privileges and immunities through affiliation with U.N. permanent missions or employment in the United Nations. Mr. Bennet also provided information on the number of complaints received by the Dept. of State from U.S. citizens with regard members of the diplomatic community accorded diplomatic immunity. A portion of Assistant Secretary Bennet's letter appears below:

You have asked for the number of individuals currently included in each personnel category defined in the Vienna Convention on Diplomatic Relations and the number of family members associated with each category. Statistics have not been maintained on this basis in the past, since all members of the staff of a diplomatic mission who are foreign nationals in proper visa status continue to enjoy full diplomatic immunity under Sections 252-254 of Title 22, United States Code. We have, therefore, made a special analysis of those individuals named in the latest issue of the Department of State publication, "Employees of Diplomatic Missions", to obtain our best approximation of the breakdown you desire. The updated figures in the requested format covering diplomatic personnel in Washington, including members of the Liaison Office of the People's Republic of China and members of permanent missions to the Organization of American States who are accorded diplomatic privileges and immunities through acts of Congress, are as follows:

Some explanation of the figures given for family members in the first two categories is in order. The identity of family members now afforded full or partial diplomatic immunity in the United States is ascertained by examination of the individual notification forms submitted to the Department's Office of Protocol on diplomats and subordinate staff members. The number of such persons fluctuates on a daily basis. In view of this fluctuation and the workload involved in compiling and maintaining the total number in each of the categories (for example, spouses, dependent parents, children in different age groups), precise statistics are not kept on a continuing basis. Therefore, we have arrived at the figures shown by projecting from a random sample of significant size.

You will note that no figures on family members are given for members of the service staff or private servants. This is because such family members have no immunity under either the early statutes on the subject or the Vienna Convention on Diplomatic Relations. It should also be noted that repeal of the statutes will have no effect on the immunity status of family members of employees on the administrative and technical staff. This is so because they have enjoyed no immunity whatever under court interpretations of the statutes but did acquire through the Vienna Convention in 1972, and will continue to enjoy, immunity from criminal jurisdiction only. Thus the important effects of repeal of the statutes in question as regards members of the mission below the rank of diplomat will be (1) to divest the employees themselves of their present immunity from civil and administrative jurisdiction as to acts performed outside the course of their duties and (2) to withdraw immunity from criminal jurisdiction as well from the employees who make up the service staff.

We have gone to some length to explain the immunity status of family members in the several categories because it would be correct to consider only the family members of the diplomats as possessing full diplomatic immunity either now or in the future, should the immunity statutes be repealed. Moreover, it should be kept in mind that a large proportion of the family members represented by the figures given is made up of young children concerning whom complaints from our citizens could not be expected to arise. Indeed, we would have to say that complaints that are brought to the Department's attention rarely pertain to family members, regardless of the age of the individual or the category in which the principal falls.

To complete the record on the number of diplomatic personnel in the United States, we furnish the following updated figures on persons in New York City who under special legislation enjoy diplomatic privileges and immunities through affiliation with their governments' permanent missions to the United Nations or employment in top positions in the U.N. itself:

U.N. permanent mission representatives_

Family members...

U.N. officials_____
Family members..

1, 320 3, 300

40

100

We turn to your question regarding the number of complaints received from U.S. citizens about members of the diplomatic community in which immunity was a factor. The results of our survey for the three year period, April 10, 1974– April 9, 1977, show that there were 59 such incidents (57 civil and 2 criminal), or approximately 20 a year. This figure does not take into account cases which have been resolved-usually through State Department intervention. It does, however, include a number of cases which are still pending and which we hope to resolve satisfactorily. I should point out that we are aware of at least one instance in which, at our request, an embassy waived the immunity of a member of the mission to allow a full adjudication of competing claims. Not included in the above figure are the cases in which I am aware you have had a particular interest, i.e., the death of Blake Berger, and the automobile accident involving Ralph N. Sabatell, Jr. In the Berger case, immunity was an impediment to legal process until the embassy employment of Florentino A. Rumingan was terminated, after which we understand he was tried and acquitted of the charges brought against him, and a civil action was instituted by Mr. Berger's survivors. In the Sabatell case, we understand that a substantial insurance payment was made to the injured party, and we do not consider that immunity was a hindrance in resolving that claim.

Appendix 4 of the Committee Print, which is found on pp. 211 through 219, contains questions concerning diplomatic privileges and immunities submitted by the Subcommittee on International Operations to the Dept. of State together with the answers of the Dept. of State. Questions in Part I of the Appendix deal with such topics as the immunity of diplomats under the Vienna Convention on Diplomatic Relations and under U.S. statutory law, the types of damage caused by foreign diplomatic personnel to U.S. citizens, and the possible repercussions to U.S. personnel assigned to foreign countries if the 1790 Act of the United States were to be repealed. Part II contains, inter alia, information on diplomatic immunity under the 1790 Act and the Vienna Convention on Diplomatic Relations, the privileges and immunities of consular officers under the Vienna Convention on Consular Relations done on Apr. 24, 1963 (TIAS 6820; 21 UST 77; 596 UNTS 261; entered into force for the United States on Dec. 24, 1969), and the effect that the repeal of the 1790 Act would have on nonsignatory nations to the Vienna Convention on Diplomatic Relations. Portions of Appendix 4, taken from pp. 211-212 and 214-217 of the Committee Print, appear below:

PART I

Question 1. We understand that diplomatic immunity accorded by the United States and the Vienna Convention differ on some very substantial points. Can you please list by the following personnel categories the discrepancy between diplomatic immunity accorded by the United States and the Vienna Convention:

(a) Diplomatic Agents, (b) Family Members of Diplomatic Agents, (c) Administrative and Technical staff, (d) Family Members of Administrative and Technical staff, (e) Service staff, (f) Family Members of Service staff, and (g) Private Servants of Diplomatic Agents.

Answer. The following immunity is accorded to the various categories of diplomatic mission personnel under U.S. law (vis-a-vis the Vienna Convention):

(a) Diplomatic Agents-full immunity from criminal and civil jurisdiction under 22 U.S.C. 252-254; full immunity from criminal jurisdiction under the Vienna Convention, and immunity from civil and administrative jurisdiction with three notable exceptions (private immovable property matters; private participation in settlement of an estate, and participation in professional and commercial activity outside official functions).

(b) Family members of diplomatic agents-full immunity from criminal and civil jurisdiction under current U.S. law; same immunity as diplomatic agents under the Vienna Convention.

(c) Administrative and technical staff-full immunity from criminal and civil jurisdiction under current U.S. law; full immunity from criminal jurisdiction, but immunity respecting official activities only under the Vienna Convention.

(d) Family members of administrative and technical staff-no immunity under current U.S. law; full immunity from criminal jurisdiction under Vienna Convention.

(e) Service staff-full immunity from criminal and civil jurisdiction under current U.S. law; official acts immunity from both criminal and civil jurisdiction under Vienna Convention.

(f) Family members of service staff-no immunity under either current U.S. law or the Vienna Convention.

(g) Private servants of diplomatic agents-full immunity from criminal and civil jurisdiction under current U.S. law; no immunity under Vienna Convention.

Question 2. Are there any other countries whose provisions for diplomatic immunity differ from the Vienna Convention as substantially as do those of the United States?

(a) To what extent do requirements imposed on foreign diplomats vary from nation to nation?

(b) Are most other countries' provisions in line with the Vienna Convention? Answer. The Department is not aware of foreign country legislation analogous to 22 U.S.C. 252-254 extending full immunity to all categories of diplomatic mission personnel.

(a) While there may not exist legislation in foreign countries extending broader immunity than required by the Vienna Convention, it is possible that in practice, varying from country to country, different immunity rules may be applied.

(b) To the Department's knowledge, most other countries follow the Vienna Convention rules.

Question 3. Why are the provisions for diplomatic immunity in the United States so different from those of the Vienna Convention?

Answer. U.S. practice differs from the Vienna Convention standards solely because the 1790 immunities statute (22 U.S.C. 252–254) has not been repealed, despite a number of efforts since 1965, when the Senate gave its advice and consent to ratification of the Vienna Convention.

Question 5. Can you cite any cases in which U.S. diplomatic personnel have committed offenses in foreign countries which have created major diplomatic problems for the U.S. Government and the host country?

Answer. Any such cases in the past have been rare. Generally, the host country does not pursue criminal prosecution if civil compensation, through insurance or otherwise which is expected by the Department of State-is forthcoming and satisfactory to the injured party or parties. In some cases, the United States has been requested to withdraw, or has voluntarily withdrawn, the individual from the receiving country.

Question 8. Can you give us some indication of the extent of damages to U.S. citizens by foreign diplomatic personnel?

Answer. We do have a list of claims (or complaints) made by U.S. citizens and business firms against foreign diplomatic mission personnel for the period April 9. 1974-April 10, 1977, which have not yet been resolved to the Department's knowledge. Where dollar figures are involved, no amounts are shown as they are often in dispute, if not totally denied as owing. [The list, which ap

pears on pages 214 and 215 of the Committee Print, contains 55 claims against representatives of 25 countries under the following headings: auto accident, disorderly conduct, divorce, lease, parking, personal debt and theft.]

Question 9. What changes would be entailed by the changes that are proposed in the legislation for diplomatic immunity in the United States?

(a) Would these changes have any repercussions for our own personnel in foreign countries?

Answer. See answer to question 1 respecting changes in immunities which would be imposed upon various categories of personnel of foreign diplomatic missions if current U.S. immunities law is repealed.

(a) It is possible that repeal of the 1790 statute would have repercussions for U.S. personnel assigned to foreign countries if those countries are now according U.S. personnel more liberal immunities than required under the Vienna Convention. In the Soviet Union, for example, U.S. personnel in all categories are accorded full immunity from jurisdiction. The Soviet Union would be authorized under the Vienna Convention to restrict those immunities on a reciprocal basis if immunities of Soviet personnel in this country are similarly restricted. If, however, the President is granted authority in complementing legislation to extend greater immunities than required by the Vienna Convention, this situation could be remedied.

PART II

Question 4. How many countries are not signatory to the Convention on Diplomatic Relations?

Answer. There are now 122 parties to the Vienna Convention on Diplomatic Relations, including the U.S. Therefore, approximately 25 countries which are eligible to ratify or adhere to the Convention have not done so as of this date. Question 5. What is the diplomatic status of consular officers in the United States? Personnel in consular offices outside Washington?

Answer. Consular officers in the U.S. receive privileges and immunities by virtue of either the multilateral Vienna Convention on Consular Relations of 1963, which is in force for the U.S., or by virtue of one of the several bilateral consular conventions between the U.S. and foreign countries. Consular personnel assigned to Washington normally have diplomatic titles and hence enjoy diplomatic privileges and immunities in addition to consular privileges and immunities. Consular personnel assigned outside of Washington are limited to treaty based privileges and immunities. Under customary international law as embodied in the Vienna Convention on Consular Relations, consular officers and consular employees are limited to immunity from jurisdiction respecting their official acts only. Family members of consular personnel under customary international law receive no immunity.

Question 6. What would be the effect of repeal of the 1790 statute on nonsignatory nations to the Convention?

Answer. It is unclear what specific legal effect repeal of the 1790 statute would have on nonsignatory nations. Since the Vienna Convention is universally accepted as a codification of binding customary international law on the subject, it is probable to assume that the Vienna Convention privileges and immunities would be extended to nonsignatory nations.

Question 7. Should legislation repealing the 1790 statute make clear that the Convention standards should apply to nonsignatory nations?

Answer. Legislation repealing the 1790 statute should express an intention to apply Vienna Convention standards even to nonsignatory nations.

Question 8. Under existing law, who determines the status of an employee of a foreign mission? Who determines entitlement to immunity in a civil or criminal action? What would be the situation under the Convention?

Answer. Under existing law the status of an employee of a foreign mission is determined through the individual's designation to a particular position by his or her foreign government. If the Department of State objects to assigning a particular individual to a specific job, then the Department can notify the foreign government of its nonacceptance of that particular assignment. The Office of Protocol normally confirms the status of a particular representative of a foreign government as a member of the diplomatic or nondiplomatic staff

of a foreign mission and, hence, his entitlement to immunity in a civil or criminal action. When the status of the individual is not determinative of the scope of immunity to which he is entitled (e.g. when he enjoys immunity for official acts only) then it is up to the court or other authority to make determination of the entitlement to immunity. Under the Vienna Convention the same procedure would be followed; however, since more persons will be entitled to official acts immunity only, there will be more occasions for the courts to make a determination as to entitlement.

Question 9. What should be the effect of repeal of the 1790 statute on any causes of action that arise prior to repeal?

Answer. According to traditional legislative submissions by the Administration, and according to the provisions of H.R. 1484, repeal of the 1790 statute would not prejudice any rights accrued prior to its repeal.

For portions of the Appendix of the Committee Print dealing with diplomatic immunity as related to the use of motor vehicles, avenues of recourse for injured persons, and liability insurance, see ante, Ch. 4, § 1, pp. 261–263.

On July 27, 1977, the House of Representatives passed H.R. 7819, entitled an Act to complement the Vienna Convention on Diplomatic Relations.

On August 1, 1977, Bruno A. Ristau testified pursuant to the invitation of Representative Peter W. Rodino, Jr., Chairinan of the House Committee on the Judiciary, concerning H.R. 7679, a bill introduced by Representative George E. Danielson to provide for direct actions against insurers on claims against persons entitled to diplomatic immunity. In his testimony before the Subcommittee on Administrative Law and Governmental Relations, Mr. Ristau described how the enactment of H.R. 7679 would fill the gap left open by the Foreign Sovereign Immunities Act of 1976 and the pending legislation on diplomatic immunities. Mr. Ristau analyzed U.S. case law, the European Convention on Compulsory Insurance against Civil Liability in Respect of Motor Vehicles of April 20, 1959, and provisions of the U.S. Constitution in arriving at his conclusion that the Congress is fully authorized to enact a limited Federal direct action statute such as H.R. 7679. Portions of Mr. Ristau's testimony appear below:

The Department of Justice considers it imperative that H.R. 7679 be enacted if the United States is to modernize fully and comprehensively its laws dealing with the redress which citizens of this country may obtain in our courts against foreign states and officials of foreign states.

H.R. 7679 will, in our view, complete the circle and fill the gap still left open by the Foreign Immunities Act and by the proposed Diplomatic Immunities Act: it will provide an effective remedy and ensure collectability on claims against foreign diplomats under circumstances where diplomats themselves will remain personally immune from suit in the courts of our country.

The bill would cure a serious deficiency of our legal system which prevents an injured party from obtaining effective redress from a foreign diplomat's insurance carrier. This deficiency is due to the common law rule requiring a negligently injured party to assert its