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Senator CLARK. And, therefore, article 34 would or would not apply?
Mr. MEEKER. If the tax is on the seller, then there would be no exemption. If the tax were on the purchaser, then article 34 would provide for an exemption.
Senator CLARK. Is there a problem of extraterritoriality in this treaty or convention?
Mr. MEEKER. Well, I suppose there might be said to be in that the premises of an embassy are inviolable. Article 22 says that the premises of the mission shall be inviolable. The agents of the several states may not enter them except with the consent of the head of the mission. So that to that extent there is an issue of extraterritoriality.
Senator CLARK. Does extraterritoriality still exist in any part of the world?
Mr. MEEKER. Not really. The old capitulations in Egypt and elsewhere in north Africa are now gone and the same is true of the Far East.
Senator CLARK. Mr. Meeker, in view of the lateness of the hour, I am going to ask you to give us written answers to a series of questions which we have not been able to get to, to send them down to the com-. mittee at your early convenience and indicate which, if any, you consider executive material so that it can be appropriately classified.
May I say, on behalf of my two colleagues, on this subcommittee, how grateful we are for your very candid and able exposition of this mildly complicated matter.
(The additional questions together with the answers referred to are as follows:)
ADDITIONAL QUESTIONS AND ANSWERS FURNISHED BY THE STATE DEPARTMENT
Answer. A trade mission of a foreign government in the United States, which
passports to former U.S. chiefs of mission. What does this entitle the holder of the passport to? Are there any provisions in this treaty relating to "courtesy' diplomatic passports?
Answer. There are no provisions in the Vienna Convention on Diplomatic Relations which relate to the use of "courtesy" passports. The type of passport possessed by an officer or employee of a foreign government, or the type of visa issued to him, has no bearing upon the immunities which are accorded to such personnel by the U.S. Government. The granting of privileges, exemptions, and immunities correspond with the position occupied by such persons or the activity which they are undertaking. This practice corresponds with the position taken by most foreign governments.
Question. Does article 47(2) (a) adequately protect the right of the United States to control the movement of Soviet diplomatic personnel in the United States on the same basis that the U.S.S.R. restricts the movement of U.S. personnel in the Soviet Union?
Answer. Travel restrictions on foreign diplomatic personnel may be imposed for reasons of national security pursuant to article 26 of the Vienna Convention. When travel restrictions are imposed upon personnel of a U.S. diplomatic mission abroad, article 47 (2) (a) of the convention indicates that the United States would not be discriminating as between states (and therefore in violation of the convention) when it reciprocally applied similar travel restrictions to diplomatic personnel in the United States of the state imposing such restrictions.
Question. How are waivers from immunity effected? Can an individual diplomatic agent waive immunity or must this be done by the chief of mission or the sending state?
Answer. Waivers of diplomatic immunity have been accomplished in a variety of ways in the past. Some U.S. courts have considered the bringing of an action by a diplomatic officer or employee as an implied waiver of his immunity with respect to all matters relating to or arising from the litigation. An implied waiver of immunity also results when a diplomatic officer or employee voluntarily appears to testify as a witness in any action or proceeding. Other waivers of immunity have been formally communicated by the Ambassador of the mission concerned to the Department of State. The waiver is then communicated by the Department of Justice to the appropriate judicial authority. Article 32 of the Vienna Convention makes it clear that waivers of immunity henceforth must be express. In U.S. practice, waivers of immunity are only made by the chiefs of mission of our diplomatic missions abroad, pursuant to an authorization from the Department of State.
Question. The Vienna Convention is accompanied by an optional protocol on the settlement of disputes. Is Executive H two treaties in fact? Should the Senate approve two resolutions of ratification ?
Answer. The Vienna Convention and the optional protocol on the settlement of disputes are two treaties in fact, but are so interrelated that the optional protocol could not be in force between any given countries unless the convention were also in force between such countries. It would be appropriate for the Senate to approve the convention and the protocol in one resolution of ratification, rather than in two.
Question. With respect to article 47 (nondiscrimination as between states) does the United States have any special relationships with other countries that would qualify under paragraph 2?
Answer. On the basis of treaties and other international agreements or on the basis of reciprocal practice, the United States accords free entry for household goods and personal effects on first arrival and for a reasonable period of time thereafter (usually 6 months), to all members of foreign diplomatic missions in Washington who are nationals of the sending state.
Free entry privileges subsequent to a first arrival, with some exceptions regarding automobiles and alcoholic beverages, are accorded, on a reciprocal basis, to subordinate staff personnel of the diplomatic missions of the following countries : Australia Germany
Zambia Exemptions from various taxes the payment for which, under the Vienna Convention, all members of the mission would be liable, are presently being accorded by the United States and some other countries to members of the diplomatic staff. Such exemptions are accorded pursuant to domestic law and regulations and as a matter of courtesy and comity. It is not feasible to undertake to enumerate either the countries concerned or the taxes from which exemption is accorded. Pursuant to Revenue Ruling 296, the United States exempts all members of diplomatic missions, other than custodial personnel and domestic
servants, who are not American citizens or permanent residents of the United States, from payment of certain Federal excise taxes. Such mission members are also accorded exemption from certain taxes levied by the District of Columbia.
Question. How would the nondiscrimination clause in article 47 apply to the British Commonwealth or the European communities?
Answer. It would vary country by country, depending on the provisions of foreign domestic law and of applicable international agreements between the United States and the country concerned.
Question. Why have a number of states made reservations to parts of article 37, especially paragraph 2? (Relates to privileges and immunities of the administration and technical staff of a mission.)
Answer. The reasons for the reservations doubtless vary. The majority of delegations at Vienna took the position that members of the administrative and technical staff and the service staff had no representational functions and therefore had little if any need for customs privileges. Several delegations observed that the loss of revenue from customs would be more important to their governments than the benefits they might derive from reciprocal privileges for their personnel abroad.
Question. To what extent does the convention guarantee freedom of movements of a diplomatic agent in the territory of state to which accredited? Can the United States restrict the movement of any diplomatic agents under the convention?
Answer. Article 26 provides that, subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving state shall insure to all members of the sending state diplomatic mission freedom of movement and travel in its territory. From time to time the U.S. Government has imposed travel restrictions for reasons of national security upon the travel of foreign diplomatic officers and employees in the United States. The ratification of the Vienna Convention will not affect the ability of the United States to restrict the travel of foreign diplomatic officers or employees in the United States.
Question. Do the provisions of this convention apply directly or indirectly to visiting heads of state or government? If not, what laws govern the treatment a host country is obligated to accord a visiting foreign dignitary?
Answer. The provisions of the Vienna Convention do not directly apply to visiting heads of state or heads of government. The draft legislation which the Department of State has prepared to complement the Vienna Convention will, in effect, make pertinent provisions of the convention applicable to the head of a foreign state or the head of government of a foreign state, and when they are on an official visit to or in transit through the United States, the foreign minister of a foreign government, and those members of the official party accompanying such officials.
At present, security officers of the Department of State are authorized to carry firearms for the purpose of protecting heads of foreign states, high officials of foreign governments, and other distinguished visitors to the United States and, pursuant to 5 U.S.C. 170e-1, these security officers are empowered to arrest without warrant and deliver into custody any person violating 18 U.S.C. 112. This latter statute provides that whoever assaults, strikes, wounds, imprisons, or offers violence to the person of a head of foreign state or foreign government, ambassador, or other public minister, may be fined or imprisoned. Other than these specific laws, the status of visiting heads of state or heads of government of a foreign state has not been the subject of any other statutes in the United States.
Question. In view of the United States own previously restrictive legislation against letting foreign chanceries have transmitters, why was the U.S. delegation instructed to vote against the six-power amendment making the use of transmitters subject to local law and international regulations?
Answer. The delegation was instructed to vote in favor of a provision in the convention which would permit diplomatic missions to use radio transmitters. because it was felt that the prohibition in U.S. law was contrary to our national interest and should be removed. The Departments of Defense and Justice and the FCC concurred in this instruction.
The Department of State had long considered it essential to have radio transmitters installed in U.S. diplomatic missions in various countries where the facilities or the caliber of service was inadequate. Frequently, the host government, whose permission was necessary, had been willing to grant permission only
on condition that their diplomatic missions have reciprocal rights in Washington. This we were unable to offer at the time, because section 310(a) (2) of the Federal Communications Act of 1934, as amended, was interpreted as prohibiting the use of radio transmitters by foreign diplomatic missions in the United States. Subsequent to the signing of the Vienna Convention, the 1934 Communications Act was amended to authorize a foreign government, on the basis of reciprocity, to construct or operate a low-power radio station at or near its embassy or legation in Washington.
The U.S. delegation opposed the six-power amendment, because it did not give the sending state an absolute right to operate a radio transmitter. We did not object to compliance with international radio regulations.
Question. A diplomatic agent is to deal only with the foreign ministry or the kead of state of the country of his mission. How strictly is this observed? To what extent do diplomatic agents try to influence the press, Members of Congress, and industrial leaders without going through the State Department?
Answer. It has long been established that as a general rule diplomatic officers should conduct all official business with or through the ministry of foreign affairs, except as may have been otherwise agreed.
Any case of flagrant breach of normal diplomatic practice by obviously improper contacts is dealt with by the Department by making the Department's disapproval known to the diplomatic mission concerned.
Miany diplomatic missions have press attachés and information officers whose principal duty is to deal with the news media. The Department considers that this is a proper diplomatic function, so long as the mission does not make statements or disseminate political propaganda which is objectionable to the United States.
The Department is, of course, not fully informed of the nature and substance of all discussions concerning matters of policy which diplomatic officers have with Members of the Congress and with industrial leaders. Such direct contacts, as distinct from contacts by nondiplomatic representatives of foreign governments, have not occasioned any significant complaint.
Question. What controls does the Department have over the activities of diplomatic agents? For instance, how would the State Department know whether a diplomatic agent did practice here for personal profit, any professional or commercial activity? Or how would the State Department know that the permises of a mission was “not used in any manner incompatible with the functions" of that mission?
Answer. The control the Department has over the activites of foreign diplomatic agents that if they engage in activities the Department has warned against, or might consider objectionable, the United States might request their recall or declare them persona non grata. The Department, of course, does not learn of every instance in which a foreign diplomatic agent practices some private professional or commercial activity in the United States for personal profit. However, the Department is kept generally informed of such activities. On occasion a private citizen complains to the Department regarding a diplomat's private business ventures. The matter might also be brought to the Department's attention by either the diplomatic agent concerned or the appropriate authorities, in event the diplomatic agent claimed exemption from or failed to pay taxes or comply with other applicable laws and regulations. Sometimes the activity becomes a matter of public knowledge, as in the case of a diplomatic agent who wrote a bestseller, or taught a course in a college.
Any repeated or flagrant misuse of the premises of a diplomatic mission would be altogether likely to come to the Department's attention, in one way or another.
Question. According to the delegation report, the United States was initially against the attempt to draft a convention on this subject because it doubted that the convention would be widely adhered to. What led to the change of heart?
Answer. The draft articles adopted by the International Law Commission in 1958 met many of the objections the United States previously had to the draft articles provisionally adopted by the Commission in 1957. The unanimous vote in the General Assembly in 1959 on the resolution convening the 1961 Vienna Conference indicated likelihood of general acceptance of the convention to be formulated at that conference. Additionally, it had become clear that since new states had no body of traditional law and practice to guide them it would be in the interest of both new and old states to agree on the rights and obligations of receiving and sending states.
Question. According to the delegation report, the United States, the United Kingdom, and the U.S.S.R. were the only abstainers in a vote by which the provisions of article 27 were adopted in the Committee of the Whole. What were the reasons of these three delegations for abstaining?
Answer. Article 27 was one of the articles on which there were differences of opinion between large states and small states. The United States, the United Kingdom, and the Union of Soviet Socialist Republics each maintain many large diplomatic missions abroad, and each are hosts to many diplomatic missions. They therefore each felt a special need to consider their rights and obligations under this article both as a sending state and as a receiving state.
Question. Article 27 concerns freedom of communications including by transmitter with the consent of the receiving state. In 1963, the SFRC handled a bill to amend the Federal Communications Act of 1934 to eliminate the FCC requirements that all transmitter licensees be U.S. nationals in order to make it possible for chanceries in the District of Columbia to apply for permission to operate transmitters. How many foreign chanceries have applied for authority to build transmitters? How is this new law working out?
Answer. Section 305(d) of the Communications Act of 1934, as amended, 47 U.S.C. 305(d), permits the President to authorize a foreign government, under such terms and conditions as he may prescribe, to construct and operate in Washington, D.C., a low-power radio station for transmission of its messages to points outside the United States, if the President has deemed this to be consistent with the national interest of the United States, and where such foreign government has provided substantially reciprocal privileges to the United States abroad. To date, the embassy of only one foreign government has established a radio facility under the authority of this law. The Department has, pursuant to this law, concluded reciprocal radio rights agreements with six additional countries, three of which are expected shortly to establish radio facilities in Washington. This recent amendment to the Communications Act of 1934 appears to be working out well in practice.
Question. In the event of armed conflict, may foreign diplomatic agents withdraw their private property and other assets from the United States? Is this consistent with U.S. law and practice?
Answer. We have discussed with the Treasury the effect of the convention on blocking regulations which have been or may be imposed pursuant to section 5 of the Trading With the Enemy Act of 1917, as amended (50 U.S.C., app. 5). The private property of diplomatic agents and members of the administrative and technical staff and their families is inviolable under articles 30 and 37 of the convention. However, that inviolability does not extend to assets of the mission or the sending state. Moreover, that inviolability does not extend to property in the custody of a diplomatic agent or other member of the staff which in fact belongs to his government or to third persons not entitled to the same inviolability. In the event funds in a bank account in the name of a diplomatic agent or other member of a diplomatic mission were blocked under the Trading With the Enemy Act, a license would be issued unblocking the personal funds of the mission member concerned. If the funds in question were more than a few thousand dollars, the burden of proof would be on the diplomatic agent to establish to the satisfaction of the Treasury that the funds were in fact "his" property.
There is no provision in the convention that in event of severance of diplomatic relations, the sending State concerned may withdraw its property. In this connection, article 45 of the convention provides only that the receiving state must, even in case of armed conflict, respect and protect the premises of the mission together with its property and archives.
Question. What was the practice of the United States with respect to blocking controls in World War II ?
Answer. All funds of certain foreign governments and nationals of designated countries were blocked by blanket orders. Licenses were immediately issued to release funds for expenses of their diplomatic and consular establishments in the United States and subsequently, in the case of France, in Latin America. Licenses were also issued to release funds to individual mission members for living, travel, and other personal expenses.
Pursuant to reciprocal agreements between the United States and Germany, Italy, and Japan, Axis and associated officials, their staffs, families, and servants being repatriated were permitted to take with them from the United States all their personal baggage and household effects except furniture, and had the privilege of shipping their furniture by commercial means at private expense.