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death and family benefits all the non-U.S.-citizen local employees of the American Embassy at Niamey. Enrollment included all such employees on the rolls of the Embassy on January 1, 1974, as well as those employed after that date or hired in the future.
The Agreement provides for the United States to pay into the National Security Fund the amount specified for the employer to pay on behalf of each employee participating in the Fund and to withhold contributions of its employees as appropriate and remit these to the appropriate Niger officials. Payments to the Fund would be made at such times and on such forms as required by the Fund for other employers in the area.
Legal authority for the Agreement was derived from Sec. 444 of the Foreign Service Act, as amended (22 U.S.C. 889), which provides for the establishment by the Secretary of State of compensation plans for alien employees of the Foreign Service which conform to locally prevailing wage rates and compensation practices to the extent consistent with the public interest.
The United States and Singapore, by an exchange of notes on September 8 and 9, 1975 (TIAS 8190; 26 UST), entered into a similar agreement for United States participation on a limited basis in the Central Provident Fund of Singapore for certain employees of the United States Government in Singapore. The agreement was effective April 1, 1975.
Previous arrangements had been made for the United States to participate on a limited voluntary basis in the Fiji National Provident Fund and in the Malaysian Employees Provident Fund. The conditions for such participation were set forth in unilateral statements by the United States contained in notes from the Embassies at Suva and Kuala Lumpur delivered on January 17, 1975, and March 17, 1975, respectively.
Dept. of State File L/T.
In a note dated September 24, 1975, the Department of State informed the Government of Botswana that tax exempt status for residences of diplomatic agents other than the chief of mission was not available in the District of Columbia in the absence of an applicable treaty provision. The Department's note, replying to an inquiry from the Embassy of Botswana, stated, in part:
foreign government properties in the District of Columbia are exempt from real estate taxation in accordance with the provisions of Section 47-801a(c) of the District of Columbia Code, which exempts from real estate taxation foreign governmentowned property used as a chancery, chancery annex, or residence of a chief of mission, or under applicable treaty provision.
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. Inasmuch as Article 1(i) of the Convention defines "premises of the mission" as building 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, the Department of State holds the view that exemption under Article 23 does not extend to residences of diplomatic agents other than the chief of mission. In view of the above, and of the absence of a consular convention or other applicable treaty provision, there is no authority to grant tax exempt status to the residence of the First Secretary.
Dept. of State File No. P75 0149–1577.
Diplomatic Mission Property
In a memorandum of October 21, 1975, Horace F. Shamwell, Deputy Assistant Legal Adviser for Management, advised that property purchased by a foreign embassy in Washington and used as a warehouse for aeronautical, military, and naval commissions qualified as “premises of the mission” within the meaning of the Vienna Convention on Diplomatic Relations (TIAS 7502; 23 UST 3227; entered into force for the United States December 13, 1972) and qualified for tax exemption on that basis. He stated his opinion that:
any property which the receiving state recognizes as being used for official diplomatic mission purposes qualifies for a real estate tax exemption under the provisions of the Vienna Convention. The essential ingredient is agreement, either express or implied, between the sending and receiving states. While the practice may be to list such properties in a publication such as the Blue List, such listing is not a prerequisite to the extension of a tax exemption.
In the present case, since the Department has officially recognized the Commission personnel as official members of the diplomatic mission, it follows, in my view, that property required for Commission use would be eligible for a tax exemption. I recommend, therefore, that the Department . . . request a tax exemption for the property in question from the District of Columbia Government.
Dept. of State File No. P75 0174–2261. Art. 23 of the Vienna Convention on Diplomatic Relations provides:
Article 23 1. 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.
2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving state by persons contracting with the sending state or the head of the mission.
Consular Officers and Consulates
Functions of Consuls
Protection of Nationals
On February 21, 1975, the Department of State requested the United States Embassy in Damascus to bring to the attention of the Government of the Syrian Arab Republic the well-established right of governments to be informed promptly, through their consular officials, of any detention of their nationals by a foreign state and to have prompt access to them while in custody. In addition to citing the Vienna Convention on Consular Relations (TIAS 6820; 21 UST 6820; entered into force for the United States December 24, 1969), as reflecting the widely accepted practice of civilized nations, regardless of whether they are parties to the Convention, the Department noted that rights of American nationals, including rights of notification and access, under bilateral agreements between the United States and France were continued in force between the United States and Syria upon United States recognition of Syria in 1944.
The United States Embassy had reported that it had learned that two American nationals had been detained on January 2, 1975, by Syrian internal security authorities without notification to the Embassy of their arrest. The Embassy's request for early access to the prisoners had thus far not been complied with. The Department's cabled instruction reads in part as follows:
The right of governments, through their consular officials, to be informed promptly of the detention of their nationals in foreign states, and to be allowed prompt access to those nationals, is well established in the practice of civilized nations. The recognition of these rights is prompted in part by considerations of reciprocity. States accord these rights to other states in the confident expectation that if the situation were to be reversed they would be accorded equivalent rights to protect their nation
als. The Government of the Syrian Arab Republic can be confident that if its nationals were detained in the United States the appropriate Syrian officials would be promptly notified and allowed prompt access to those nationals. The recognition of these rights is also enjoined by humanitarian considerations. Detained foreign nationals are inevitably distressed by the prospect of securing and preserving their rights in a legal system with whose institutions and rules they are not familiar, especially since they may be unable to converse in the language of the detaining state. The consul, while fully complying with the law of the detaining state, is able to assist these nationals in securing and preserving their rights, often by helping them to obtain local counsel. The consul's presence may also help assuage the distress of detained nationals.
... Recognition of the rights of notification and access is reflected in the Vienna Convention on Consular Relations, which is widely accepted as the standard of international practice of civilized nations, whether or not they are parties to the Convention. The Convention is based on the belief, as stated in the preamble, that the Convention would “contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems.” Article 36 of the Convention provides in part:
(b) if he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending state who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
Valid legal basis for the United States Government's right of notification and access also exists under bilateral agreements between the United States and Syria and France. In September 1944, in the context of recognition of the Syrian Republic by the United States Government and the agree ment to exchange diplomatic representatives, an exchange of notes between the United States and the Government of the Syrian Arab Republic expressed agreement that existing rights of the United States and its nationals would be continued and protected by the Syrian Government. The Syrian note stated in part: “It is my pleasant task to convey to you the assurances of
the Syrian Government that the existing rights of the United States and its nationals, particularly as set forth in the treaty of 1924 between the United States and France, are fully recognized and will be effectively continued and protected, until such time as appropriate bilateral accord may be concluded by direct and mutual agreement between Syria and the United States." (Bevans, Treaties and Other International Agreements of U.S.A. 1776-1949, Vol. 11, at 970_973.) Some of these rights necessarily derived from international agreements between the United States Government and France, which, prior to Syrian independence, was empowered by Article 3 of the League of Nations Mandatory Agreement with "exclusive control of the foreign relations of Syria." (Bevans, Vol. 7, at 925, 926.) The fact that United States-France agreements respecting Syria were relevant in determining rights of United States citizens in 1944 is recognized by the reference to the treaty of 1924, not otherwise relevant to this discussion, in the Syrian recognition note previously cited. Other rights of the United States Government and its nationals would be based on customary international law in effect in 1944. The Syrian recognition note, by its terms, plainly extends to legal rights derived from both sources:
(A) Notification: In September 1924, in exchange of notes between the United States Government and France, France agreed to "enjoin to the state under mandate" that: “when a person is arrested who declares to the police authorities, upon his arrest, that he is an American citizen, the local authorities should immediately communicate this declaration to the nearest American consul for confirmation.” (7 Bevans 945–948.) The undertaking contained in this exchange of notes has not been withdrawn. Rights granted to the United States Government by this undertaking were accordingly in effect in 1944 and fall within the scope of the Syrian recognition note.
(B) Access: The right of access is also covered by the Syrian recognition note.
On March 10, 1975, the United States Embassy in Damascus cabled the Department that the American consul had been granted access to the two prisoners that day, a court hearing had been set, and a court appointed lawyer had been assigned to defend the prisoners.
Dept. of State telegram 40298 to Embassy Damascus Feb. 21, 1975; Embassy Damascus telegram 925 to Dept., Mar. 10, 1975.
Leonard F. Walentynowicz, Administrator of the Bureau of Security and Consular Affairs, Department of State, testified concerning United States citizens imprisoned in Mexico, before the Subcommittee on International Political and Military Affairs of the House Committee on International Relations, on April 29 and 30 and October 22, 1975, and on January 27, 1976. Under consideration was House Resolution 313, 94th Congress, 1st Session, to