The specific consular functions and services which will be assured on a reciprocal basis include the issuance of passports and visas, performance of notarial services, and representation of the interests of nationals in estates matters. More significantly, the Convention assures that consuls whose nationals are arrested or detained will be promptly notified-in no event more than four days after the date of arrest or 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 two days from the date of notification of arrest or detention. Subsequent visits may be made at intervals not exceeding one month. These provisions represent a major step forward in protecting the welfare of the increasing numbers of American citizens visiting China, given that country's vast size, decentralized governmental structure and relatively limited communication facilities.

The Convention's provisions follow the pattern of bilateral consular conventions in force with a number of countries. Articles 2-7 provide for the establishment of consular posts, appointment of officers and employees of such posts and procedures for terminating their activities. Article 10 provides for inviolability of premises and the residences of consular officers, and Article 11 provides for the inviolability of the consular archives.

Under Article 13, consular officers and employees 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. This Article also provides such persons immunity from the civil and administrative jurisdiction of the receiving State, with certain stated exceptions relating to non-official activity. The provisions of this article provide considerably greater protection for consular personnel and their families than otherwise would be required under customary international law and practice (such as that reflected in the multilateral Vienna Convention on Consular Relations, which is in force for the United States but not the People's Republic of China) and will greatly enhance their ability to perform their official duties.

Articles 22-40 relate to consular functions which include, in addition to the functions referred to above, safeguarding the interests of sending State nationals in estates matters and representing the interests of nationals with respect to vessels and aircraft.

S. Treaty Doc. 97-3, 97th Cong., 1st sess. (1981), pp. 3-4.

The Convention was accompanied by two exchanges of letters, also signed on Sept. 17, 1980.

The first confirmed the parties' agreement to establishment of three additional consulates general in each other's territory, aside from those whose opening had already been agreed upon (American Consulates General at Shanghai and Guangzhou, and Chinese Consulates General at San Francisco and Houston).

The second exchange of letters constituted an integral part of the Consular Convention and set out commitments regarding certain rights of and benefits flowing to individuals. (1) Each government agreed to promote reunification of families as quickly as possible. (2) Without recognizing dual nationality, each agreed to facilitate travel to the other country of persons who might have simultaneous claims to the nationality of both countries. (3) Nationals of a sending state entering a receiving state on the basis of sending state documents having properly executed entry and exit visas of the receiving state would be considered sending state nationals for purposes of consular access and protection during the period for which their status would have been accorded. The sending state's right of consular access and protection would continue even if judicial or administrative proceedings prevented its national from leaving the (other) country during the visa's period of validity. The receiving state would permit such persons to leave without requiring exit documentation other than that which it normally required of departing aliens. (4) Persons entitled to financial benefits from the other country were to receive them under mutually agreed arrangements and in accordance with each country's laws and regulations.

The second exchange of letters also provided that upon the entry into force of the Consular Convention, the Annex on Practical Arrangements to the Agreement between the United States of America and the People's Republic of China on the Mutual Establishment of Consular Relations and the Opening of Consulates General, signed on Jan. 31, 1979 (TIAS 9177; 30 UST 17; entered into force, Jan. 31, 1979), would cease to be in effect.

Hearings were held on the Consular Convention by the Senate Committee on Foreign Relations on June 9, 1981, and on June 16, 1981, the Committee reported it favorably by a vote of 15 to 0. See, S. Ex. Rept. 97-14, 97th Cong., 1st sess. (1981). On Dec. 11, 1981, the Senate by division vote gave its advice and consent to ratification of the Consular Convention. Cong. Rec., Vol. 127, No. 185 (daily ed. Dec. 11, 1981), pp. S15080-S15082.

TIAS 10209; entered into force, Feb. 19, 1982.

In the meantime, by an exchange of notes at Beijing on June 16, 1981, the United States and China agreed to enlargement of their respective consular districts at Shanghai, Guangzhou, San Francisco, and Houston. By a further exchange of notes at Beijing on the same date, the two parties confirmed their agreement for establishment of additional American Consulates General at Chengdu, Shenyang, and Wuhan, and for establishment of additional Chinese Consulates General at New York, Chicago, and Honolulu, and for each party to establish one additional Consulate General at any time following the exchange of notes.

Honorary Consular Officers

Foreign Service Annuitant

On October 9, 1980, President Carter approved Public Law 96-407, 94 Stat. 1717, under which, pursuant to Article I, section 9, clause 8, of the Constitution of the United States, the Congress granted its consent to acceptance of the office and title of Honorary Consul of Honduras by Hewson A. Ryan, a former Foreign Service Information Officer of the United States. Mr. Ryan had also served as American Ambassador to Honduras from 1969-1973.

In reporting favorably on the proposed legislation, the Senate Committee on Foreign Relations noted that the Department of State and the American Law Division of the Congressional Research Service both considered that its enactment was necessary before Mr. Ryan could accept the office, and that the General Accounting Office, also consulted by the Committee, supported its passage as being "appropriate", in the absence of a statutory provision or court decision clarifying the status of Foreign Service retirees.

The Committee stated in part:

From the outset, the Department has maintained that retired foreign service officers indeed continue to hold such office. The Department cites the fact that Mr. Ryan continues to hold his Presidential commission and is subject to recall to service by the Secretary of State as evidence of this fact. In 1954, the Department wrote on the matter stating that it had long taken the position, based on Article I, Section 9, Clause 8 of the Constitution, that it was not compatible with the interests of the United States for any persons "holding any position under the Federal government

to act as the official representative in the United States of any foreign government and, as a matter of policy, had declined to accord recognition to such persons in a consular capacity for a foreign government" unless Congress gives its consent. (Digest of International Law [Vol. 7], M. Whiteman, p. 566.)

S. Rept. 96-988, 96th Cong., 2d sess. (1980), p. 2.

Protection

In United States v. Marcano-Carcia et al., 622 F.2d 12 (1st Cir. 1980), the United States Court of Appeals for the First Circuit affirmed the defendants' conviction for violation of 18 U.S.C. 1201(a) by having seized (kidnapped) and held hostage the Chilean Honorary Consul in San Juan, Puerto Rico. The Fifth Circuit held, as had the District Court, that the Honorary Consul was a foreign official or internationally protected person within the definition set out in 18 U.S.C. 1116(b).

Rejecting jurisdictional arguments asserted by the appellants that the Honorary Consul did not come within the scope or the terms "foreign official", "official guest", or "internationally protected person", Circuit Judge Frank M. Coffin stated in his opinion, dated May 29, 1980:

Similarly, they assert that the evidence adduced at trial was insufficient to establish that the Honorary Consul fell within the class of persons protected under section 1201. Specifically, appellants contend that the Honorary Consul was not a "foreign official" because he testified that he was not paid a salary by the

Chilean government, and that he was not an “internationally protected person" because honorary consuls are accorded less protected status than full consuls under the Vienna Convention on Consular Relations.

We find no merit in either of these arguments. Under 18 U.S.C. §1116(b), incorporated by sections 1201 and 112, a "foreign official" is defined as "any person of foreign nationality who is duly notified to the United States as an officer or employee of a foreign government . . . and who is in the United States on official business." The evidence at trial established that the Honorary Consul was a Chilean national and that he had been notified to the United States Department of State as a consular representative of the Chilean government. Most significantly, the Honorary Consul testified that he worked almost full-time performing such official duties as renewing passports and processing other official papers, for which he received a subsidy from the Chilean government. His activities thus brought him within the intended ambit of the statute. See S. Rep. No. 92-1105, 92d Cong., 2d Sess. 1, reprinted in [1972] U.S. Code Cong. & Admin. News, p. 4316. Even if the Honorary Consul is not a "foreign official", we think it is clear that he is an "internationally protected person". Although under the terms of the Vienna Convention such officials are granted less extensive rights and protections than career consular officials, we can discern no basis in the statute for distinguishing honorary from career consuls on the basis of the quantum of protection they are given under international law.

622 F.2d 12, 15.

The Court of Appeals remanded the case (but did not reverse the convictions) to allow the appellants' counsel to inspect documents relevant to selection of the jury pool, as permitted by 28 U.S.C. 1867(f), and to renew their challenge to the district court's selection procedures. The Court retained jurisdiction to review the district court's ruling on the appellants' motion to strike the jury array upon timely application of either party.

Marcano had also been convicted of assaulting a foreign official or internationally protected person in violation of 18 U.S.C. 112(a) and of making extortionate demands in violation of 18 U.S.C. 878(b). He had been sentenced to 5 years' imprisonment on each count, to run concurrently with a 12-year sentence for kidnapping. See, also, the 1978 Digest, pp. 638-641.

§3 Special Missions and Trade Delegations

Nongovernmental Entities Carrying Out
Unofficial Relations

United States-Taiwan

In a statement prepared for his testimony regarding implementation of the Taiwan Relations Act before the Subcommittee on Asian and Pacific Affairs of the House Committee on Foreign Affairs on June 11, 1980, Richard C. Holbrooke, Assistant Secretary of State for

East Asian and Pacific Affairs, described the operational relationship between the American Institute in Taiwan (AIT), a private nonprofit corporation incorporated under the laws of the District of Columbia, and authorized under section 6(a) of the Taiwan Relations Act (Public Law 96-8, approved April 10, 1979, 93 Stat. 14, 17; 22 U.S.C. 3305 (a)) to conduct and carry out programs, transactions, and other relations conducted or carried out by the President or any agency of the United States Government with respect to Taiwan, and the Coordination Council for North American Affairs (CCNAA), an organization established in Taipei, Taiwan, outside the governmental structure and constituting the nongovernmental Taiwan counterpart of the American Institute in Taiwan.

THE AIT-CCNAA RELATIONSHIP

The formula for non-governmental relations with the people of Taiwan, established in the Taiwan Relations Act, has afforded us the flexibility to deal with problems cooperatively and imaginatively. The American Institute in Taiwan (AIT) has proved its effectiveness over this past year.

Through AIT:

Americans and the people of Taiwan continue to enjoy access to travel services which allow them to travel between the United States and Taiwan to conduct business, pursue academic work and engage in other fields of mutually beneficial cooperation;

Businessmen on both sides continue to receive assistance, advice and facilitation;

Americans are able to maintain mutually beneficial relations with Taiwan on an unofficial basis in such fields as nuclear energy development, scientific cooperation and air transport;

Sales of defensive equipment are arranged; and

Our views and concerns on human rights, as well as those of Members of Congress and the American public, are transmitted to the authorities on Taiwan.

It is essential, in terms of our overall China policy, that we protect the basic understanding which made normalization possible. To that end, we have striven to maintain both the fact and the appearance of unofficiality in United States-Taiwan relations. This has led to restrictions on travel and access to government officials, and administrative procedures which some find cumbersome and inefficient. I would prefer to describe our attitude on such matters as pragmatic; we look at each case on its merits.

When we normalized relations with the People's Republic of China, we believed it essential that our existing agreements with Taiwan continue to be respected in Taiwan and to have validity under the law of the United States despite the withdrawal of recognition. Therefore as you know a Presidential Memorandum was issued on December 30, 1978, which stated that "existing international agreements and arrangements in force between the United States and Taiwan shall continue in force." The Administration