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If, however, the plaintiff has brought the action in question against the foreign government rather than the individuals named in the action, then the State Department certification of immunity status does not affect the question of a sovereign immunity defense available to the defendant foreign government.
If the basic issue of the lawsuit is whether the foreign government in question can claim sovereign immunity as a defense to the action, then the usual procedures followed by the Department of State in handling sovereign immunity questions should be applied. Under this procedure a foreign government may assert a defense of sovereign immunity to the Court. It may also request the Department of State to recognize and allow its claim of immunity. (After permitting all parties an opportunity to present views) ... the Department of State will determine whether or not to ask the Justice Department to file a suggestion of sovereign immunity with the Court which has jurisdiction over the action. A determination of the sovereign immunity question is separate and distinct from any certification as to the immunity status of an individual who may be associated with the foreign government involved. The Department of State has not been requested to recognize a claim of sovereign immunity in this case and expresses no opinion on the merits of that question,
Family Members and Dependents
In response to a request for an interpretation of the diplomatic immunities statute, 22 U.S.C. § 252 et seq., as applied to an American citizen who is a spouse or other family member of a diplomatic agent, Horace F. Shamwell, Deputy Assistant Legal Adviser for Management, expressed the opinion that the statute must be applied so as not to exclude American citizen dependents of diplomatic agents from the judicial immunities provided therein. Mr. Shamwell's memorandum, dated February 21, 1975, reads in part:
You specifically inquired as to whether a spouse or other family member of a diplomatic agent, who is an American citizen, is entitled to immunity from criminal and civil jurisdiction under the statute. This question is prompted in part by the fact that the Vienna Convention on Diplomatic Relations of 1961, which is now in force for the United States, generally limits privileges and immunities to persons who are neither nationals nor permanent residents of the receiving state.
I know of no actual case which has prompted a judicial or administrative determination on this question.
The provisions of 22 U.S.C. $$ 252-254, are still in force and have not been superseded by the Vienna Convention. The Justice Department ruled on May 4, 1973, in a letter to the Department's Acting Legal Adviser, that was a matter of domestic law the Convention does not repeal or supersede 22 U.S.C. $ $ 252-254 in situations where both are applicable." The Justice Department in that letter did not specifically address the question of immunity for U.S. citizen family members of diplomatic agents. Research into this question in the past has revealed no further definitive statements on this question. Therefore, it must be presumed that the statute must be applied as written so as not to exclude American citizen dependents of diplomatic agents from the enjoyment of judicial immunities. Memorandum to Hampton Davis, Assistant Chief of Protocol, Dept. of State File No. P75 0080-0831.
Diplomatic Premises and Personnel
In Renchard v. Humphreys and Harding, Inc., et al., Civil Action No. 2128-72, in the District Court for the District of Columbia (see the 1974 Digest, pp. 166, 263, 272), the plaintiffs moved to compel discovery from the defendants in their action to recover from the Brazilian Embassy and others for alleged damage to their property from construction of the Brazilian Chancery on adjoining property. The defendants objected, asserting diplomatic immunity and the inviolability of embassy archives under Articles 22, 24, 27, 30, 31, and 37 of the Vienna Convention on Diplomatic Relations (TIAS 7502; 23 UST 3227; entered into force for the United States December 13, 1972).
The District Court, on April 25, 1975, denied plaintiffs' motion, holding that the Embassy archives could not be reached by the discovery procedure. It took into consideration a letter to the Brazilian Ambassador from the Department of State, which stated, in part:
I wish to assure you that the Department of State, in deciding to decline to recognize and allow sovereign immunity from suit to the Federative Republic of Brazil in the above-styled case
in no way intended to imply that the protection of the Vienna Convention on Diplomatic Relations . . . would not be available to your Embassy. . . . Thus, while it is the position of the Department of State that the Government of Brazil does not enjoy immunity from suit in the courts of the United States in the subject litigation : ;
it is also the position of the Department of State that the documents and archives of the Embassy are inviolable under the Vienna Convention as against any order of a United States Court. For a note of the Dept. of State of July 8, 1975, agreeing to file a limited suggestion of immunity in this case, see post, Ch. 6, § 7, pp. 342-344.
Following the takeover of South Viet-Nam by the forces of North Viet-Nam, the Department of State and the South Vietnamese Embassy in Washington exchanged notes, on May 21, 1975, concerning termination of the activities of the Embassy, as well as of South Vietnamese economic and information offices and consulates. The notes confirmed the continued protection of the immunities of the Vienna Convention on Diplomatic Relations (TIAS 7502; 23 UST 3227; entered into force for the United States December 13, 1972) and the Vienna Convention on Consular Relations (TIAS 6820; 21 UST 77; entered into force for the United States December 24, 1969) for acts performed by Embassy personnel and consular officers, respectively, prior to such termination.
The text of the Embassy's note of May 21, 1975, follows:
The Embassy of the Republic of Viet-Nam ... has the honor to inform the Department that, as a result of the takeover of South Viet-Nam by Communist forces, the Embassy has no other alternative than to terminate its activities. All activities, including those of the consulates general in San Francisco and New York, and the economic and information offices as well as the Embassy proper, are therefore terminated as of this date. It is understood that, as a principle recognized by the Vienna Convention on Diplomatic Relations of April 18, 1961, the acts performed by the Vietnamese Ambassador and his staff in their official capacity prior to the termination of the activities of the mission will continue to be protected by the immunities specified in that Convention.
Accordingly, the Embassy herewith transmits to the Department the keys to the Embassy building and an inventory of its contents which includes furnishings and equipment which were formerly located in the Ambassador's residence and in the economic and information offices. In addition, the Embassy transmits herewith a list of the Embassy's official bank accounts and their current balances.
The Department of State replied, in part:
The Department shares the understanding of the Embassy and considers that under the Vienna Convention on Diplomatic Relations, the acts performed by the Vietnamese Ambassador and his staff in their official capacity prior to the termination of the activities of the mission will continue to be protected by the immunities specified in that Convention. Similar protection is also afforded consular officers and employees under the Vienna Convention on Consular Relations with respect to acts performed by them in the exercise of their official functions prior to the termination of the activities of the consulates.
Dept. of State File Nos. P75 01076–2212 and P75 0087–1351. Art. 45 of the Vienna Convention on Diplomatic Relations (TIAS 7502; 23 UST 3248) provides that if a mission is permanently or temporarily recalled, the receiving state must “respect and protect the premises of the mission, together with its property and archives.”
On November 11, 1975, Ambassador Barbara M. White, United States Representative in Committee Six (Legal), made a statement on the Report of the Committee on Relations with the Host Country, dated November 5, 1975, in which she stressed the need, under the U.S. system of jurisprudence, for diplomats to appear in court in cases involving their interests. An excerpt from her statement follows:
To those who have charged that we have been lax in apprehending and punishing perpetrators of acts involving the dignity, if not necessarily the security of diplomats, we would wish to recall the following facts: Under our system of justice it is not possible to obtain a conviction unless the evidence on which such a conviction could be based is presented in open court. In those cases in which the only witness is a diplomat, we need your cooperation in order to obtain the convictions called for. In seeking your cooperation, we do not ask anything that is not an obligation upon all diplomats under existing law. In this connection, I would recall Article 4, Section 14, of the United Nations Convention on Privileges and Immunities which reads as follows: "Privileges and immunities are accorded to the representatives of members not for the personal benefit of members themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the member, the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.”
See Press Release USUN-143(75), Nov. 11, 1975. The United Nations Convention on Privileges and Immunities of Feb. 13, 1946, entered into force for the United States Apr. 29, 1970, subject to reservations (TIAS 6900; 21 UST 1418).
Diplomatic and Consular Personnel
On May 21, 1975, Henry E. Catto, Jr., Chief of Protocol, Department of State, sent letters to the Governors of the fifty States, bringing to their attention the entry into force for the United States on December 13, 1972, of the Vienna Convention on
Diplomatic Relations (TIAS 7502; 23 UST 3227) and also reminding them of the Vienna Convention on Consular Relations (TIAS 6820; 21 UST 77; entered into force for the United States December 24, 1969). With respect to the tax exemptions provided in those Conventions, the letter stated:
Of particular concern to the Department of State . . . is the need for recognition throughout the fifty States of entitlement of both diplomatic and consular personnel, as well as members of their families forming part of their households, to the traditional and customary exemption “from all dues and taxes, personal and real, national, regional or municipal," with the exception of certain specified classes of dues, taxes, fees, or charges enumerated in Article 34 of the Vienna Convention on Diplomatic Relations and Article 49 of the Vienna Convention on Consular Relations : ... Your attention is particularly invited to the first stated exception in both the cited Articles, which is that dealing with indirect taxes. These taxes are most often taxes associated with retail sales.
Whereas in the past many States of the Union have not accorded foreign consular personnel, and often diplomatic personnel, local sales tax exemption on the ground that their sales tax was characterized as an “indirect” tax, both Conventions have eliminated this as a basis for denial of exemption unless the tax is one "normally incorporated in the price of goods and services.” So far as we are aware, it is the general practice throughout the country for State sales taxes to be separately stated and added on to the listed purchase price of goods and services. It is, therefore, the opinion of the Department of State that the language of the two Vienna Conventions under these circumstances requires all State and local authorities to grant exemption from their sales taxes to all eligible diplomatic and consular personnel. Since Federal law, of which treaties are a part, must under the Constitution prevail in event of any conflict with local law, the requirements of both Conventions would supersede local statutes or ordinances appearing to create a bar to such exemptions.
Dept. of State File No. P76 0023–2043.
The United States and the Republic of Niger, on July 21, 1975, signed an Agreement to Provide Certain Social Security Benefits for Certain Employees of the United States in the Republic of Niger (TIAS 8194; 26 UST). The Agreement, which had retro active effect to January 1, 1974, was for the purpose of enrolling in the National Social Security Fund of Niger for old-age, disability,