Diplomatic Law Reciprocity

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New York University Journal of International Law & Politics

Summer, 1985

*817ENFORCING RECIPROCITYIN U.S. DIPLOMATICRELATIONS: THE FOREIGN MISSIONS ACT

OF 1982

Andrew L. Odell[FNa]

Copyright 1985 by the New York University Journal of International Law & Politics; Andrew L. Odell

I. INTRODUCTION

In 1961, an international conference in Vienna codified centuries of customary diplomatic law in the Vienna

Convention on Diplomatic Relations (hereinafter Vienna Convention). [FN1] This multilateral agreement pre-

scribes the legal standards of international diplomacy and has become close to a universal benchmark for diplo-

matic relations between governments. [FN2] In 1982, the United States adopted the Foreign Missions Act of

1982 (hereinafter the Act),[FN3]which left uncertain the United States' commitment to the regime embodied in

the Vienna Convention. Although passed ostensibly to remedy perceived inequities in the relative privileges and

immunities enjoyed by U.S. diplomats abroad, [FN4]the passage and early implementation of the Act provoked

immediate controversy and led U.S. allies and adversaries alike to question whether the Act will significantly al-

ter the conduct of U.S. diplomatic policy.

This Article, composed of six sections, briefly reviews *818 the original Foreign Missions Act, the sub-

sequent amendments to the Act passed in 1983, and the implementation of the Act during the first two years of

its operation. Following the introduction, Section Two reviews the background to the Act's passage with an em-phasis on the perceived inequities leading to its adoption. Section Three summarizes the major provisions of the

Act and the 1983 amendments. Next, Section Four examines the first two years of the Act's implementation. In

Section Five, a brief look into the special problems associated with applying the Act to United Nations Missions

is taken, in light of the unique agreements applicable to those entities. Finally, Section Six reviews the impres-

sions of diplomats who have spoken with the Author and offers the Author's conclusions and recommendations.

As discussed therein, some of the concerns voiced by foreign actors may be justified, particularly insofar as im-

plementation of the Act collides with the principles of the Vienna Convention and various U.N. agreements. In

any event, the Act will likely play an increasingly visible role in U.S. diplomatic relations. Thus, whether for-

eign criticism is justified or not, the Act is worthy of continual review by the proper Congressional committees

to ensure that it serves the purposes for which it was passed.

II. THE APPLICATION OF THE VIENNA CONVENTION IN THE UNITED STATES BEFORE THE FOR-

EIGN MISSIONS ACT

The Vienna Convention is a wide-ranging document covering many aspects of diplomatic relations. Signed

by more than 130 states,[FN5]the Convention defines the functions of diplomatic missions,[FN6]outlines pro-

cedures for the accreditation by states of mission and mission-personnel, [FN7] and specifies the types of in-

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formation that a foreign government must provide to the so-called receiving state. [FN8] Furthermore, the

*819 Convention sets standards for the sizes and locations of foreign missions. [FN9] Most important for pur-

poses of this discussion, however, the Vienna Convention establishes a series of general privileges and immunit-

ies for diplomats and foreign missions. In addition to the better known immunities enjoyed by foreign missions

such as the inviolability of mission property,[FN10]the exemption from national, regional, and municipal taxes

enjoyed by missions and mission personnel, [FN11] and the general immunity of diplomats from the criminal

jurisdiction of the receiving state, [FN12]the Vienna Convention also assigns affirmative obligations to receiv-

ing states. For example, under the Convention the receiving state must either facilitate the acquisition of prop-

erty by the foreign mission within the receiving state's territory or assist the foreign mission in obtaining acco-

modations in some other way.[FN13]The receiving state must also ensure that members of foreign missions en-

joy freedom of travel within its territory.[FN14]Moreover, even in cases of armed conflict or of severance of

diplomatic relations, the receiving state must furnish facilities to missions and their members to ensure that they

enjoy the privileges and immunities guaranteed by the Convention. [FN15]

The receiving state is also under an obligation not to discriminate among states party to the Convention.

[FN16] Two exceptions, however, to this nondiscrimination provision may apply: where the receiving state ap-plies any provision of the Convention restrictively to a sending state's mission because the sending state has ap-

plied that same provision restrictively to the receiving state's foreign mission (hereinafter reciprocity); and

where by custom or agreement states have agreed to extend to one another more favorable treatment*820than is

required by the Convention.[FN17]

The Vienna Convention has received widespread support because it embodies the long-recognized notion of

the special status of diplomatic personnel and it incorporates the concept of diplomatic reciprocity. [FN18]The

diplomat's special status ensures effective diplomatic performance. [FN19] The reciprocity provisions of the

Conventions meanwhile ensure that nations adhering to the Convention need only accomodate the foreign mis-

sion and personnel of a particular state within their territory to the extent that their own missions receive com-

parable treatment in that state.

This is not to say that the theoretically simple principle of diplomatic reciprocity is easily implemented. A

number of factors complicate matters, as the United States Government came to realize in the years following its

accession to the treaty in 1972.[FN20]Differing national laws, for example, have often posed difficult questions

for U.S. foreign policy-makers. For example, in the People's Republic of China (hereinafter PRC), foreign gov-

ernment ownership of property is restricted. [FN21] Under the Vienna Convention, therefore, the United States

might deny the PRC property ownership privileges in the United States without fear of international opprobrium.

Nevertheless, until recently[FN22]such an action was avoided so as not to generate bilateral ill-will and jeop-

ardize the consolidation of normalized relations between the two nations.

Another example of differing national laws that render difficult the implementation of the Vienna Conven-

tion may be seen in the contrast between methods of imposing sales taxes in the United States and Western

European countries. Until recent policy changes, [FN23]a European diplomat in most *821states in the UnitedStates was not required to pay ordinary state and local sales taxes. [FN24] Yet his United States counterpart in

Europe would not receive a comparable benefit in those countries that incorporate a value-added tax into the

prices of goods. [FN25] Real property taxation practices also differ across national boundaries. In the United

Kingdom, for example, unlike in the United States,[FN26]owners of property leased by diplomatic missions are

not exempt from local taxes. [FN27]


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Federalism in the United States has also complicated matters of reciprocity. State and local governments,

whose interests often do not reflect the broader foreign policy concerns of the federal government, have from

time to time enacted measures that directly affect diplomatic entities and the privileges that they are guaranteed

under the Vienna Convention. The recent attempt by the town of Glen Cove in New York to prohibit diplomatic

personnel of the Soviet Union from using the town's beaches and recreational facilities provided a vivid example

of the conflict between local and national interests. [FN28]

Consider also United States v. County of Arlington, Virginia.*822 [FN29]In that case, Arlington County

sought to impose real property taxes on a multi-unit apartment building owned by the German Democratic Re-

public (hereinafter GDR) and used exclusively to house mission personnel and their families. [FN30]In its first

consideration of the case in 1982,[FN31]the Fourth Circuit Court of Appeals held the property exempt from all

such taxes imposed after May 4, 1979 by virtue of a U.S.-GDR agreement of that date providing for prospective

reciprocal exemption from real estate taxes on property used exclusively for the purposes of diplomatic mis-

sions.[FN32]The Court of Appeals considered the case again in 1983 after Arlington County appealed the de-

cision of the District Court on remand. The lower court held that the GDR property was also exempt from prop-

erty taxes levied prior to the 1979 agreement. [FN33] The Court of Appeals upheld the District Court's determ-ination but its decision illustrates the ambiguity of the scope of the exemptions provided by the Vienna Conven-

tion.[FN34]At a minimum, although the case ended favorably for the U.S. Government, County of Arlington

under-scores the potential for acrimonious domestic litigation over the meaning of the Vienna Convention and

its impact on state and local taxation. In addition, the case presents a vivid example of local action that, left un-

checked, might have interfered with a specific obligation of the United States under the Vienna Convention, and

more generally, with the foreign policy goals of the United States.

In the United States, transient foreign policies also have complicated significantly the problem of uniform

implementation of the Vienna Convention. The marked and rapid decline in United States-Nicaragua relations

following the overthrow by popular rebellion of General Somoza in 1979 *823 served as a recent example of

this problem. The chilling of relations between the United States and Nicaragua's Sandinista regime has been

covered extensively elsewhere [FN35] and need not be recounted again here. The increasingly tense relationsformed the backdrop for Nicaragua's ouster of two U.S. officials in 1983 for allegedly instigating and coordinat-

ing a plot to assassinate Nicaragua's foreign minister. [FN36]The reciprocity principle of Article 47 of the Vi-

enna Convention would seem to have permitted a proportional U.S. response. Nonetheless, caught up in the

throes of hemispheric politics and an increasingly belligerent posture toward Nicaragua, President Reagan re-

sponded by ordering not only the expulsion of 11 Nicaraguan consular officers but also the closing of

Nicaragua's six consulates in the United States. [FN37]

Notwithstanding these difficulties in implementing the Vienna Convention, by 1981 many members of Con-

gress had come to believe that the United States was not receiving fair treatment under the reciprocity provisions

of the Vienna Convention. The Subcommittee on International Operations of the House Committee on Foreign

Affairs held hearings in 1980 on a proposed Diplomatic Reciprocity Act, a precursor to the Foreign Missions

Act. [FN38]In 1981, the Senate Foreign Relations Committee followed with hearings on S. 854, the bill thatwould eventually become the Foreign Missions Act. [FN39]

The Foreign Relations Committee (hereinafter the Committee) set forth the problems perceived in two re-

ports on S. 854. The Senate Report detailed a number of general inequities experienced by U.S. diplomats and

personnel abroad. Many nations were not making available suitable locations for U.S. missions or long-term

rights to property and *824 facilities.[FN40]These denials, the Committee indicated, were occurring in an in-


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creasing number of countries worldwide. [FN41]In Venezuela, the United States was prevented from purchas-

ing a mission staff housing unit in Caracas, whereas the Venezuelan Government had purchased without incid-

ent housing in the greater Washington D.C. metropolitan area for official purposes. [FN42]The Senate Report

also identified Algeria, Bahrain, Indonesia, Kuwait, Qatar, and the United Arab Emirates as countries in which

the United States had encountered real-estate lease and purchase barriers. [FN43] The Committee underscored

conditions in the Soviet Union and Eastern Europe under which United States' missions were barred or delayed

by government regulations from purchasing office and residential properties. [FN44] In the United States, the

Committee noted, such purchases by foreign missions were unfettered. [FN45]According to the Committee, the

problems faced by U.S. missions in obtaining appropriate locations and facilities resulted in diminished U.S. se-

curity, excessive or discriminatory costs, and inadequate facilities that decreased the effectiveness of U.S. mis-

sions.[FN46]

The Committee also identified other types of reciprocity-related problems experienced by U.S. missions

abroad in contravention of the terms of the Vienna Convention. In Eastern bloc countries, for example, the

United States is required to deal through service organizations within the relevant Ministries of Foreign Affairs

to secure basic administrative support and services, including housing maintenance and utility services, and toobtain tickets for travel, cultural and athletic performances. [FN47] The service bureaus often levy hefty sur-

charges for these simple services. The Foreign Relations Committee estimated these surcharges imposed annual

costs of hundreds of thousands of dollars on the U.S. *825Government and its employees.[FN48]

The Committee also pointed to examples of foreign taxation regimes that resulted in the disparate treatment

of U.S. mission personnel abroad. In some instances, the Foreign Relations Committee noted that U.S. diplomat-

ic personnel are made to pay host country taxes that have no equivalent in the United States. [FN49] In both

Chile and Malta, for example, U.S. embassy personnel are not exempt from gasoline taxes. [FN50] In

Yugoslavia, heating oil taxes are levied on U.S. missions. [FN51]Other unique tax burdens were cited by the

Committee. In Portugal, special construction taxes apply. [FN52] In India, mission personnel do not receive

duty-free import privileges and are not exempt from customs inspection or the imposition of certain taxes, des-

pite their official status and the guarantees of the Vienna Convention. [FN53]

The Committee found that the State Department lacked authority to impose reciprocal restrictions or condi-

tions on the foreign missions in the United States of those countries that inhibited or made U.S. mission transac-

tions unnecessarily expensive.[FN54]The State Department was capable of declaring foreign mission personnel

personae non grata or barring the country from using property in the United States. But, because of the severity

of these measures, neither of these remedies was routinely used. [FN55]In order to fill this gap, S. 854 proposed

the establishment of an Office of Foreign Missions (hereinafter OFM) within the Department of State. [FN56]

The Committee believed that the new office was essential because unlike many countries in which U.S. mission

personnel were experiencing difficulties, the United States did not have one central agency to oversee and regu-

late the *826 operations of foreign missions. [FN57]The new office would operate under the direction of the

Secretary of State to ensure both that the operation of diplomatic missions within the United States did not de-

tract from U.S. national security[FN58]and that a program of sanctions and negotiations would be implementedto bring about a truer regime of diplomatic reciprocity. [FN59]The specific mechanisms adopted by the bill are

discussed in Section Three below.

Thus, the Foreign Missions Act was intended to provide the State Department with additional leverage to re-

move restraints on and lessen the costs of operating U.S. missions abroad. With a new agency dedicated to mon-

itoring and ensuring reciprocity, the bill's supporters hoped that the operating conditions of foreign missions in


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the United States could be made to reflect the operating condition of U.S. missions abroad. It was hoped that this

new quid pro quo approach would ultimately break down some of the barriers placed before U.S. missions by

uncooperative hosts.[FN60]

The bill was voted out of the Foreign Relations Committee in November 1981, and was also considered and

approved by the Committee on Governmental Affairs.[FN61]The bill was then approved by the Senate in June

1982. [FN62] Following brief hearings in the Committee on the District of Columbia, [FN63] the full House

passed the Foreign Missions Bill as part of the State Department Authorization Act for 1982. [FN64] *827After

conference committee negotiations, the Act was adopted by both Houses and signed by the President.[FN65]

In 1983, amendments to the Act were adopted by both Houses.[FN66]The amendments set forth the quali-

fications for the Director of the new Office of Foreign Missions. Directors were to have at least ten years of ex-

perience in the Foreign Service, significant management experience, and experience in countries where U.S.

missions had had problems in securing cooperation from host governments. [FN67] A 1984 amendment,

however, struck out these requirements. [FN68] The 1983 amendments also added authority for the OFM to

monitor the liability insurance coverage of foreign mission personnel and to impose surcharges on foreign mis-

sions whenever their employees caused personal injury or property damage while operating motor vehicles.

[FN69]

III. THE FOREIGN MISSIONS ACT OF 1982: THE SECRETARY OF STATE'S BROAD DISCRETIONARY

POWERS AND THE ROLE OF THE OFFICE OF FOREIGN MISSIONS

The Foreign Missions Act of 1982 attacks the inequities in diplomatic reciprocity found by Congress

through the establishment of a new Office of Foreign Missions within the Department of State. [FN70]In addi-

tion, the Act granted broadbased powers to the Secretary of State to regulate the privileges and immunities en-

joyed by foreign missions and mission personnel within the United States. [FN71]

The OFM is headed by a Director appointed by the President with the advice and consent of the Senate.[FN72]Indicative *828 of strong congressional sentiment in the area, the statute specifies that the Director of

OFM is to hold the rank of ambassador.[FN73]The Act charges the OFM with two general tasks: (1) providing

assistance to federal, state, and local agencies in the ascertainment and provision of benefits and privileges to

which foreign missions are entitled; and (2) assisting the delivery of such benefits in accordance with the stand-

ards of the Act.[FN74]

The Act directs the Secretary of State to determine, by considering four factors,[FN75] whether a foreign

mission or international organization and its missions must obtain benefits through the OFM on terms approved

by the Secretary[FN76]and whether such a foreign mission must comply with any terms and conditions as the

Secretary may determine before executing or performing any contract in the United States, including the acquisi-

tion, retention, or use of any real property. [FN77]The four criteria to be considered by the Secretary are very

general, [FN78] save one: the Secretary may impose such conditions and regulations to adjust for costs andprocedures of obtaining benefits for missions of the United States abroad. [FN79]

The Secretary's regulatory power over foreign and international missions in the United States [FN80]may

not be preempted by any other agency. The Act sets forth the specific terms and conditions that the Secretary

may impose on foreign missions' transactions in furtherance of the Act's general purpose. Essentially, the discre-

tionary powers of the Act allow the Secretary to: conditionally approve or disapprove*829 altogether transac-


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tions sought to be executed by foreign and international missions; [FN81]impose surcharges on transactions of

missions to reflect similar surcharges paid by U.S. missions and mission personnel abroad; [FN82]require for-

eign missions to notify OFM of insurance coverage of mission members [FN83]and pending real property ac-

quisitions;[FN84]and issue regulations as he or she sees fit to effect these powers.[FN85]

The Secretary's power to regulate and oversee the activities of foreign and international missions is ex-

tremely broad not only because the provisions of the Act are loosely stated,[FN86]but also because the defini-

tions in the Act are themselves fluid. The benefits which the Secretary's regulations and oversight concern in-

clude the acquisition of real property by purchase or lease and the acquisition of public services.[FN87]Other

benefits included on the Act's laundry list are the purchase of supplies, [FN88] transportation and travel ser-

vices, [FN89] and the hiring of part-time employees. [FN90] Furthermore, the Secretary may designate other

benefits covered by the Act. [FN91] Clearly then, in order to guarantee diplomatic reciprocity, the Secretary

may inject OFM review into almost any commercial transaction that a mission undertakes.

Similarly broad is the Act's definition of a foreign mission: any official mission to the United States in-

volving diplomatic, consular or other governmental activities of a foreign government. [FN92] Apart from the

definition of foreign mission, the Secretary may apply the Act and regulations promulgated thereunder to any

international organization or official mission of such an organization.[FN93]

The general powers of the Secretary and OFM mentioned*830above are worthy of further elaboration, par-

ticularly where they concern more clearly specified realms of State Department power. Foremost among these

provisions is the section of the Act dealing with real property acquisitions by foreign missions. [FN94]Under

section 205 of the Act, the Secretary may require a foreign mission to notify OFM before it acquires any real

property.[FN95]If the Secretary requires such notification, then the mission must wait up to 60 days before ex-

ecuting any contracts, proceedings or applications related to a proposed transaction. [FN96]During that 60 day

period, the Secretary may disapprove the transaction or attach terms and conditions to its execution in order to

further the goals of the statute. [FN97] The Secretary's power to oversee real-estate acquisitions goes even fur-

ther: he or she may require any foreign mission to divest itself, or forego the use of any real property acquiredout of the scope of the notification provisions. [FN98]Such divestiture may also be ordered if the acquisition or

use of the property will exceed limitations placed on real property available to a United States mission in the

state of the foreign mission.[FN99]

In addition to these approval and veto powers over realestate acquisitions, the Secretary and OFM may also

make their voices heard in local proceedings concerned with the siting of foreign missions. Although the statute

purports not to preempt any state or municipal law or governmental authority regarding zoning, land use, or the

general welfare,[FN100]the Secretary may deny any benefit to a foreign mission and the Secretary's decision

in such regard is final. [FN101]Thus, given the broad definition of benefit provided in the Act, for all intents

and purposes, the Secretary can affect the outcome of siting decisions by, for example, imposing prohibitive

*831conditions on the purchase of property by a foreign mission in a particular area because that area provides

benefits not available to U.S. foreign missions and personnel abroad. [FN102]

The other major area of State Department power over the operation of foreign missions specified in the Act

concerns the liability insurance converage held by foreign mission personnel. [FN103] As a result of the 1983

amendments to the Act, the head of a foreign mission must promptly notify the OFM director of the expiration

or termination of any liability insurance coverage held by a member of the mission, or by a member of his or her

family.[FN104]Before February 1st of every year, moreover, the head of every foreign mission in the United


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States must prepare and send to OFM a report listing motor vehicles, vessels, and aircraft registered in the

United States by members of the mission and their families. [FN105] This list must contain specified informa-

tion including the terms of the insurance policy associated with each vehicle. [FN106]

Under the same section of the Act, the Director of OFM is directed to impose a surcharge or fee on a mission

if a member of that mission: (1) is at fault for personal injury or property damage arising out of the operation of

a vehicle; (2) is not covered by liability insurance; and (3) has not satisfied a court-rendered judgment or is not

legally liable. [FN107]The amount of this surcharge is to be equivalent to the unsatisfied portion of the judg-

ment or, if there is no judgment, an estimated amount of damages incurred by the individual who suffered such

damage.[FN108]All monies collected thereby may be used by OFM only to compensate the victim or his or her

*832estate.[FN109]The insurance liability surcharge provisions of the Act are particularly novel and thus, not

unexpectedly, the subject of controversy. The issues raised by these provisions are discussed further in Section

Six below.

Thus, the Act goes a long way to provide the State Department with the authority to redress the inequities in

diplomatic reciprocity that the Act's sponsors perceived. Only limited by the Act's directive that the Secretary

act so as to facilitate U.S. foreign relations, protect the interests of the United States, better effect diplomatic

reciprocity and assist in resolving disputes affecting the United States, [FN110]the Secretary of State and OFM

are given virtually unbridled discretion to impose charges and conditions on actions of foreign missions and

their personnel.

Insofar as the Act's liability insurance coverage provisions are concerned, moreover, the OFM is not even

permitted discretion to decide whether to impose surcharges when a foreign diplomat causes injury as a result of

his operation of a motor vehicle, and does not compensate the victims of such injury. In such a case, the imposi-

tion of fees is mandatory. [FN111]The Act is strong medicine to cure what Congress believed were the ills of

the Vienna Convention regime as applied by some foreign nations. The next section addresses the manner in

which the Act has been put into effect.

IV. IMPLEMENTATION OF THE FOREIGN MISSIONS ACT: THE FIRST TWO YEARS

A. Implementation of the Act: Generally

Although the OFM has existed for only two years, it has already begun to apply its mandate widely. To en-

sure that its actions are coordinated with the foreign policy aims of the national security bureaucracy, OFM has

assembled an Interagency Liason Group (hereinafter ILG) to advise it. [FN112]The membership of the ILG in-

cludes representatives from the *833 U.S. Customs Service, the Defense Intelligence Agency, the Armed Ser-

vices, and the Federal Bureau of Investigation.[FN113]

The ILG reported in early 1984 that OFM had contributed to achieving U.S. national security goals througha number of its actions aimed particularly at Soviet diplomats. [FN114]For example, OFM now requires that

mission personnel from several countries, notably the Soviet Union, provide advance notice of travel itineraries

to OFM and that these officials obtain travel tickets and public accomodations through the OFM service bureau.

[FN115]ILG members may review all travel related material and may request changes in itinerary, method of

travel and even the postponement or denial of a travel request for national security reasons. [FN116]Moreover,

OFM is now requiring citizens of East Germany, Poland, Czechoslovakia, and Bulgaria to make travel arrange-


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ments within the United States through the State Department. Other travel curbs are being placed on diplomats

from Cuba, Iran, North Korea, and other nations. [FN117]

In addition, OFM has also targeted the Soviet Union by compiling a closed-area map which specifies those

areas in the United States that are off-limits altogether to Soviet personnel. OFM distributes this map and other

information to U.S. counterintelligence units to enable them to better monitor the movements of Soviet person-

nel. [FN118] These national security aspects of OFM operations are summarily authorized by the Act.

[FN119]More specific, however, is the Act's authorization of OFM oversight and regulation to foster diplomatic

reciprocity.[FN120]It is in this realm that OFM has conducted most of its activities.

Pursuant to the directives of the Act, the State Department has required advanced notice of real estate trans-

actions by foreign and international agency missions. By February 1984, 125 proposals had been received and

most have been *834approved.[FN121]In several cases, however, OFM has exercised its power to modify and

to veto transactions for reasons of reciprocity. Czechoslovakia's 1983 submission of architectural plans for a

25-unit residential apartment building on property that it already owned in Washington D.C., was denied be-

cause the U.S. Embassy in Prague had met with resistance from Czech authorities when it attempted to acquire

new property and to maintain previously acquired property. [FN122] Similarly, OFM denied a request by the

PRC to purchase an apartment building to house embassy staff because until late 1984 the United States was not

permitted to purchase realty in the PRC. [FN123] Until that date, the PRC was accordingly only permitted to

lease real property in the United States. [FN124]Now, the PRC allows the United States to own structures, but

not land, in China. As a result, the PRC may now buy buildings, but not land, in the United States.[FN125]The

Soviet Mission to the United Nations was also denied permission to purchase apartments in New York City, due

to unspecified difficulties encountered by the United States in purchasing real property in Moscow. [FN126]

OFM has also used its approval powers as a bargaining chip in negotiations initiated by U.S. missions abroad to

obtain foreign real property. Algerian requests to purchase real property were held up until U.S. property acquis-

itions were facilitated in those countries.[FN127]

In addition, OFM has applied its broad powers to levy surcharges on foreign missions for various privilegesand services reflective of fees paid by U.S. mission personnel abroad. In 1983, OFM required personnel of the

missions and interest sections of nine countries to make travel and public accomodations arrangements through

OFM and to pay service surcharges to OFM.[FN128]In each case, OFM imposed these fees for these services

on these countries to *835recoup revenues expended by the United States for similar services in these countries.

[FN129] Furthermore, reflecting similar delays experienced by U.S. mission personnel in certain countries,

OFM has delayed the clearance through U.S. Customs of the household effects of certain nations' diplomats.

[FN130]When OFM believed that tax exemption privileges were being abused, it denied two nations' diplomats

access to bonded warehouses.[FN131]

OFM has also acted preliminarily on the tax front. An OFM panel has put forward a plan to: (1) deny, ac-

cording to a proportional formula, federal and local tax exemptions to foreign mission personnel from nations

that impose valueadded taxes on U.S. installations and personnel overseas; and (2) levy surcharges on foreignmissions' capital construction projects proportional to those paid by U.S. missions abroad. OFM estimates that

such a program will recoup a substantial percentage of the 15 to 20 million dollars that OFM estimates the U.S.

Government pays annually as a result of similar taxes levied abroad. [FN132]

OFM has involved the private sector as well in its efforts to enforce diplomatic reciprocity. It is not clear

what specific legal actions the State Department might take against a private party that refused to cooperate with


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an OFM request to diminish or cease providing services to a particular mission. This is due to the fact that OFM

has not had to initiate any enforcement proceedings under the Act as of this date because private actors have so

far been shown willing to cooperate with OFM requests. [FN133]Following private briefings, utility companies

have cooperated, for example, in the curtailment and withholding of telephone and telegraph services from

apartments rented by the Czechoslovak Government in Washington in retaliation for the failure of Czech offi-

cials to approve telephone service for two U.S. embassy apartments in Prague. [FN134] Furthermore, in re-

sponse to measures taken by the Cuban Government to interrupt communications.*836 between the U.S. In-

terests Section in Havana and the State Department during the 1983 Grenada invasion and at other times, OFM

has arranged to cut communications service to the Cuban Interest Section in the United States should any further

Cuban interference occur.[FN135]

As yet, OFM has just begun to put into effect its mandate to monitor the liability insurance coverage of for-

eign mission personnel and to impose surcharges on mission officials and employees responsible for personal

and property injuries caused by their operation of motor vehicles. OFM has established an office of motor

vehicles which records titles, registration, licensing, and insurance information on the more than 25,000 vehicles

owned or operated by foreign mission personnel and their families. [FN136] This office will monitor problemsexperienced by U.S. mission personnel abroad in acquiring and importing personal vehicles and will respond to

these difficulties by imposing similar restrictions on foreign mission personnel in the United States. [FN137]

The new office has already begun to issue country-designated license plates to all vehicles registered by foreign

mission personnel. [FN138]OFM also plans to develop what it terms a comprehensive plan of insurance for

foreign mission personnel. The program, as currently envisioned, will require that all foreign mission personnel

operating motor vehicles carry a minimum of $300,000 liability coverage.[FN139]To date, however, OFM has

not activated its authority to impose surcharges on foreign mission personnel who cause injuries while operating

motor vehicles but who do not compensate victims. It remains to be seen whether any attempt by OFM to im-

pose such surcharges will be met with resistance in the diplomatic community.

B. Applying the Statute: the Libyan Cases

The first use of the Foreign Missions Act in relation to a proposed real estate acquisition by a foreign mis-

sion occurred*837in June 1983,[FN140]following the purchase, in late 1982, of a mansion by the Libyan Gov-

ernment in Englewood, New Jersey. [FN141]The mansion was to be used ostensibly for recreation by Libyan

delegates to the United Nations and their families.[FN142]Englewood officials denied the Libyans' application

for an exemption from local property taxes because they believed that the diplomatic uses of the mansion would

be at best peripheral and therefore did not warrant an exemption. [FN143]Englewood officials then asked that

the State Department use its authority under the Foreign Missions Act either to rescind the sale of the mansion

or to restrict its use.[FN144]

OFM responded by official notice to Ali. A. Treiki, Libya's then senior U.N. diplomat (and present foreign

minister), informing him that the 25-room house would be offlimits for persons other than Treiki and his family.

Membership and staff of the Libyan Permanent Mission to the United Nations and any other agency of the Liby-

an Government were not to use the property even for personal purposes.[FN145]

The Libyan Mission objected vehemently to the restrictions in letters to the State Department and to the

United Nations Committee on Relations with the Host Country. [FN146]The Libyans argued that the Foreign

Missions Act did not apply to the Englewood purchase because it had occurred*838 prior to January 1983, the


17 N.Y.U. J. Int'l L. & Pol. 817



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effective date of OFM regulations requiring U.N. missions to notify the State Department of impending real es-

tate transactions.[FN147]Thus, since the Englewood transaction was completed prior to that date, the Act was

inapplicable.[FN148]Moreover, the Libyan U.N. Representative argued, OFM had taken longer than 60 days

from the time that the Libyan Mission had actually notified OFM of the pending transaction (in December 1982)

and therefore could not stop the transaction under the Foreign Missions Act, even if the Act did apply to the

transaction. [FN149] Finally, Libya argued that the proposed restrictions violated the Vienna Convention, the

Charter of the United Nations, and the Agreement Between the United States of America Regarding the

Headquarters of the United Nations[FN150]between the United Nations and the United States. The Libyans did

not, however, set out their detailed reasoning in regard to these alleged Convention violations. In essence, the

Libyans asserted that the United States had allowed its tense bilateral relations with Libya to interfere with its

multilateral obligations to the United Nations and its members. [FN151]

The controversy continued with additional exchanges of letters between the United States Mission to the

United Nations and the Libyan Mission. In September 1983, the U.S. accused the Libyans of violating the re-

strictions of the State Department's June 10 letter. [FN152]At the suggestion of the United Nations' Secretary-

General, the parties held discussions chaired by the Legal Counsel to the United Nations. [FN153] *839

As aresult, the United States issued a new set of restrictions on the use of the mansion. While restricting the Perman-

ent Representative's use to a maximum of two weekends per month, the State Department acceded to the use of

the unit by other Libyan Mission personnel provided both that OFM was notified of their intention to use the

mansion at least 48 hours in advance of their actual use, and that during such use the Permanent Representative

remained on the premises. [FN154]Curiously, the United States then asserted its authority to impose these con-

ditions under the laws of the United States, not the Foreign Missions Act. [FN155]Possible explanations for

this change in position are ventured in the following section.

The Libyans continued to object, taking particular umbrage at the restrictions placed on the Permanent Rep-

resentative, Libya's highest-ranking diplomat in the United States.[FN156] The Libyans submitted their objec-

tions to the Secretary-General in late December 1983, again arguing that the Foreign Missions Act could not be

applied to United Nations missions.[FN157]They asked the United Nations to arbitrate the matter and sugges-ted that a request be made of the General Assembly, if necessary, to seek an advisory opinion from the Interna-

tional Court of Justice.[FN158]

Since then, the State Department has not retreated from its position of late 1983 with respect to the use of the

Englewood mansion. And, to enforce its position, OFM arranged to deny utility services to the mansion if the

mansion was used outside of the strictures of the State Department's December *840 1983 letter. According to

OFM, negotiations continue to this date. [FN159]

OFM again focused on the Libyan Mission to the United Nations in mid-1984, after the Mission sought a

certificate of occupancy from the City of New York for a nearly completed building that the Mission planned to

use as its new headquarters. [FN160] Amid rising concern in Washington over alleged direct Libyan involve-

ment in international terrorism,[FN161]the State Department sought information from the Libyan Mission onits intentions for the building. [FN162]The Libyan Mission contended that it had already provided this informa-

tion and that it had told the Department that it intended to use the structure for Mission offices and for the resid-

ence of Libya's U.N. Ambassador.[FN163]The State Department confirmed that it had received the information

but deemed it unsatisfactory.[FN164]

Although the Foreign Missions Act protects the authority of localities over land-use decisions, [FN165]


17 N.Y.U. J. Int'l L. & Pol. 817



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OFM was able to obtain the cooperation of the City of New York, which dispatched police units to the not yet

completed tower to prevent further construction.[FN166]In addition, the certificate of occupancy was delayed.

[FN167] Following New York City's actions, OFM's legal counsel indicated that the Libyan Mission submitted

the information sought by the Department. The OFM accordingly removed its request and the Libyans received

*841their permit.[FN168]

The use of the Foreign Missions Act in the Libyan case demonstrates the breadth and potential power of the

State Department's new authority. Even where matters of diplomatic reciprocity appear not to be involved, the

Department may delay and restrict the commercial transactions of foreign missions, including U.N. missions, on

grounds of a threat to national security. But the U.S. legal position in the Libyan cases also underscores the po-

tential conflict between the Foreign Missions Act and international diplomatic law. This potential conflict is dis-

cussed in more detail in Section Six. In the next section, as a prelude to this general discussion, the special prob-

lems associated with applying the statute to U.N. missions is briefly reviewed.

V. APPLICATION OF THE FOREIGN MISSIONS ACT TO UNITED NATIONS MISSIONS: SPECIAL

PROBLEMS

The Libyan cases not only illustrate the new powers of the State Department granted by the Foreign Mis-

sions Act, but also indicate that there are special problems associated with the application of the statute to

United Nations missions. In the Libyan cases, the State Department applied the Act's provisions to the Libyan

Permanent Mission to the United Nations out of general concern with Libya's alleged support of international

terrorism. [FN169] The United States had, of course, already severed diplomatic ties with Libya in 1981

[FN170]and therefore did not need to concern itself with any Libyan embassy or consulate in other parts of the

United States. Although this fact made OFM's monitoring task easier, it also led to OFM testing the Act in a

complicated theater, one in which three international agreements operate.

The United Nations Charter[FN171]provides in Article 105 that r epresentatives of the Member of the

United Nations shall enjoy such privileges and immunities as are necessary for the independent exercise of theirfunctions in connection *842with the organization.[FN172]

The second agreement important to the status of U.N. Missions is the Convention on the Privileges and Im-

munities of the United Nations.[FN173] Article IV of that Convention provides to representatives of members

of the United Nations virtually the same privileges and immunities in the conduct of U.N.-related affairs as are

guaranteed foreign diplomats by the Vienna Convention. [FN174]

Also relevant to the application of the Act to U.N. missions is the Agreement Between the United States of

America Regarding the Headquarters of the United Nations. [FN175] In that Agreement, every designated rep-

resentative of a U.N. Member is: entitled in the territory of the United States to the same privileges and im-

munities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.

But,

. . .In the case of Members whose Governments are not recognized by the United States, such priv-

ileges and immunities need be extended to such representative, or persons on the staffs of such represent-

atives, only within the headquarters district, at their residence and offices if outside the headquarters dis-

trict, in transit between the residences and such residences and offices, . . . [emphasis added]. [FN176]

As a result of these three agreements, the United States has obligated itself to accord to U.N. missions and


17 N.Y.U. J. Int'l L. & Pol. 817



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their personnel the privileges and immunities generally enjoyed by foreign diplomats. This commitment extends

within the United Nations headquarters district to even those nations with which the United States no longer has

diplomatic relations*843 provided that such nations are U.N. members. [FN177] And, while it is true that the

privileges and immunities enjoyed generally by foreign diplomats are provided for chiefly in the Vienna Con-

vention, these U.N. agreements differ somewhat from the Convention and present special legal problems in ad-

dition to those discussed in the next section. These special legal problems relate primarily to the role of diplo-

matic reciprocity itself in relation to the United Nations. Unlike the Vienna Convention, which contains a reci-

procity provision allowing a signatory to impose otherwise illegal restraints on the diplomats and missions of a

foreign nation where similar restraints have been placed on the signatory's diplomats and missions by that for-

eign country,[FN178]the U.N. Charter, in Article 105, stipulates only that Members must accord all privileges

and immunities necessary for the accomplishment of U.N. mission purposes.[FN179]The obligation is not con-

ditional and seems to require equal treatment of all U.N. members' representatives.

The Headquarters Agreement similarly requires, by virtue of Article V, section 15, that the representatives of

U.N. members receive . . . the same privileges and immunities, subject to corresponding conditions and obliga-

tions as the United States accords to diplomatic envoys accredited to it.[FN180] Again, the language does notseem to allow much leeway for unequal treatment by the United States of U.N. missions on the basis of reci-

procity principles.

These interpretations of the U.N. agreements are supported by a number of commentators. In 1948, the Legal

Advisor to the State Department testified that [i]t seems clear that the Charter of the United Nations does not

permit the imposition of conditions of reciprocity on the granting of privileges and immunities under Article

105.[FN181]He continued,*844 explaining that any other interpretation would run counter to the purposes of

Article 105: to provide for the granting unconditionally by Member States of certain privileges and immunities

to the United Nations so that it may function effectively as a world organization untrammelled in its operation

by national requirements of reciprocity or national measures of retaliation among states. [FN182]With respect

to Section 15 of the Headquarters Agreement, the same Legal Advisor indicated that the language subject to

corresponding conditions and obligations modifying the guarantees of the Section was not intended to providefor the cancelling of privileges and immunities, [FN183]but instead was aimed at members' rights to declare

diplomatspersonae non gratae. [FN184]

The United Nations has agreed with these interpretations. In 1967, the Yearbook of the International Law

Commission noted that the Secretariat understood that the privileges and immunities granted . . . should not be

subject to particular conditions imposed, on a basis of reciprocity, upon the diplomatic missions of particular

states.[FN185]

Thus, in all likelihood, the reciprocity provisions of the Foreign Missions Act may not be applied to U.N.

missions in consonance with the U.N. Charter, the Convention on Privileges and Immunities of the United Na-

tions, and the Headquarters Agreement. Exactly how a conflict between the Act and the U.N. agreements would

be approached, much less resolved, however, is difficult to predict, for the United Nations Charter provides that:[T]he General Assembly may make recommendations with a view to determining the details of the application

of paragraphs 1 and 2 of this Article.[FN186]

*845 In the Libyan cases, the State Department probably need not have worried over General Assembly in-

terpretation of the Foreign Missions Act, as Libya is not a nation around which many countries of the world

rally. Nevertheless, future application of the statute to U.N. missions may engender more controversy in the


17 N.Y.U. J. Int'l L. & Pol. 817



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General Assembly, a factor to be considered by U.S. policy-makers, on a case-by-case basis.

VI. THE FOREIGN MISSIONS ACT AND THE VIENNA CONVENTION: LEGAL AND POLITICAL CON-

CLUSIONS

The Foreign Missions Act was passed to provide the State Department with additional leverage to bring

about a regime of true diplomatic reciprocity and to ensure that the operations of foreign missions in the United

States did not detract from U.S. national security interests. [FN187]The short history of the Act's application

demonstrates that it indeed contains potent weapons employable toward these ends. [FN188] Nevertheless, as

foreign and U.S. diplomats have noted in conversations with the Author, [FN189]the Act, if used without ap-

propriate discretion, may run contrary to the United States' multilateral obligations, and thus contribute to the

breakdown of the Vienna Convention regime. If other states believe that the United States is not committed to

this regime, these observers fear, they may pay less heed to the Vienna Convention's guarantees and, as a result,

diplomacy will suffer. Are these claims justified? The answer to this question consists of at least two stands: one

legal and one political.

A. Legal Issues

Unlike the U.N. agreements discussed in Section Five, the Vienna Convention allows for the discriminatory

treatment of different foreign missions on grounds of reciprocity. [FN190] *846 Nevertheless, when examined

in light of the Convention, the Act still presents several troubling legal issues.

One of these issues concerns the power of the Secretary of State to delay for 60 days the approval of pro-

posed realestate transactions of foreign missions.[FN191]Articles 21 and 25 of the Convention indicate that:

the receiving State shall either facilitate the acquisition on its territory, in accordance with its laws,

by the Sending State of premises necessary for its mission or assist the latter in obtaining accommodation

in some other way . . . and shall accord full facilities for the performance of the functions of the missions.

[FN192]

Where a delay in the approval of a proposed real-estate transaction leads to a foreign mission's loss of an op-

portunity to secure accommodations, due, for example, to tight market conditions, this provision of the Act

might conflict with these articles of the Convention.

The Secretary's powers to authorize the disposition of property belonging to a foreign mission where diplo-

matic relations have ceased between the sending state and the United States [FN193]appear also to conflict with

the Vienna Convention. Article 45 of the Convention states that if diplomatic relations are broken off between

two States, or if a mission is permanently or temporarily recalled . . . the receiving state must, even in a case of

armed conflict, respect and protect the premises of the mission, together with its property and archives.

[FN194]Or, alternatively, the Convention allows the sending state to entrust its premises to a third state accept-able to the receiving state. [FN195]

The Act, meanwhile, authorizes the disposal, without the consent of the sending state, of foreign mission

property one year from the date diplomatic relations are terminated. [FN196]Insofar as the exercise of this stat-

utory authority is a discretionary matter, conflict with the Vienna Convention *847 is not guaranteed. On its

face, nevertheless, this section of the Act is inconsistent with the Convention.


17 N.Y.U. J. Int'l L. & Pol. 817



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Furthermore, OFM's power to impose surcharges on foreign mission members who have not satisfied court-

rendered judgments in connection with motor vehicle mishaps [FN197]may conflict with Article 31 of the Con-

vention, which provides for diplomatic immunity from criminal, civil and administrative jurisdiction of the re-

ceiving state.[FN198]The Act permits the Director of OFM to impose fees on a mission to cover court-rendered

judgments against a member of a foreign mission judged, even by default, to be liable for injuries sustained by

an individual arising out of the operation of a motor vehicle by the member. [FN199]This provision dilutes con-

siderably the insulation from host-state jurisdiction afforded the foreign diplomat by Article 31, since jurisdic-

tional immunity is of little import to diplomats if they are compelled to pay in kind for liabilities that might oth-

erwise only be enforced in the absence of such immunity.

Article 31 protections are diluted further by the OFM Director's power under the Act to estimate according

to an unspecified standard the amount of damages incurred by the victim of any injury caused by the operation

of a motor vehicle by a foreign mission member in the event that no court-rendered judgment assesses such

damages.[FN200]Thus, even if a diplomat is able to quash a legal action by successfully arguing in a special

appearance before the bench that Article 31 prevents the court from exercising jurisdiction over the diplomat, he

may still be subject to effective jurisdiction by the mechanism of OFM award assessment. Although technicallyjurisdictional immunity will not have been violated in *848 such an instance, the spirit of Article 31 runs

counter to the Act's extra-judicial damage assessment mechanisms.

To be sure, OFM may avoid these legal collisions with the Convention through careful implementation of

the Act. Its 60-day consideration period for proposed real-estate transactions by foreign missions can be abbrevi-

ated or ignored in cases where delay would jeopardize the completion of a transaction due to tight real estate

market conditions. Similarly, to avoid violating Article 45 protections of mission property, OFM might actively

seek out third-party agents acceptable to the sending state to take custody of property in the United States of na-

tions with which the United States has severed diplomatic ties. [FN201] Finally, OFM might only exercise its

authority to levy fees on foreign missions for motor vehicle injury awards where the defendant diplomat waives

his diplomatic immunity[FN202]or where the accident at issue arose from non-official use by the diplomat of a

motor vehicle.[FN203]

These conflicts between the Foreign Missions Act and the Vienna Convention will, of course, be alleviated

by the Convention's reciprocity provision[FN204]in cases where OFM applies its powers in response to the ex-

ercise of similar powers by foreign governments against U.S. missions. But the problems discussed above will

remain significant when the State Department employs the Act in furtherance of national security goals alone.

In any event, whether OFM uses the powers contained in the Act to ensure diplomatic reciprocity or national

security, political problems tied to the Act's implementation must also be considered by OFM and the State De-

partment.

*849B. Political Issues

The application of the Act to U.N. missions is sensitive not only because relevant international law conflicts

with the Act's reciprocity rationale, but also for political reasons. Should the United States begin to pressure

U.N. missions by using the Act's mechanism it may engender more ill-will in a body already filled with enmity.

The U.S. should also be wary of suggesting a less than complete commitment to the United Nations' effective

operation. The Author's discussions with U.N. diplomats confirms the seriousness of this concern. [FN205]Al-

though not many states rallied to Libya's defense, a number of U.N. representatives have expressed concern over


17 N.Y.U. J. Int'l L. & Pol. 817



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the precedent set by the Libyan cases. [FN206]When will U.S. national security interests next prompt the block-

age of ordinary real estate transactions and at which countries will such efforts be aimed? Could not the United

States satisfy its legitimate fears of official support for terrorism through other means, such as increased monit-

oring of suspect embassies by the FBI? These are some of the questions on U.N. representatives' minds and

worthy of consideration by the United States Government. Congress seemed to recognize the special legal and

political problems associated with application of the then proposed Act to U.N. missions. The Senate Foreign

Relations Committee called for the application of the Act to international organizations to a limited extent

where necessary to effect the policy of the bill. [FN207] The State Department should heed this directive to

prevent further deterioration of U.N.-U.S. relations.

Outside of the U.N. context also, careful application of the Act is called for to ensure that U.S. allies do not

become the object of the Act. The Act was adopted chiefly in response to transgressions against U.S. missions

abroad by Eastern bloc nations. Legitimate variations in real-estate law across national boundaries should not

alone serve to activate OFM reciprocity powers. Calculated schemes of harassment against U.S. missions by ad-

versary governments, on the other hand, should prompt OFM action under the Act. In short, though perhaps ob-

vious, it is important for OFM not*850

to enforce literal reciprocity for its own sake, at the risk of contributingto tension between the U.S. and its allies.

C. Conclusion

In the first two years of operation the Foreign Missions Act in many regards has served its purposes effect-

ively. An office in the State Department now has oversight and regulatory authority over foreign missions' oper-

ations where no such centralized control previously existed. This centralized control has allowed the United

States to assert itself more meaningfully to ensure the smooth operation of its own foreign missions. Moreover,

under the purview of an interagency advisory group, the State Department has begun to address the activities of

foreign missions that are inimical to U.S. security interests at home. The Libyan cases are an example of such an

application of the Act.

But the Foreign Missions Act, however, also presents troubling international legal and political issues. As

discussed above, the Act's central rationale-diplomatic reciprocity-is largely irrelevant in the context of United

Nations missions insofar as the multilateral covenants governing the United Nations are concerned. If the United

States ignores the legal protections afforded U.N. representatives by these agreements, it may alienate itself

futher from that body and its members.

Even outside the arena of the United Nations, the Office of Foreign Missions treads on thin legal ice in ap-

plications of the Act unless its rationale is strictly that of diplomatic reciprocity. Acting to further U.S. national

interests alone may not provide legal justification under the Vienna Convention for certain applications of the

Act.

Politically, too, the Act might create problems for United States relations with its allies if OFM applies theAct's reciprocity rationale too strictly. Policy-makers in the State Department and in the relevant Congressional

committees should prevent this from happening by closely directing and overseeing the Act's implementation.

[FNa]J.D., St. John's University, 1973; Counsel to Cameron Hornbostel & Butterman in New York. The Author


17 N.Y.U. J. Int'l L. & Pol. 817



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was formerly Deputy Commissioner and Counsel, New York City Commission for the United Nations and Con-

sular Corps. The Author wishes to thank his research assistant, Marlen Bodden of New York University School

of Law, and Philip Goldberg and Adam Sterling of the New York City Commission, for their help in the prepar-

ation of this Article.

[FN1]. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7 502, 500

U.N.T.S. 95 [hereinafter cited as Vienna Convention].

[FN2]. See Radwan v. Radwan, (1972) 3 W.L.R. 735 (Fam.); Immeuble de la Rue de Civry v. Issakides and

Konstantis, 48 I.L.R. 205 (Trib. gr. inst., Fr., 1966). See generally J. SWEENEY, C. OLIVER & N. LEECH,

CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM 841-868 (1981) [hereinafter cited

as INTERNATIONAL LEGAL SYSTEM].

[FN3]. Foreign Missions Act of 1982, 22 U.S.C. 254(e),4301-4313 (1984).

[FN4].See infratext accompanying notes 38-53.

[FN5]. As of 1980, 132 states were parties to the Convention. J. SWEENEY, C. OLIVER & N. LEECH, IN-

TERNATIONAL LEGAL SYSTEM: DOCUMENTARY SUPPLEMENT 223 [hereinafter cited as DOCU-

MENTARY SUPPLEMENT].

[FN6]. Vienna Convention, supranote 1, art. 3.

[FN7].Id.arts. 5, 6.

[FN8]. Throughout this Article, as in the Vienna Convention, the receiving state is the host state. See, e.g., id.

art. 4(2).

[FN9]. In the absence of a specific bilateral agreement, the receiving state may require that the size of a mission

be kept within reasonable and normal limits. Id. art. 11.

[FN10].Id.art. 22.

[FN11].Id.art. 23.

[FN12].Id.art. 31.

[FN13].Id.art. 21.

[FN14].Id.art. 26.

[FN15].Id.arts. 44, 45.

[FN16].Id.art. 47(1).

[FN17].Id.art. 47(2).

[FN18]. INTERNATIONAL LEGAL SYSTEM, supranote 2, at 841-61.

[FN19].Id.at 852.


17 N.Y.U. J. Int'l L. & Pol. 817

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0006792&FindType=Y&SerialNum=1972143458http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS254&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS4301&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS4313&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS4313&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS4313&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS4301&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=22USCAS254&FindType=Lhttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0006792&FindType=Y&SerialNum=1972143458


17/26

[FN20]. The Convention entered into force in the United States on Dec. 13, 1972. DOCUMENTARY SUPPLE-

MENT,supranote 5, at 223.

[FN21]. Mariano, U.S., China Agree on Terms to Buy Diplomatic Property,Wash. Post, Dec. 1, 1984, at Fl, col.

2.


[FN23]. In early 1985, the office of Foreign Missions announced plans to implement a nationwide policy to

modify state and local tax exemptions. Under the proposal, OFM will encourage changes in state law to permit

the revocation or restriction of diplomatic tax exemptions. Specifically, OFM will seek to have state and local

decisions whether to grant such exemptions reflect the tax treatment of U.S. mission personnel abroad. James

Nolan, Director, Office of Foreign Missions, On the Record Briefing, Feb. 7, 1985 (press release).

[FN24]. Vienna Convention, supranote 1, art. 23.

[FN25]. Article 32 of the Vienna Convention specifically provides that diplomats are not exempt from indirecttaxes of a kind which are normally incorporated in the price of goods or services. Vienna Convention, supra

note 1, art. 32(a). Therefore, diplomats may not avoid paying a value-added tax under the Convention.


[FN27]. Under the Income Tax Act of 1952, Tax to be charged . . . in respect of any house or tenement occu-

pied by the accredited minister of any foreign state shall be charged on and paid by the landlord or other person

immediately entitled to the rent of the house or tenement. SeeE. DENZA, DIPLOMATIC LAW 99 (1976).

[FN28]. In the summer of 1982, the town of Glen Cove's City Council voted to withdraw the Soviets' rights to

use the town's beaches, tennis courts, and golf courses. The Council acted following reports from the Depart-

ment of State that the Soviets were using their 36-acre estate in the town for purposes of electronic spying. O ff

the Beach,TIME, Aug. 9, 1982, at 12, col. 3.

[FN29].702 F.2d 485 (4th Cir. 1983).

[FN30].Id.at 486.

[FN31].United States v. Arlington, 669 F.2d 925 (4th Cir.),cert. denied.,459 U.S. 801, 103 S. Ct. 23, (1982).

[FN32].702 F.2d at 486.

[FN33].Id.at 486-87.

[FN34]. The Court of Appeals noted, for example, that the Vienna Convention's tax exemption provisions ex-

cluded taxes paid for specific services and that Arlington County's real property taxes might be interpreted as

taxes paid for local improvements directly benefitting the premises. The United States conceded this ambiguity.

Id. at 487.

[FN35]. See, e.g., S. CHRISTIAN, NICARAGUA: REVOLUTION IN THE FAMILY (1985); K. COLEMAN &

G. HERRING, THE CENTRAL AMERICAN CRISIS: SOURCES OF CONFLICT AND THE FAILURE OF

US POLICY (1985).


17 N.Y.U. J. Int'l L. & Pol. 817

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[FN36]. Taubman,21 Nicaraguans in 6 Consulates Expelled by U.S.,N.Y. Times, June 8, 1983, at Al, col. 5.

[FN37].Id.

[FN38]. S. REP. No. 97-329, 97th Cong., 1st Sess. 22, reprinted in1982 U.S. CODE CONG. & AD. NEWS714, 735 [hereinafter cited as SENATE REPORT I].

[FN39].Id.

[FN40].Id.

[FN41].Id.

[FN42].Id.at 1-2.

[FN43]. S. REP. No. 97-283, 97th Cong., 1st Sess. 2 (1981) [hereinafter cited as SENATE REPORT II].

[FN44].Id.

[FN45].Id.

[FN46].Id.

[FN47].Id.at 2-3.

[FN48].Id.

[FN49].Id.at 3.

[FN50].Id.

[FN51].Id.

[FN52].Id.

[FN53].Id.

[FN54].Id.

[FN55].Id.

[FN56]. As ultimately adopted in The Foreign Missions Act, 22 U.S.C. 4303provides for the creation of Of-

fice of Foreign Missions (hereinafter the OFM).

[FN57]. SENATE REPORT I, supranote 38, at 1-2; SENATE REPORT II, supranote 43, at 3-4.

[FN58]. SENATE REPORT II,supranote 43, at 3-4.

[FN59].SeeSENATE REPORT I,supranote 38, at 2-3.

[FN60]. The Foreign Relations Committee expressed its hope that the State Department's new powers would not


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only simply be used to retaliate for inequities in diplomatic reciprocity experienced by U.S. diplomats abroad

but would also serve as an incentive to foreign governments to provide fair, nondiscriminatory treatment to U.S.

missions and personnel. SENATE REPORT II, supranote 43, at 1-2.

[FN61]. SENATE REPORT I, supranote 38, at 22.

[FN62].Id.at i.

[FN63]. The Committee on the District of Columbia considered the proposed Foreign Missions Act because of

the bill's impact on the nation's capital. Specifically, the bill proposed new procedures for the location of foreign

missions in the District of Columbia. SENATE REPORT I, supranote 38, at 23.

[FN64].Id.

[FN65]. The bill was passed on Aug. 9, 1982 and signed by President Reagan on Aug. 24, 1982. 18 WEEKLY

COMP. PRES. DOC. 1059, 1060 (Aug. 24, 1982).

[FN66]. The Foreign Missions Amendments Act of 1983, Pub. L. No. 98-164, Title VI, 6 01, 97 Stat. 1042

(1983), passed in November 1983, enacted22 U.S.C. 254(e),4304(a)and amended22 U.S.C. 4303(a).

[FN67].H. REP. No. 98-130, 98th Cong., 1st Sess. 48 (1983).

[FN68]. Department of State Authorization Act, Fiscal Years 1984 and 1985, Pub. L. 98-618, 601(c), 98 Stat.

3303 (1984).

[FN69].22 U.S.C. 254(e) &4304(a).

[FN70].Id. 4303.

[FN71].Id. 4304.

[FN72].Id. 4303(a).

[FN73].Id.

[FN74].Id. 4303(c).

[FN75]. The four criteria to be considered by the Secretary before he acts as reasonably necessary to further

reciprocity or otherwise are: (1) whether relations between the United States and the particular foreign state will

be facilitated; (2) whether United States interests will be protected; (3) whether adjustments for costs and pro-

cedures of obtaining benefits for missions of the United States abroad need be assessed; and (4) whether a dis-

pute affecting U.S. interests and involving a foreign state or mission might be resolved.22 U.S.C. 4304(b).

[FN76].Id.

[FN77].Id.

[FN78].See id.

[FN79].22 U.S.C. 4304(b)(3).


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[FN80].Id. 4307.

[FN81].Id. 4304(b).

[FN82].Id. 4304(c).

[FN83].Id. 4304(a).

[FN84].Id. 4305(a)(1).

[FN85].Id. 4308(a).

[FN86].See, e.g., id. 4302.

[FN87].Id. 4302(a)(1)(A)-(B).

[FN88].Id. 4302(a)(1)(C).

[FN89].Id. 4302(a)(1)(C), (E).

[FN90].Id. 4302(a)(1)(D).

[FN91].Id. 4302(a).

[FN92].Id. 4302(a)(4).

[FN93].Id. 4309(a).

[FN94].Id. 4305.

[FN95].Id. 4305(a)(1).

[FN96].Id. 4305(a)(1)(A)-(B).

[FN97].Id. 4305(a)(1).

[FN98].Id. 4305(b)(1).

[FN99].Id. 4305(b)(2).

[FN100]. The Act explicitly provides that it is not intended to preempt any State or municipal law regarding

zoning, land use, health, safety, or welfare. Id. 4307.

[FN101]. Notwithstanding the Act's non-preemption language, the denial by the Secretary of a benefit to a for-eign mission within the jurisdiction of a state or locality is controlling. Id.

[FN102]. For an example of the State Department's involvement in a local regulatory decision see discussion ac-

companying notes 159-167.

[FN103].22 U.S.C. 4304.


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[FN104].Id. 4304a(a)(1).

[FN105].Id. 4304a(a)(2).

[FN106]. Specifically the information provided by the mission head must include: (1) the jurisdiction in whicheach vehicle is registered; (2) the names of the insured parties; (3) the name of the insurance company; (4) the

insurance policy number and extent of coverage; and (5) any other information required by OFM. Id.

[FN107].Id. 4304a(b).

[FN108]. The Act does not provide any guidelines for how such damages are to be estimated in the absence of a

court judgment.See id.

[FN109].Id.

[FN110].See supranote 75 and accompanying text.

[FN111]. The Act specifies that in such a case, the Director shall impose a surcharge or fee ... 22 U.S.C.

4304a(b)(emphasis added).

[FN112]. U.S. DEPARTMENT OF STATE ANNUAL REPORT ON THE IMPLEMENTATION OF THE FOR-

EIGN MISSIONS ACT OF 1982 (1984)(P. L. 97-241) [hereinafter cited as OFM ANNUAL REPORT].

[FN113].Id.at 17.

[FN114].Id.at 18.

[FN115].Id.

[FN116].Id.

[FN117]. Gwertzman, U.S. to Check Trips By 4 Soviet Allies to Prevent Spying,N.Y. Times, Dec. 8, 1985, at 1,

col. 3.

[FN118]. OFM ANNUAL REPORT,supranote 112 at 18.

[FN119].See supranote 71 and accompanying text.

[FN120].See supranotes 75-79 and accompanying text.

[FN121]. OFM ANNUAL REPORT,supranote 112, at 2.

[FN122].Id.at 3.

[FN123].Id.

[FN124].Id.

[FN125]. Mariano, U.S., China Agree on Terms to Buy Diplomatic Property, Wash. Post, Dec. 1, 1984, at Fl,

col. 2.


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[FN126]. OFM ANNUAL REPORT,supranote 112, at 4.

[FN127].Id.at 3.

[FN128].Id.at 4.

[FN129].Id.

[FN130].Id.at 6.

[FN131].Id.

[FN132].Id.at 7-8.

[FN133].Id.at 9.

[FN134].Id.at 7.

[FN135].Id.

[FN136]. OFM ANNUAL REPORT supranote 112, at 4-5; see alsoGwertzman,supranote 117.

[FN137].Id.

[FN138].Id.at 5.

[FN139].Id.at 6.

[FN140]. Freedman,U.S. Curbs Libya on Jersey Mansion, N.Y. Times, June 14, 1983, at 82, col. 4.

[FN141].Id.

[FN142].Id.

[FN143].Id.

[FN144].Id.

[FN145]. Id.; Note Verbale from the United States Mission to the United Nations Addressed to the Permanent

Mission of the Libyan Arab Jamahiriya to the United Nations (June 10, 1983), reprinted inCommittee on Rela-

tions with the Host Country, U.N. Doc. A/A.C.154/249 Annex VI (1984).

[FN146]. Note Verbale from the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations ad-

dressed to the United States Mission to the United Nations (June 21, 1983), reprinted inCommittee on Relationswith the Host Country, U.N. Doc. A/A.C.154/249 Annex VII & VIII (1984); Letter From the Permanent Mission

of the Libyan Arab Jamahiriya to the United Nations addressed to the Chairman of the Committee (June 21,

1983), reprinted in Committee on Relations with the Host Country, U.N. Doc. A/A.C.154/249 Annex XIV

(1984) [hereinafter cited as Libyan Response Letter].

[FN147]. Note Verbale from the Permanent Mission of the Libyan Arab Jamarhiriya to the United Nations ad-


17 N.Y.U. J. Int'l L. & Pol. 817



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dressed to the United States Mission to the United Nations (Feb. 14, 1983), reprinted inCommittee on Relations

with the Host Country, U.N. Doc. A/A.C.154/249 Annex IV (1984).

[FN148]. Id. As discussed above, the Foreign Missions Act permits the OFM to review pending foreign mission

real estate transactions for 60 days. See supranotes 94-99 and accompanying text.

[FN149].Id.

[FN150]. For a discussion of the U.N. agreements, see infratext accompanying notes 171-186.

[FN151]. Libyan Response Letter, supranote 146.

[FN152]. Undated Note Verbale from the United States Mission to the United Nations addressed to the Perman-

ent Mission of the Libyan Arab Jamahiriya to the United Nations, reprinted inCommittee on Relations with the

Host Country, U.N. Doc. A/A.C.154/249 Annex XI (1984).

[FN153]. Letter from the Permanent Representative of the Libyan Arab Jamahiriya to the United Nations ad-

dressed to the Secretary-General (Dec. 22, 1983), reprinted inCommittee on Relations with the Host Country,

U.N. Doc. A/A.C.154/249 Annex XVI (1984) [hereinafter cited as Libyan Letter to U.N.].

[FN154].

Documents

Diplomatic Law Reciprocity