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make such arrests for State or Federal violations as may serve to preserve or restore order.
Mr. Fields added the following additional comment with respect to the "one hundred foot rule":
The statute permits peaceful and orderly demonstrations within one hundred feet of a diplomatic establishment, when such demonstration does not obstruct the conduct of business at those protected premises. In the instance of your San Francisco consulate, it would appear from the photographs that the demonstrators did obstruct free access to the consular office and in such a case there would be a violation of the statute .
Dept. of State File No. P75 0134–1955. Subparagraph (c) of Sec. 301 of P.L. 92– 539 (18 U.S.C. 112(c)) reads as follows:
(c) Whoever within the United States but outside the District of Columbia and within one hundred feet of any building or premises belonging to or used or occupied by a foreign government or by a foreign official for diplomatic or consular purposes, or as a mission to an international organization, or as a residence of a foreign official, or belonging to or used or occupied by an international organization for official business or residential purposes, publicly
(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound, or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or
(2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section, shall be fined not more than $500, or imprisoned not more than six months, or both.
Privileges and Immunities
The Secretary of State, in a note dated September 25, 1975, responded to a request of September 5, 1975, from the Austrian Ambassador that consular immunities be extended to consuls of Austria in the United States equivalent to those granted to Polish and Bulgarian consular officers. The United States acceded to the request on the condition that United States consular personnel serving in Austria would receive the same immunities.
The Austrian Ambassador had requested the extension to Austrian consuls in the United States of the provisions of Article 13 of the United States-Poland Consular Convention of 1972 (TIAS 7642; 24 UST 1231; entered into force July 6, 1973) and Article 16 of the United States-Bulgaria Consular Convention of 1974 (TIAS 8067; 26 UST 687; entered into force May 29, 1975), which relate to the immunities enjoyed by consular officers and employees of the sending state and their family members. The request for extension of those immunities to Austrian consular officers was based on Article XIII of the Treaty of Friendship, Commerce and Consular Rights between the United States and Austria of 1928 (TS 838; 47 Stat. 1876; entered into force May 27, 1931). The latter Article provides that "consular officers of the High Contracting Parties shall, after entering upon their duties, enjoy reciprocally in the territories of the other all the rights, privileges, exemptions and immunities which are enjoyed by officers of the same grade of the most-favored-nation."
The Secretary's reply note stated that “[i ]n accordance with the provisions of the 1928 treaty, and in accordance with current policy of the Department of State, the request ... can be granted on the condition that United States consular personnel serving in Austria will receive the same immunities requested for Austrian consular officers in the United States."
Dept. of State File No. P75 0149_1913.
The Embassy of Australia at Washington on December 12, 1974, sent a note to the Department of State requesting confirmation of its understanding that a condominium apartment which it intended to purchase for use as the residence of the senior Australian consular representative to the United States would be exempt from real estate taxes and from taxes imposed in connection with acquisition. The note referred to the Vienna Convention on Consular Relations (TIAS 6820; 21 UST 77; entered into force for the United States December 24, 1969) to which both countries are parties and stated the Embassy's understanding that under Article 32 of the Convention the residence of the career head of a consular post of the sending state is exempt from all national, regional or municipal taxes whatsoever, other than such as may be paid for specific services rendered, on such residence owned or leased by the sending state or any person acting on its behalf. Australian consular representatives in Washington constitute a section of the Australian Embassy in Washington.
In a reply note dated January 10, 1975, the Department of State expressed the opinion that Article 32 of the Convention would not be applicable in this instance. The Department said: “As a general practice, many diplomatic missions maintain consular sections operating under the jurisdiction of a diplomatic officer who also holds consular recognition. The Department does not, however, consider such sections as being consular posts. This position is substantiated by Article 1 of the Vienna Convention on Consular Relations which defines a 'consular post' as any consulate general, consulate, vice-consulate or consular agency.”
Dept. of State File No. P75 0009–1158. Art. 32 of the 1963 Vienna Convention on Consular Relations provides in part:
Consular premises and the residence of the career head of consular post of which the sending state or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.
Horace F. Shamwell, Jr., Deputy Assistant Legal Adviser for Management, on June 3, 1975, responded to an inquiry from a law firm in New York concerning the tax exemption of Indonesianowned property used for consular purposes. The premises in question were described as having been jointly occupied by the Indonesian Consulate and the Indonesian Mission to the United Nations from 1952 until December 1964, and thereafter only by the Consulate. According to the law firm, the City of New York had denied that a tax exemption for consular premises existed before 1963, the year of the Vienna Convention on Consular Relations (TIAS 6820; 21 UST 77; entered into force for the United States December 24, 1969).
On the issue of whether an exemption from real estate taxes for consular premises existed on the basis of customary international law before 1963, Mr. Shamwell wrote:
It is the Department of State's position that under presently prevailing customary international law, as codified in the Vic enna Convention on Consular Relations of 1963, real property used for official consular purposes is entitled to exemption from payment of all national, regional and municipal taxes otherwise applicable to such real estate, and for which the owner or occupant would have a legal obligation to satisfy. The Department of State expressed this position in the amicus curiae brief submitted by the U.S. Government in the case of Republic of Argentina v. City of New York, decided by the United States Court of Appeals on July 1, 1969 (25 N.Y. 2d 252). The Court's decision in that case reflected the position of the Department of State as expressed in a letter signed by the Department's Acting Legal Adviser (Richard D. Kearney) on September 21, 1965. The following statement was included in that letter:
“[U]nder recognized principles of international law and comity the several states of the United States, as well as political subdivisions, should not assess taxes against a foreign government-owned property used for public noncommercial purposes." That letter does not, however, reflect any precise date upon which customary international law determined that consular property was entitled to real estate tax exemptions in the absence of other legal bases such as treaties or domestic law.
Prior to the drafting of the Vienna Convention on Consular Relations, the State Department had taken the position that a treaty was required before real estate tax exemptions were required to be extended by State and local governments to property used for consular purposes. Nevertheless, in its amicus curiae brief in the Republic of Argentina case the United States cited the practice of nations prior to the drafting of the 1963 Vienna Conventions as that practice related to the extension of tax exemptions. The following is taken from page 20 of that brief:
"From the start of the Commission's deliberations there was virtually complete agreement-and, consequently, little reported discussion—that consular premises owned by a foreign state were exempt from real property taxation. Thus, the rapporteur was able to state that 'he felt sure that the Commission would approve the principle of Article 26 (a precursor version of the final tax exemption provision ) since it had been accepted by a majority of states.'
While it appears that the language of the tax exemption provisions eventually adopted by the Vienna Convention presented no particular difficulties, and did in fact reflect widely accepted practice, the Department remains unable to place a precise date upon which customary international law required the tax exemption in question without benefit of treaty or other law. It is the current view of the Department that such tax exemptions do reflect contemporary practice and customary international law, and in view of this fact the Department would support the extension of such a principle even on a retroactive basis.
The United Nations General Assembly, on November 10, 1975, adopted Resolution 3375 (XXX) calling for the invitation of the Palestine Liberation Organization (PLO) “to participate in all
efforts, deliberations and conferences on the Middle East which are held under the auspices of the United Nations, on an equal footing with other parties. ..." The Resolution was adopted by a rollcall vote of 101 to 8 (U.S.), with 25 abstentions. On November 7, 1975, Ambassador Daniel P. Moynihan, U.S. Representative to the United Nations, made a statement in plenary session opposing PLO participation. He said, in part:
our policy is that any new participation at Geneva can only be the result of careful consideration, negotiation, and agreement among the parties. We are prepared to participate actively in such negotiations.
President Ford has made it clear that the United States will assist the parties in any way it can, as the parties desire, to achieve a negotiated settlement within the framework established by Security Council Resolutions 242 and 338. We are ready to encourage further negotiations between Syria and Israel. We are ready to discuss and consult with all the countries involved about the substance and form of a reconvened Geneva Conference. We are prepared to discuss how best to assure that legitimate Palestinian interests are brought into the negotiating process. ...
But we are not prepared to participate in or support changes by the General Assembly in the painstakingly negotiated framework for negotiations established by the Security Council and accepted by the parties. Nor are we prepared to support rights for one group at the expense of rights of others.
Dept. of State Bulletin, Vol. LXXIII, No. 1901, Dec. 1, 1975, p. 796. G.A. Res. 3375 provides, in operative part, as follows:
The General Assembly,
1. Requests the Security Council to consider and adopt the necessary resolutions and measures in order to enable the Palestinian people to exercise its inalienable national rights in accordance with General Assembly Resolution 3236 (XXIX);
2. Calls for the invitation of the Palestine Liberation Organization, the representative of the Palestinian people, to participate in all efforts, deliberations and conferences on the Middle East which are held under the auspices of the United Nations, on an equal footing with other parties, on the basis of Resolution 3236 (XXIX);
3. Requests the Secretary-General to inform the Cochairmen of the Peace Conference on the Middle East of the present resolution and to take all necessary steps to secure the invitation of the Palestine Liberation Organization to participate in the work of the Conference as well as in all other efforts
4. Requests the Secretary-General to submit a report on this matter to the General Assembly as soon as possible.
On December 1, 1975, the United States Government replied to a note received on November 9 from the Government of the Soviet Union on the subject of reconvening the Middle East Peace