The relevant rules of international law on the question of social security compliance are embodied in Articles 33, 37 and 38 of the Vienna Convention. Under these provisions, both diplomatic agents and members of the administrative-technical and service staffs of a diplomatic mission are exempt from the social security requirements of the receiving state respecting the services which they perform for the sending state. This exemption also extends to private servants of diplomatic mission personnel, if the private servants are already covered by a social security system of the sending state or a third state and, as in the case of the mission personnel themselves (see Article 38), they are neither nationals nor permanent residents of the receiving state. If these private servants are not exempt, then their employers are required to comply with the applicable social security regulations, even though they are not subject to those regulations respecting their own employment.

It is to be noted that the provisions of the Vienna Convention cited above do not impose any direct obligation on the sending state (i.e., foreign government) respecting participation in a social security system for the benefit of its employees who may or may not be subject to the system. Under traditional rules of sovereign immunity, one government is not subject to the jurisdiction of another with regard to such matters. The United States Government has consistently maintained the position that, absent a special agreement, it may not be compelled to comply with the requirements of a foreign government social security system for the benefit, for example, of its local employees who are required or eligible to participate. On the other hand, the Department of State recognizes that its local employees in United States missions abroad may be required individually to participate in a social security program and these persons may also elect to participate voluntarily when eligible. It is also noted that, under regulations of the Department of State, participation in a foreign host government insurance system may be authorized contingent upon the meeting of specified conditions and the proper negotiations with the host government. ([Department of State] Foreign Affairs Manual, Vol. 3, Section 971.2)

Since general international law does not require foreign governments to comply with the social security provisions of other governments respecting its employees in foreign governments, each host state should formulate its own rules relating to compliance with social security requirements by its nationals or permanent residents who are employed by foreign governments. In the case of the United States, Federal law provides that United States citizens who are employees of foreign governments are eligible to participate in the Federal Old-Age and Survivors Insurance Trust Fund program (social security) as self-employed persons engaged in a trade or business. In this way, these employees are eligible for participation while the foreign government-employer is relieved of any obligation of compliance.

*

Dept. of State File No. P74 0021-2108. Arts, 33, 37 and 38 of the 1961 Vienna Convention on Diplomatic Relations (TIAS 7502; 23 UST 3227; entered into force for the United States Dec. 13, 1972) provide:

Article 33

1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending state be exempt from social security provisions which may be in force in the receiving state.

2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:

(a) that they are not nationals of or permanently resident in the receiving state; and

(b) that they are covered by the social security provisions which may be in force in the sending state or a third state.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations, which the social security provisions of the receiving state impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving state provided that such participation is permitted by that state.

5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.

Article 37

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.

Article 38

1. Except insofar as additional privileges and immunities may be granted by the receiving state, a diplomatic agent who is a national of or permanently resident in that state shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions. 2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving state shall 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.

Diplomatic Residence

In a letter dated September 9, 1974, to the Director of Finance and Revenue of the District of Columbia, Horace F. Shamwell, Jr., of the Office of the Legal Adviser, Department of State, noted that real estate tax exemptions for diplomatic residences are effective as of the date of the transfer of the property to the foreign government concerned. The District of Columbia had originally placed certain lots, to be used as a residence of the Chief of Liaison Office of the People's Republic of China, in exemption status effective July 1, 1974. The property was acquired by the Government of the P.R.C. on July 23, 1973. Mr. Shamwell said, in pertinent part:

The Vienna Convention on Diplomatic Relations of 1961 which is now in force for the United States requires that the sending state and the head of the diplomatic mission shall be exempt from all property taxes in respect of premises of the mission, defined in Article 1(i) to include the residence of the head of the mission. The legislation extending privileges and immunities to the People's Republic of China Liaison Office (Public Law 93-22, April 20, 1973) provides that the Liaison Office of the People's Republic of China in Washington and members thereof shall enjoy the same privileges and immunities, subject to the corresponding conditions and obligations, as are enjoyed by diplomatic missions accredited to the United States and members thereof. The State Department interprets the Vienna Convention and customary international law as requiring the extension of real estate tax exemptions to property which qualifies for such exemptions as of the date of the transfer of the property to the foreign government or the foreign government representative concerned. This obligation is applicable both to the Federal Government and to state and local governments.

Dept. of State File No. P74 0126-2247. See also the 1973 Digest, Ch. 4, § 1, pp. 140-141.

Exercise of Functions

Financial Responsibilities

On September 4, 1974, the United States and the German Democratic Republic signed an Agreed Minute on Negotiations Concerning the Establishment of Diplomatic Relations (TIAS 7937; 25 UST 2597; entered into force September 4, 1974). As part of the negotiated agreement, the United States and the German Democratic Republic exchanged letters on July 24, 1974, setting forth the agreement of

the two Governments on the fiscal requirements of the planned U.S. Embassy in Berlin. The text of the agreed terms is as follows:

1. The Embassy of the United States of America in Berlin may open an account in convertible currency as well as an account in Marks of the German Democratic Republic with the Deutsche Aussenhandelsbank (DABA) in Berlin. These accounts shall be at the free disposal of the Embassy in accordance with the general terms of business transactions of the Deutsche Aussenhandelsbank.

2. The holder of the account will receive a check-book of the Deutsche Aussenhandelsbank for both types of account. The preprinted checks may be utilized in accordance with the general terms of business transactions of the Deutsche Aussenhandelsbank.

In order to accommodate transactions via the central computer in Paris, the holder of the account is also permitted to use preprinted checks of special size and special quality as mutually agreed.

3. Deposits in Marks of the G.D.R. which can be proven to have resulted from the exchange of convertible currencies may be reconverted to U.S. dollars or other convertible currencies at any time.

4. The Deutsche Aussenhandelsbank shall honor Treasury checks of the United States of America as well as personal checks of employees of the Embassy and of official visitors of the U.S. Government, provided they conform to the customary international conditions on check transactions.

5. The U.S. Embassy in Berlin may convert at the Deutsche Aussenhandelsbank into Marks of the German Democratic Republic payment media denominated in foreign currencies for employees of the U.S. Government. These transactions shall be effected at the rate of exchange fixed by the Staatsbank of the G.D.R. and valid on the day of exchange.

The Deutsche Aussenhandelsbank is under no obligation to reconvert Marks of the G.D.R., which the Embassy of the United States of America has exchanged in these transactions, into foreign currencies.

6. The Deutsche Aussenhandelsbank shall accept U.S. Treasury dollar checks for conversion into cash dollar currency, provided these checks correspond to the customary international conditions on check transactions.

7. Service charges for all money transactions shall be set in accordance with the list of currently valid charges of the Deutsche Aussenhandelsbank.

See Dept. of State File L/T. See also this section, pp. 162-163; Ch. 2, § 3, supra, p. 11; this Chapter, § 2, infra, pp. 179–180; Ch. 9, § 3, infra, pp. 425–426. The U.S. fiscal requirements, as set forth above, are similar to those already accepted by the governments of other socialist states, including the Soviet Union.

Travel

Paragraph 8 of the U.S.-German Democratic Republic (G.D.R.) Agreed Minute, above, states that "Travel by members of the respec

tive missions will be without impediment. They are free to enter and depart at any point customarily utilized by foreign travelers." During the negotiations preceding the signing of the Agreed Minute, the G.D.R. representatives assured the U.S. delegation that travel by U.S. diplomats in the German Democratic Republic would be unrestricted except for limited military areas. The United States agreed to reciprocate.

See Dept. of State File L/T.

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Consular Officers and Consulates

U.S.-Czechoslovakia

Consular Conventions

The Consular Convention between the United States and Czechoslovakia was approved by the Senate on September 30, 1974. The provisions follow the pattern of the conventions signed with Poland, Romania and Hungary which entered into force July 6, 1973. (See the 1973 Digest, Ch. 4, § 2, pp. 158-161.)

The consular functions and services assured on a reciprocal basis by the Convention with Czechoslovakia include the issuance of passports and visas, performance of notarial services, and representation of the interests of nationals in estate matters. The Convention assures that consuls whose nationals are detained or whose personal freedom is limited in any way will be promptly notified-in no event more than three calendar days after the date of detention-and will have the right to visit and communicate with and provide necessary assistance to such nationals. Visits will be permitted as soon as possible and may not be refused after four calendar days from the date of detention or other limitation of personal freedom.

Articles 2-12 provide for the establishment of consular posts, appointment of officers and employees of such posts, and procedures for terminating their activities. Article 13 provides for the use of the coat of arms and flag. Article 14 provides for inviolability of premises and the residences of the heads of consular establishments and Article 15 provides for inviolability of the consular archives. Under Article 17 the officers and members of their families are entitled to personal inviolability and immunity from criminal jurisdiction provided they are not nationals or permanent residents of the receiving state. Such persons are also accorded, with certain stated exceptions, immunity from the civil and administrative jurisdiction of the receiving state. The immunities of consular employees and their families are also outlined in this Article. Articles 18-27 provide for additional privileges