction to the Supreme Court. in suits against foreign ambassadors or their domestic servants (28 U.S.C. 1251(a)(2)). This jurisdictional clause has never been successfully invoked in its 180 years' existence, and we know of only one instance where an attempt was made to bring an original action in the Supreme Court against a foreign ambassador or his servant. Whatever justification there may have been in the 18th Century for conferring exclusive jurisdiction on the Supreme Court in suits against diplomats, such justification has long ago vanished. I submit that no reform of United States law governing diplomatic immunity would be complete without a repeal of that jurisdictional clause, and conferring concurrent jurisdiction upon the district courts to hear cases against diplomatic personnel in instances where such suit will lie under the Vienna Convention.10

With these general observations, I turn to specific provisions of the "Fisher bill."

1. In the Department's view, the descriptive caption of the bill is too cumbersome, and may even be misleading. The caption may give the erroneous impression that a large measure of immunity will be removed from all categories of diplomatic personnel covered by the Act. While the legislation would remove from the administrative and technical staff of foreign diplomatic missions the total immunity from jurisdiction which they now enjoy under the 1790 Act, some of these persons will continue to enjoy full immunity from certain forms of jurisdiction. In addition, a statement that the bill will "establish" the Vienna Convention could imply that the Convention is not yet in force for the United States, when in fact it did enter into force on December 13, 1972, and is fully operative as to the Convention countries.

The short title of the bill, "Diplomatic Immunities Act of 1977," furnishes a succinct and sufficient description of the subject matter of the legislation, and the matters recited in the descriptive caption should perhaps be brought out in the Committee reports accompanying the bill.

In sum, we submit that Section 2 of the bill should be redrafted to provide that diplomatic agents and members of the staff of diplomatic missions, as defined in the Vienna Convention, shall enjoy in the courts of the United States and of the States such privileges and immunities as are provided for in Articles 29 to 44 of that Convention, notwithstanding that their sending state has not ratified the Convention. In addition, Section 2 should make it clear that an action brought against a diplomatic agent, members of the staff of diplomatic missions or their families under circumstances where such persons are immune from suit under the Convention shall be dismissed upon motion.

Such a provision would also make it explicit that it is proper for a court to inquire into the circumstances of a given suit to determine whether diplomatic immunity is properly invoked under the Vienna Convention, and that such judicial inquiry is not foreclosed because the process was somehow "void" at the outset.

3. Section 3 (a) of the bill would provide that an Executive determination "as to the entitlement" of foreign diplomatic personnel to diplomatic privileges and immunities "shall be conclusive and binding on all Federal, State and local authorities."

This provision would assign to the Executive a responsibility which should properly be discharged by the courts. If the determination of immunity were to be made by the Executive, the foreign state whose diplomat is named in a suit might well attempt to bring diplomatic and political influences to bear upon the State Department's determination. The State Department ought not to be placed in such an awkward position; the issue of entitlement to diplomatic immunity should be depoliticized to the maximum extent possible.

It was this very consideration which, in the related area of state immunity, prompted the Executive to recommend to the Congress enactment of the Foreign Sovereign Immunities Act of 1976. The Executive there urged, and the Congress found, that—

"A principal purpose of this bill is to transfer the determination of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and assuring litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process. The Department of State would be freed from pressures from foreign governments to recognize their immunity from suit and from any adverse consequences resulting from an unwillingness of the Department to support that immunity." [S. Rep. No. 94-1310, p. 9.]

The State Department is, of course, the proper agency of the Government to attest to the status in this country of a given diplomatic representative, and it is only with respect to the status that an Executive determination should be binding "on all Federal, State and local authorities." See In re Baiz, 135 U.S. 403, 432 (1890). Entitlement to immunity under a given set of circumstances should be left to the courts." 11

We, therefore, urge that subsection (b) of Section 3 be changed by striking the words "entitled to diplomatic privileges and immunities" at the end.

Finally, we also question the desirability of having the Executive publish the list of diplomatic personnel in the Federal Register. We believe that the present periodic publications by the State Department of the "Diplomatic List" and the "List of Employees of Diplomatic Missions," and their ready availability to interested agencies and to private parties is adequate, and the Federal Register (as well as the public purse) should not be burdened with an unnecessary countrywide publication of foreign diplomatic personnel. 4. Section 4 of the bill is, in our view, redundant. It is established American constitutional doctrine that when the Constitution or an Act of Congress assigns to the President certain functions, he may carry out his functions through subordinate officers, and the President and his subordinates have implied authority to take all steps "as may be necessary to carry out such functions." 12 At most, this section should provide that the President may exercise any func

tions conferred upon him by this Act through any agency that he may designate.

5. Section 5 of the bill should also be revised. Although we do not know whether any "suit or proceeding" is pending anywhere in the country under the 1790 Act, the legislation under consideration should be regarded as remedial, and should be retroactive. As presently worded, Section 5 would make the Act prospective only. We know of no justification for such a stricture.

The United Kingdom, as you know, ratified the Vienna Convention as early as 1964, and repealed at the same time its old diplomatic immunities act of 1708 (the father of our 1790 Act). The question of retroactivity was considered by the English Court of Appeal in Epson v. Smith, L.R. [1966] 1 Q.B. 426. In that case an action for a breach of a lease was brought in an English county court against an official of the Canadian Embassy in 1963; the action, though originally subject to dismissal on immunity grounds under the old statute was still pending when the Diplomatic Privileges Act, 1964, took effect. The Epson court held that the new Act was remedial, and that it applied to all suits brought after the date on which it came into force in respect of causes of action which arose before that date.13

We commend the Court of Appeal's reasoning to this Subcommittee. In our view, Section 5 as presently worded should be dropped. In its place, this Committee may wish to insert a provision delaying the effective date of the Act, so as to give the State Department adequate opportunity to inform the diplomatic community of the enactment of this legislation.

For the sake of completeness of my presentation, I should note here that Congress recently provided a remedy in cases where officials or employees of a foreign state (including diplomatic personnel) cause tortious injury while acting within their scope of office; in such cases vicarious liability is imposed upon the foreign state itself, and suit can now be maintained against such state under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1605 (a) (5).

The gap left by that Act which needs urgent remedial action by Congress is to provide effective redress to victims of traffic accidents caused by diplomatic personnel while not on duty. Although the issue of diplomatic liability in tort has been widely debated of late, some of the discussion has been predicated on a false premise: the inability of a person injured in a traffic accident caused by a foreign diplomat to obtain redress in court is largely of our own making, and not due to the diplomatic community's insistence on exemption from liability (as has occasionally been implied).

[I]n closing I wish to stress to this Subcommittee one point which the State Department has urged in its correspondence with the Committee and in their testimony here:

The bill coming out of this Subcommittee should grant to the President authority to extend, on a reciprocal basis, more favorable treatment than is required by the Vienna Convention. Such more

favorable treatment would relate primarily to immunity from criminal and civil jurisdiction of members of the administrative and technical staff and the service staff of the mission. It is, I believe, apparent that if members of American diplomatic missions are to be exempted from the rigors of some municipal laws to be found in certain foreign countries, the Executive should have discretionary authority to negotiate with such countries for a reciprocal grant of more favorable treatment. The Executive, we submit, should have such discretionary power as part of his foreign affairs powers, and to protect our own Foreign Service.

Diplomatic Privileges and Immunities, Hearings and Markup before the Subcommittee on International Operations of the Committee on International Relations of the House of Representatives, 95th Cong., 1st Sess., pp. 96-107 (the "Committee Print").

Set forth below are the footnotes to Mr. Ristau's testimony:

'T.I.A.S. 7502, 23 U.S.T. 3227 (1972).

'That Act, as originally enacted in the Crimes Act of 1790, c. 9, 1 Stat. 11718, was an almost verbatim adaptation of the English statute of 7 Anne, c. 12 (1708). The incident which led to the passage of the English statute was the arrest and imprisonment of the Russian Ambassador for a private debt. See 1 "Blackstone Commentaries" * 255.

* Founding Church of Scientology v. Lord Cramer, et al., O.T. 1971, Orig. No. 51; motion for leave to file bill of complaint denied, 404 U.S. 933 (1971).

In Er parte Gruber, 269 U.S. 302 (1925)—the only other case involving the original jurisdiction of the Supreme Court in suits affecting diplomats-the Court held that American diplomats accredited to foreign governments were not covered by this jurisdictional grant.

10

Article III, Section 2, of the Constitution provides that "In all Cases affecting Ambassadors, other public Ministers and Consuls . . . the Supreme Court shall have original Jurisdiction." In Section 1351 of the Judiciary Code (Title 28), Congress has already vested concurrent jurisdiction in the district courts "of all actions and proceedings against consuls or vice consuls of foreign states." "This has been the traditional approach of the State Department with respect to the immunity of any foreign official who enjoys only a functional immunity, that is, immunity with respect to acts performed only in an official capacity. Thus, in response to a Panamanian request for certification of a consular official's immunity, the Department of State responded:

"The Department of State will on request ask the Department of Justice to have the appropriate United States Attorney present to the Court a certificate from the Department of State attesting to . . . [the consul's] official status as Consul General of Panama at Los Angeles, and stating that her consular district includes San Pedro, California.

"Any statement which the Ministry may wish to make to establish that . [the consul] was acting in her official capacity and within the scope of her functions, and pursuant to specific instructions from the Ministry, should be offered in evidence by her attorney. It is the present practice of the Department of Justice to decline to submit to a court in the United States, on behalf of a foreign government, evidentiary matter of this kind, since it involves a legal question which is properly for determination by the court having jurisdiction of the case. In contrast, the certificate by the Department as to. [the consul's] recognition in a consular capacity relates to information of record in the Department of State concerning a matter which is for determination in the executive rather than the judicial branch of the Government." [State Dep't. Airgram A-66, December 26, 1962, to American Embassy in Panama.]

12 See Marbury v. Madison, 1 Cranch 137, 166 (1803). 13 Said the Court:

"If the defendant had applied before the passing of the Diplomatic Privileges Act, 1964, to have the plaintiff's action dismissed there would have been no answer to his application. But he delayed until November 1964. By that date his right to immunity from civil suit had been curtailed by that Act which applies to the United Kingdom the provisions of the Vienna Convention on Diplomatic Relations, 1961, contained in the schedule to the Act. By the combined effect of Articles 31 and 37 of the Convention, as a member of the administrative and technical staff of the mission his immunity from the civil jurisdiction of the courts of the United Kingdom does not extend to acts performed outside the course of his duties. Whether he is entitled to immunity in any particular suit no longer depends solely upon his status but also upon the subject-matter of the suit.

"It is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit. If authority is needed for this it is to be found in Dickinson v. Del Solar, which has been cited by my brother Danckwerts L.J. Statutes relating to diplomatic immunity from civil suit are procedural statutes. The Diplomatic Privileges Act, 1964, is, in my view, clearly applicable to suits brought after the date on which that statute came into force in respect of acts done before that date. If, therefore, the plaintiff had issued her plaint after 1 October 1964, instead of before, the action could not have been dismissed upon the ground of diplomatic privilege unless and until the court had determined the issue: whether or not the defendant's acts alleged by the plaintiff to constitute her cause of action against him were acts performed outside the course of his duties. It is, to say the least, arguable that acts done by the defendant in relation to his tenancy of his private residence in London were performed by him outside the course of his duties. But this issue is one which can be decided only upon evidence." [L.R. [1966] 1 Q.B. at 437-438.]

Art. 37 of the Vienna Convention on Diplomatic Relations appears below:

1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.

2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.

3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.

4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

In a letter dated May 12, 1977, and reprinted on pp. 64 and 65 of the Committee Print, Douglas J. Bennet, Jr., Assistant Secretary for Congressional Relations, replied to an inquiry from Representative Fisher concerning the number of individuals in diplomatic, administrative, technical, service, and private staffs accorded diplomatic privileges and immunities in the United States. Mr. Bennet reported separately the number of diplomatic personnel accorded diplomatic