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state). The Department of State regulations require such a procedure. (See Volume 2 Foreign Affairs Manual section 221 et. seq.)

Dept. of State File No. P77 0009-4.

Certification of Immunity

The circumstances in which the Department of State will comply with requests for certification of the immunity status of diplomatic and consular officers and employees and their family members were set forth in a note of November 18, 1976, from the Secretary of State to the Chiefs of Mission in Washington. The note stated:

In the past the Office of the Chief of Protocol has customarily complied with such requests regardless of whether they came from the affected embassy, a judge or other public official, or an attorney representing a party in a legal proceeding.

In the future the Department will continue to furnish certifications, where immunity obtains, if the request has been made by the employing embassy. In all other instances the embassy will be advised of the request and allowed the opportunity to consider what action, if any, it wishes to take.

The Department will no longer, therefore, respond to a request for an immunity certification which comes from a lawyer or any other party without first ascertaining whether the appropriate embassy concurs in its issuance.

This procedural change will ensure that the employing diplomatic mission is aware of the charge or complaint filed or expected to be filed against its employee-information it should have to protect itself. It also will give due recognition to the principle of international law that immunity exists to ensure the efficient performance of the functions of diplomatic missions, not to protect the individual. Finally, the Department believes it will result in the embassy's determining carefully, at the stage at which the certification is sought, whether it wishes immunity to be used for the protection of the individual or wishes to waive it because waiver would entail no impediment to the functions of the mission.

In this connection the Department invites the attention of the Chiefs of Mission to the resolution on Consideration of Civil Claims approved on April 14, 1961, by the United Nations Conference on Diplomatic Intercourse and Immunities, as it concluded the sessions which produced the Vienna Convention on Diplomatic Relations. In that resolution the Conference recommended that the sending state waive the immunity of members of its diplomatic mission in respect of civil claims of persons in the receiving state when this can be done without impeding the performance of the functions of the mission, and that, when immunity is not waived, the sending state should use its best endeavors to bring about a just settlement of the claims.

Dept. of State File No. P76 0188-2199. The resolution on consideration of civil claims was adopted at the 12th Plenary Meeting of the U.N. Conference on Diplomatic Intercourse and Immunities, on Apr. 14, 1961. See Report of the U.S. Delegation, Dept. of State Publication 7289, Feb. 1962.

Bank Records

The issue arose in October 1976 whether diplomatic immunity extends to commercial bank records involving transactions of a foreign embassy or diplomatic agent. The Department of State informed the foreign embassy involved that after extensive review of the matter it had concluded that customary and conventional international law immunities relating to archives and documents of a diplomatic agent do not extend to a commercial bank's records maintained by the bank itself for its purposes.

The Department stated that while bank records maintained by an embassy or its diplomatic agents would be immune from subpoena, those records maintained by a bank for a variety of purposes are not entitled under international law to immunity from jurisdiction of U.S. courts. It added, however, that there was no doubt that embassy funds or funds of a diplomatic agent deposited in a bank account are immune from legal process.

Dept. of State File L/M.

Duty-free Importation

The Department of State informed the Argentine Embassy in Washington by note dated November 16, 1976, of the importation privileges available to foreign diplomatic and consular officers in the United States, as follows:

[T]his Government accords free importation_privileges provided by Article 36 of the Vienna Convention on Diplomatic Relations ([TIAS 7502; 23 UST 3227] and Article 50 of the Vienna Convention on Consular Relations [TIAS 6820; 21 UST 77]) to foreign diplomatic officers and consular officers of career. Free entry is authorized by the U.S. Customs Service in accordance with applicable provisions of Part 148 of the Customs Regulations and Schedule 8 of the Tariff Schedules, which provide that free entry, on the basis of reciprocity, shall be accorded at the request of the Department of State.

Diplomatic and consular officers may obtain their personal and household effects and other articles intended for their personal or family use duty-and tax-free during their entire period of official assignment in the United States. Free entry extends to all articles, including alcoholic beverages and tobacco products, imported from abroad or withdrawn from customs bonded warehouse, except for items which are prohibited entry under

United States law, such as certain agricultural products and merchandise of Cuban origin.

The only quantitative limitation in effect applies to the importation of automobiles, i.e., officers other than the chief of mission may import only two new vehicles duty-free for personal or family use in a three-year period. There is no restriction on the number of dutyfree vehicles which may be imported for the official use of an embassy or consular office or for the personal or family use of a chief of diplomatic mission.

Dept. of State File No. P76 181-0837.

Recourse for Injured Persons

Hampton Davis, Assistant Chief of Protocol, Department of State, wrote a letter on December 30, 1976, to Gerry Spaulding, who had inquired about the recourse available to U.S. citizens who may have been caused damage by a foreign diplomat immune from local jurisdiction. The following is an excerpt from Mr. Davis's letter:

Depending upon the circumstances of the individual case, there are a number of avenues of recourse potentially open to the U.S. citizen who has been caused physical or monetary damage by a foreign diplomat not subject to local jurisdiction for his own actions because of immunity.

If it is an automobile accident which causes the damage, compensation is often obtained through the diplomat's insurance policy, since diplomats are expected to, and most do, carry insurance. This is true even in jurisdictions, like the District of Columbia and the State of Virginia, where there exists no law making the carrying of public liability insurance a prerequisite to automobile registration.

Another recourse available to the aggrieved citizen is the filing of a written claim with supporting details with the Office of Protocol, Department of State, Washington, D.C., 20520. In appropriate cases we use our good offices to bring the matter to the attention of the employing embassy with a request that it use its best efforts to promote a just settlement of the dispute. There even exists precedent for an embassy to waive the individual's immunity, such waiver being expressly limited to the civil claim in question. If immunity is waived, the matter can then be adjudicated in the courts in normal fashion.

In some cases, the Department of State may consider that the circumstances warrant an exertion of its best endeavors to prevail upon the foreign government of the diplomat or employee whose action generated the claim to make a suitable ex gratia payment, that is, one based on compassionate grounds and implying no acknowledgment of legal liability on the part of that government.. Yet another potential avenue of recourse has recently been opened up through enactment of Public Law 94-583, entitled the "Foreign Sovereign Immunities Act of 1976." [See post, Ch. 6, § 7, pp. 320-328] This Act, which takes effect ninety days after October

21, 1976, the date of its enactment, provides a basis for a claimant in certain types of cases to obtain jurisdiction over a foreign government in United States courts where the defense of sovereign, as distinguished from diplomatic (i.e., personal), immunity has in the past proved a bar to effective legal action. This new law establishes a number of general exceptions to the jurisdictional immunity of a foreign state. Under one of the exceptions it now becomes possible, with certain limitations, to file suit for money damages against a foreign state when it is alleged that personal injury or death, or damage to or loss of property, occurring in the United States, has been caused by the tortious act or omission of any official or employee of that foreign state, provided it can be demonstrated that such individual was at the time acting within the scope of his office or employment.

The Department of State plans to introduce in the 95th Congress a bill whose enactment it has sought in the past without success [See ante, p. 188]. This bill would, among other things, repeal certain laws (Sections 252-254, Title 22, United States Code) that were passed in 1790 to prescribe the terms and implementation of immunity of diplomatic mission personnel

.. We know of no law now in existence which would afford an avenue for American citizens, with claims such as you have described, to pursue in seeking satisfaction against their own government. The United States Government does not assume liability for the actions of foreign diplomats, or subordinate members of the staff of the mission, entitled at present to claim diplomatic immunity.

Dept. of State File No. P77 0018-1359.


The Deputy County Attorney of Arlington County, Virginia, by letter of October 15, 1976, requested of the Department of State an opinion on the application of State and local law to a residential apartment house which had been purchased by the Government of the German Democratic Republic (G.D.R.) for use as residences for members of the G.D.R. Embassy staff. He inquired, in particular, as to the effect of any existing treaty obligations on the application of local ordinances, specifically those which require inspections of buildings in the county for which remodelling permits have been requested.

Horace F. Shamwell, Jr., Deputy Assistant Legal Adviser for Management, Department of State, replied by letter dated October 18, 1976, as follows:

Under customary international law, as embodied in the Vienna Convention on Diplomatic Relations of 1961, which is presently in force between the United States and the German Democratic

Republic, premises of the diplomatic mission and residences of officers and employees of a diplomatic mission are entitled to inviolability. Under article 22 of the Convention and articles 30 and 37 of the Convention, such residential property, as well as other premises of the mission itself, may not be entered by authorities of the receiving state except with the consent of the head of the mission. Although absolute inviolability applies to such property, the owners and occupiers of the property are not thereby exempt from compliance with the laws and regulations of the receiving state with respect to such matters as building codes, zoning restrictions, sanitary requirements and the like. For the most part, foreign diplomatic missions voluntarily comply with the applicable regulations and restrictions and do not abuse any immunity which they enjoy. However, in the absence of express consent, no compulsory measures may be taken by local authorities to gain entry for the purpose of securing compliance with applicable regulations.


It is the position of the State Department that all appropriate assistance should be extended to local authorities to facilitate application of their laws while at the same time respecting the privileged position of foreign missions and their personnel. It is the usual procedure for local authorities who encounter any actual or potential difficulties with respect to insuring required compliance to seek the assistance of the State Department for the purpose of communicating any concerns to the foreign government [T]he District of Columbia issued an order on June 19, 1961, applying to compliance by foreign missions with applicable zoning, building and related regulations in the District of Columbia. The procedure which has been followed by the District of Columbia has been to treat every situation on a case-by-case basis and, if necessary, to communicate with the Department of State in the event of difficulty in securing compliance with District of Columbia regulations.

Dept. of State File No. P76 0170-723.

Dual Nationals



The Department of State, in a note dated April 15, 1976, to the Embassy of France in Washington, replied as follows to a query whether family members of the mission staff who are citizens of France and of the United States are eligible to receive tax exemption credentials:

Sales tax exemption is accorded to individuals who qualify for exemption under the provisions of Articles 34 and 37 of the Vienna Convention on Diplomatic Relations [TIAS 7502; 23 UST 3227]. While these articles do not deal specifically with fiscal exemption entitlement of dual nationals, Article 37(1) of the Convention provides that family members of diplomatic agents shall enjoy

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