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exemption if they are not nationals of the receiving state. Article 37(2) provides exemption for members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, provided they are not nationals or permanent residents of the receiving state. Since the Vienna Convention does not provide privileges and exemptions for nationals of the receiving state, it is the Department's view that members of the staffs of the diplomatic missions or their family members who are United States nationals holding dual citizenship are not entitled to tax exemption privileges.
Dept. of State File No. P76 0055-369.
The Secretary of State, in a note of April 6, 1976, to the Liberian Ambassador in Washington, responded to the Ambassador's inquiry regarding real estate tax exemption of property purchased by the Government of Liberia for use as the residence of the financial counselor of the Embassy. The following is an excerpt from the Secretary's note:
The Department of State does not consider that the tax articles of the Vienna Convention on Diplomatic Relations provide real estate tax exemption for properties used for residential purposes by diplomatic officers other than the head of the diplomatic mission. It is the Department's view, however, that properties owned by the Government of Liberia and maintained as residences of members of the diplomatic staff are exempt from taxation under the provisions of Article III of the Consular Convention between the United States and Liberia which entered into force December 21, 1939. The last paragraph of Article III reads as follows:
Lands and buildings situated in the territory of either High Contracting Party, of which the other High Contracting Party is the legal or equitable owner and which are used exclusively for governmental purposes by that owner, shall be exempt from taxation of every kind, National, State, Provincial and Municipal, other than assessments levied for services or local public improvements by which the premises are benefited.
Dept. of State File No. P76 0050-611. The Consular Convention between the United States and Liberia was signed Oct. 7, 1938 (TS 975; 54 Stat. 1751).
The Department of State informed the Embassy of the Argentine Republic in Washington, in a note dated April 19, 1976, that it did not regard property owned by the Argentine Government and maintained as the residence of the Chief of the Argentine Naval Mission as qualifying for tax exemption under Article 34(b) of the Vienna Convention on Diplomatic Relations (TIAS 7502; 23 UST 3227). The following is an excerpt from the Department's note:
The Department of State recognizes the Argentine Naval Mission as an integral part of the Embassy of the Argentine Republic, but does not consider the chief of that mission as the head of mission as defined in Article 1(a) of the Vienna Convention on Diplomatic Relations.
Article 23 of the Vienna Convention on Diplomatic Relations provides that the sending state and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered. The expression "premises of the mission" is defined in Article 1(i) of the Convention as "buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission." It is therefore the Department's view that, respecting residential properties, only property occupied by the chief of the diplomatic mission qualifies for exemption under Article 23.
The Department further considers the exemption from taxation provided under Article 34(b) of the Convention cannot be accorded to a diplomatic agent who holds real property for private residential use.
Dept. of State File No. P76 0055-1652. Under Art. 34(b) of the Vienna Convention on Diplomatic Relations, a diplomatic agent is not exempt from dues and taxes on 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."
The Secretary of State, in a note of September 30, 1975, to the Chiefs of Mission in Washington, informed them of the position of the U.S. Government on the question of the acceptance of outside employment in the United States by foreign diplomatic personnel and dependent members of their families. The Secretary's note stated, in relevant part:
It is the position of this Government that the acceptance of private gainful employment in the United States by a foreign diplomatic officer, by an employee of a diplomatic mission, by their servants and personal employees, or by members of their families is inconsistent with their exempt status as nonimmigrants under section 101(a)(15)(A) of the Immigration and Nationality Act.
On a case by case basis, however, the Department of State will consider a request from the mission for approval of acceptance by the holder of an "A" visa of a specific offer of outside employment in the educational, cultural, or medical field, where the visa holder has specialized knowledge in the particular field. Prior written
approval must be obtained by the mission from the Department of State in each case before a person may take employment.
As in the past, the Department will consider a request for approval of specific part-time or vacation-period employment of a dependent student enrolled in a full-time course of study at a high school or institution of higher learning. A request for such employment must also come from the diplomatic mission.
In accepting outside employment, the employee should be prepared to pay regular income tax and social security deductions from earnings.
The attention of the Chiefs of Mission is invited to this Government's concern over the presence of large numbers of aliens illegally residing and working in the United States, and efforts being made by this Government to alleviate that problem. In order to avoid the possibility of jeopardizing the status of privileged persons, it is essential that foreign diplomatic mission personnel not take private employment without the concurrence of this Department. If any person presently employed has not yet obtained the Department's approval, it is necessary for the mission to request such approval from the Department. Should the Department find that the employment is not acceptable, it will notify the mission that such employment must cease. Should any person in privileged nonimmigrant visa status wish to engage or continue to engage in such employment outside the excepted fields, it will be essential for that person to request a change in immigration status directly through the Immigration and Naturalization Service.
Dept. of State File No. P76 0190-1079. The note superseded the Secretary of State's note on the subject dated Mar. 24, 1965. It suggested that any questions concerning the matter be directed to the Special Protocol Services Section of the Office of Chief of Protocol, Dept. of State.
Consular Officers and Consulates
Functions of Consuls
Protection of Nationals
On August 12, 1976, Acting Assistant Secretary of State Hewson Ryan called in the Argentine Ambassador in Washington "to reiterate the grave concern of the United States at the failure thus far of the Argentine Government to observe its obligations under the Vienna Convention" on Consular Relations (TIAS 6820; 21 UST 77) to grant consular access to Father James Martin Weeks who had been detained by the Argentine Government on August 3.
Dept. of State News Briefing, DPC 152, Aug. 13, 1976.
An aide memoire of August 12, 1976, from the Department of State to the Argentine Embassy set forth the U.S. complaint as follows:
The Department of State restates and emphasizes in the strongest terms the protests, both oral and written, made to the Ministry of Foreign Affairs by our Embassy in Buenos Aires
regarding the failure of the Government of Argentina to grant consular access to Father James Martin Weeks who was detained in Cordoba August 3, 1976.
Our Embassy learned of Father Week's arrest through private citizens and raised the matter with the Argentine Foreign Ministry, officially requesting on August 6 authorization to send a consular official to Cordoba to see Father Weeks. The Ministry took the position that Father Weeks was being held incommunicado and under Argentine law could not be visited so long as he was being held in that status.
The Department considers this interpretation to be in violation of the 1963 Vienna Convention on Consular Relations to which the United States and Argentina are parties. Article 36, paragraph 1, subparagraph (A) states quite clearly that consular officers shall be free to communicate with nationals of the sending state and to have access to them. Nationals of the sending state shall have the same freedom with respect to communication with and access to consular officers of the sending state. Paragraph 2 of article 36 does indicate that the right is exercised in conformity with the laws and regulations of the receiving state; however, those laws must enable full effect to be given to the purposes for which the rights accorded under this article are intended. In other words, the laws of the country must be consistent with article 36.
The Department strongly urges the Argentine Government to reexamine its position and to authorize immediate consular access to Father Weeks. The continued denial of consular access in violation of an international agreement could be damaging to relations between our two countries.
Dept. of State File No. P76 0131-1285. The Argentine authorities released Father Weeks from custody on Aug. 17, 1976, two weeks after his detention. Human Rights and U.S. Policy, Reports submitted to the Committee on International Relations, House of Representatives, by the Dept. of State, Dec. 31, 1976, Committee Print, 94th Cong., 2d Sess., p. 2.
The U.S. District Court for the Western District of Texas in Redpath v. Kissinger, 415 F. Supp. 566 (1976), on May 6, 1976, dismissed a petition for mandamus filed by John Redpath against Secretary of State Kissinger and other U.S. Government officials. Petitioner had been arrested in Mexico, charged with passing bad checks, and sentenced to a prison term there. He alleged that he was subjected to torture in prison and that defendants negligently failed and refused to accord him the assistance which, as an American citizen, he was entitled to receive.
The District Court found, on the basis of evidence presented, that
the petitioner received the services of American consular officers as set forth in the Consular Affairs memorandum attached to its motion [to dismiss]. Nothing is found from the petitioner himself which reflects that his arrest and conviction were improper. The Director of Special Consular Services, who is the official apparently charged with the duty of investigating the imprisonment of American nationals abroad, made special inquiry
into the torture allegations of Redpath and found no substantiation for that claim. The rights of petitioner accruing under the statute concerning citizens in prison by foreign governments, 22 U.S.C. 1732, to have his case examined into and a report made thereof have been accorded to him. The Government's response shows that the claim of petitioner has been followed up with appropriate inquiries by the officials charged with the protection of arrested American nationals, and any further action with respect to Redpath's situation will have to be taken by the Executive through his agent, the Secretary of State.
The order of the Court cited United States v. Dulles, 222 F.2d 390 (1954), as dispositive of the petition, and Oetjen v. Central Leather Company, 246 U.S. 297 (1918), as precluding judicial inquiry or decision into the action taken by the Executive department. Judicial Authority
In Ross et al. v. Kissinger, No. 75-2547, the U.S. Court of Appeals for the Ninth Circuit, on December 16, 1976, affirmed the judgment of the U.S. District Court for the Central District of California that the provisions of 22 U.S.C. 146 and 180, which formerly authorized U.S. consuls to exercise judicial authority in certain foreign places, were no longer in force and effect.
The Appeals Court confirmed that 22 U.S.C. 146 and 180 were repealed by Congress effective October 6, 1956 (P.L. 856, 70 Stat. 773), citing Reid v. Covert, 354 U.S. 1, 12n.21 (1957), and J. Moore, Federal Practice 10.3 , at 54-55, 55 n.12 (1976). It rejected as immaterial the question of the constitutionality of Public Law 856 as a violation of the treatymaking power, holding that "the rights sought by the appellants were conferred solely by statute, 22 U.S.C. 180, and hence could be abolished by subsequent legislation enacted without compliance with any restrictions applicable to treatymaking powers."
P.L. 856 (70 Stat. 773) provided for repeal of the sections to become effective upon the date the President determines to be appropriate for relinquishment of consular jurisdiction of the United States in Morocco, except so far as necessary for disposition of cases then pending in the consular courts in Morocco. The United States relinquished consular jurisdiction in Morocco by note dated Oct. 6, 1956, from the American Ambassador to Morocco to the Minister of Foreign Affairs. 6 Whiteman, Digest of International Law 315.
In a memorandum dated May 19, 1976, Horace F. Shamwell, Deputy Assistant Legal Adviser for Management, Department of State, stated the opinion that service of process at the Canadian consulate general in New York without the permission of the head of the consulate or his designated representative had violated the inviolability of the consulate general under article 31, paragraph 2 of the Vienna Convention on Consular Relations (TIAS