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6820; 21 UST 77; entered into force for the United States Dec. 24, 1969). He noted that the cited provision "specifically prohibits authorities of the receiving state from entering the consular premises without the consent of the head of the consulate, his designee or the head of the diplomatic mission of the sending state, unless consent can be presumed in the case of fire or other disaster."
Dept. of State File No. P76 0112-1797.
The inviolability of consular premises in relation to entry by a private person for the purpose of service of process was the subject of a letter dated October 4, 1976, from Deputy Assistant Legal Adviser Horace F. Shamwell, Jr., to a New York law firm. Mr. Shamwell's letter stated, in part:
I have had occasion to review in some detail the drafting history of article 31 of the Vienna Convention on Consular Relations.. the intent of the article's coverage is unambiguous.
The Vienna Consular Convention's inviolability article is based upon and is a modification of article 22 of the Vienna Convention on Diplomatic Relations of 1961 [TIAS 7502; 23 UST 3227; entered into force for the United States Dec. 13, 1972]. The latter Convention also refers to a prohibition against "agents" of the receiving state entering the premises of the mission without consent from the head of the mission. Neither Convention refers in the provision in question to entries by persons who are nonagents or nonauthorities, since no such entry was anticipated. Authorization of such action would not be in keeping with the traditional provisions concept of absolute inviolability upon which the cited of both Conventions were based. (The Consular Convention's provisions expand upon the exceptions to absolute inviolability for the purpose of (1) distinguishing consular premises from diplomatic premises and (2) specifying those conditions to absolute inviolability which were "understood" during the negotiation of the Diplomatic Relations Convention, but were not expressed in writing.)
Nowhere in the drafting history of either Convention is there any reference to or discussion of any right of a private citizen to infringe upon the inviolability of a mission by entering, for any purpose, without permission. Quite on the contrary, the language of article 31(2) of the Consular Convention and article 22(2) of the Diplomatic Convention is intended to establish a duty on the part of the receiving state which is separate and distinct from that contained in article 31(1) [VCCR] and article 22(1) [VCDR] respecting receiving state officials. The receiving state's second "special duty" is to protect the premises against intrusion, damage, disturbance of the peace and impairment of its dignity. The International Law Commission's Commentary on the Diplomatic Relations Convention's article on inviolability contains the following statement:
A special application of this principle is that no writ shall be served within the premises of the mission, nor shall any summons
to appear before a court be served in the premises. Even if process servers do not enter the premises but carry out their duty at the door, such an act would constitute an infringement of the respect due to mission. . . [1957 Draft Article with Commentary A/3623, Report of International Law Commission.]
Dept. of State File No. P76 0170-656. Art. 31 of the Vienna Convention on Consular Relations (TIAS 6820; 21 UST 77; entered into force for the U.S. Dec. 24. 1969) provides:
1. Consular premises shall be inviolable to the extent provided in this Article. 2. The authorities of the receiving state shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.
3. Subject to the provisions of paragraph 2 of this Article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.
4. The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defense or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.
For the negotiating history, see Official Records, U.N. Conference on Consular Relations, Vol. 1 (A/CONF. 25/16), pp. 21-25.
Horace F. Shamwell, Deputy Assistant Legal Adviser for Management, Department of State, wrote a letter to the Assistant Attorney General, Seattle, Washington, relating to the legal obligation of the Japanese consulate general and officers and employees of the consulate general to comply with the Washington State Industrial Insurance Act. The following is an excerpt from Mr. Shamwell's letter:
.. If the industrial insurance payments are characterized officially as a "tax," and if the obligation to pay this tax runs to the employer, a consular officer of the Japanese consulate general, who is a national of Japan, and who employs domestic servants would be exempt from payment of this tax by virtue of article 13, paragraph (2) (a) of the U.S. - Japan Consular Convention of 1963 (TIAS 5602, 15 UST 768), which entered into force in August 1964. None of the exceptions to the coverage provided in paragraph (2) (a) of article 13 applies to the employment of domestic servants within the household of a consular officer, including the consul general. . . . the consul general himself is exempt from any requirement to comply with compulsory insurance coverage for employees of the consulate. Under article 12(1) (d) of the Convention, the sending state is exempt from payment of taxes respecting "the acquisition
or rendition of services" incident to the operation of a consular establishment of the sending state. Therefore, if the consulate needs to employ persons to perform official consular duties, then it is exempt from paying all taxes in connection therewith, including industrial insurance contributions.
the question of liability of foreign diplomatic and consular missions to comply with social security and related insurance programs has arisen quite frequently in the past. Although there is no specific reference to participation in social security programs in the bilateral consular convention with Japan, treatment is given to this subject in the multilateral Vienna Convention on Consular Relations of 1963 (TIAS 6820, 21 UST 77). Under article 48 of that Convention. . . persons who are employed by a consular post are exempt from social security provisions. In addition, private servants of members of a consular post are exempt from such requirements if (1) they are not nationals or permanent residents of the receiving state and (2) are covered by social security provisions in force in the sending state or a third state. Equally significant is article 48, paragraph 4, which provides that the exemptions accorded in paragraphs 1 and 2 of the article "shall not preclude voluntary participation in the social security system of the receiving state, provided that such participation is permitted by that state."
As a general rule, the Vienna Convention on Consular Relations is a codification of customary rules of international law and practice relating to the conduct of consular relations. A rule of law embodied therein may therefore be regarded as representative of the procedure followed by many countries of the world. As applied to the situation which you described in your letter, I would conclude that, absent any restriction in the law of the State of Washington, the Japanese consulate general could participate on a voluntary basis in the State's industrial insurance program.
Dept. of State File No. P76 0055-1407.
Special Missions and Trade Delegations
Sinai Field Mission
The United States and Egypt concluded an agreement on privileges and immunities for U.S. civilian personnel in the Sinai by an exchange of notes on April 22, 1976 (TIAS 8241; 27 UST 1041). The agreement specifies in detail the privileges and immunities to be enjoyed in Egypt by members, and resident dependents of members, of the Sinai Field Mission assigned to duties under the U.S. proposal to Egypt and Israel of September 1, 1975, regarding an early warning system in the Sinai (TIAS 8156; 26 UST 2278; entered into force October 13, 1975). The 1976 agreement also establishes certain operational procedures that are to be followed in Egypt in connection with the Sinai Field Mission's activities.
The agreement is essentially an elaboration of article 6 of the U.S.
proposal for an early-warning system, which provided in general terms that members of the Field Mission should enjoy immunity from local criminal, civil, tax and customs jurisdiction. By its terms the agreement constitutes an integral part of the 1975 proposal and is deemed to have taken effect as from the date of arrival of the first Mission member in Egypt and to remain in force until departure of the Mission from Egypt.
The substantive provisions of the U.S. - Egypt agreement of Apr. 22, 1976, follow:
1. The Government of the United States shall notify the competent Egyptian authorities of the arrival and the final departure of all U.S. Civilian Personnel (USCP) assigned pursuant to the above proposal within an appropriate period prior to such arrival and departure.
In all cases the number of USCP must not exceed at any time two hundred persons. 2. All USCP will respect Egyptian laws, regulations, customs and traditions, and refrain from any activity or action incompatible with their functions according to the above U.S. proposal or inconsistent with its spirit. The Government of the United States will take appropriate steps to ensure that the USCP abide by this paragraph. 3. The privileges and immunities granted to the above mentioned persons are for the purpose of facilitating the performance of the functions agreed upon in the above proposal.
4. Pursuant to paragraph 6 of the above U.S. proposal, members of the USCP shall be immune from the criminal and civil jurisdiction of the Arab Republic of Egypt. To assure that to the greatest extent possible no injustices shall be done because of this immunity, the Government of the United States advises as follows:
A. All members of the USCP have undertaken to carry third party liability insurance in an amount not less than the minimum required by the Arab Republic of Egypt for organizations not registered with an Egyptian state Insurance. Company;
B. The Secretary of State shall, in accordance with relevant provisions of the U.S. law, give due consideration to the payment of claims presented by the Government of the Arab Republic of Egypt for personal or property damage to any of its nationals, arising out of actions of the members of the USCP and not adequately compensated by the liability insurance policies mentioned above; C. The Government of the United States shall give due consideration to requests by the Government of the Arab Republic of Egypt in particular cases to waive the immunity granted by this article.
5.Appropriate authorities of the Arab Republic of Egypt outside the zone of the above mentioned Early Warning System may take into custody any of the above persons suspected of the commission or attempted commission of a criminal offense or action causing serious injury to persons or property in order immediately to deliver such person, together with any property in his or her possession, to the nearest appropriate representative of the Government of the United States and shall immediately inform the Director of the above described United States personnel or his designee of any such action. Such persons shall not be arrested or incarcerated but may be interviewed by appropriate Egyptian authorities after their delivery to, and in the presence of, an appropriate representative of the Government of the United States. Even if any such person is not taken into temporary custody in accordance with this paragraph, the Government of the Arab Republic of Egypt shall immediately notify the Director of the above described United States personnel or his designee of any alleged criminal offense, action resulting in a possible claim for damages or other misconduct by the above persons.
6. The above persons and their personal property including vehicles, shall be exempt from all forms of taxation and customs duties and inspection in the Arab Republic of Egypt.
7. The above persons will be furnished with appropriate identification which shall be produced upon demand to the appropriate authorities of the Arab Republic of Egypt. The Arab Republic of Egypt shall furnish the above persons with appropriate license plates for their personally owned vehicles and other appropriate passes, documents, and permits.
8. In the performance of their functions under the above U.S. proposal, the members of the USCP as well as their vehicles, vessels, aircraft and equipment shall enjoy without payment of fees or charges, except for charges that are related directly
to services rendered, freedom of movement between their zones as specified in the above U.S. proposal, and to and from points of access to Egypt, or to their zones according to procedures agreed upon between the Egyptian authorities and the director of USCP.
9. The provisions of this letter shall apply equally to dependents, resident in the Arab Republic of Egypt, of members of the USCP. Procedures for implementing this article shall be agreed upon between the Director of the USCP and Egyptian authorities.
Foreign Agents Registration Act
In Attorney General of the United States v. Covington & Burling, 411 F. Supp. 371 (1976), the U.S. District Court for the District of Columbia, on April 23, 1976, held, inter alia, that
an attorney who represents a foreign principal and who has registered as an agent under the [Foreign Agents Registration] Act may validly claim the attorney-client privilege to withhold from disclosure to delegates of the Attorney General documents or portions thereof which are required to be kept under the Act. Whether such documents are properly within the scope of the privilege, however, is for the Court to determine. Id. 377.
The U.S. Department of Justice filed the civil suit against the Washington law firm of Covington & Burling charging that the firm failed to produce records required by law of any individual or firm acting as an agent for a foreign principal. In this case, Covington & Burling was a registered agent for the Republic of Guinea under the Foreign Agents Registration Act (22 U.S.C. 611 et seq.). The suit charged that the law firm refused a demand by officials of the Department earlier this year to submit to a complete inspection of its books and records pertaining to the registration required by the Act. The law firm's main efforts in behalf of Guinea were centered on providing counsel concerning a project the country had undertaken to exploit its bauxite resources. The firm refused to permit the Department of Justice to inspect about five percent of its documents on the grounds that the Act recognizes an attorney-client privilege that protects these documents. The Attorney General refused to acknowledge that such a privilege existed under the Act and sought, inter alia, a mandatory injunction requiring the defendant to produce for inspection all remaining undisclosed books and records regarding its representation of the Republic of Guinea.
The District Court first found that two subsections of the Act, which deal partially with the question of confidential communications between a foreign interest and its attorney, neither exempted "agents of foreign principals" from certain disclosure provisions of the Act nor included all of the communications that have been traditionally protected by the attorney-client privilege. Those sections (613(g) and 613(d) ) exempt:
[a]ny person qualified to practice law insofar as he engages or