or limited immunity, to obey the laws and regulations of the United States, including such laws and regulations relating to the operation of motor vehicles. Thus, the State Department does not advise police departments in Washington, D.C., New York, or other cities, where diplomatic representatives reside and conduct official business to excuse parking violations on the basis of the existence of immunity.

Dept. of State File No. P74 0033-0717.

Liability To Give Evidence

In United States v. Wilburn, 497 F.2d 946 (1974), decided on July 29, 1974, the U.S. Court of Appeals for the Fifth Circuit held that under Article 44 of the Vienna Convention on Consular Relations, a Vice-Consul had the right to elect whether or not to testify in state judicial proceedings and whether or not to produce an application for a tourist card obtained from the consular office.

The U.S. District Court for the Southern District of Texas had issued a preliminary injunction prohibiting certain county officials in Texas from issuing any process of any nature for any consular personnel or any subpoenas for the production of documents which were part of the consulate records of the Consul of the Republic of Mexico in Corpus Christi, or to the Vice-Consul, or to any other members of the consulate staff. A subpoena had been issued directing the Vice-Consul to appear before a county court to testify in a pending case and to bring with her and produce an application of a third party for an ordinary tourist's card to visit Mexico.

The plaintiff-appellee (the United States) asserted a complete immunity from state process for consular officials, records and premises from seizure, subpoena or arrest. Appellants argued that a state subpoena was involved, and that whatever immunity existed was specifically qualified under Article 44 of the Vienna Convention. Article 44, on liability to give evidence, provides:

1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.

2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.

3. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their func

tions or to produce official correspondence and documents relating thereto...

The Court of Appeals, in directing that the preliminary injunction be vacated, said:

The court below failed to give consideration to Article 44 and thereby fell into error. The carefully drawn distinctions, evident upon analysis of Articles 1 and 44, must be given due effect. The Vice-Consul was, as a "consular officer," a "member of the consular post" and, so, under Article 44, § 1 was eligible to be called upon to attend as a witness in the state judicial proceeding, as were "consular employees" and "members of the service staff." The issuance and attempted service of the subpoena did not contravene the treaty. If subpoenaed, the Vice-Consul as a "consular officer" would have had the right to elect whether to testify or to decline to do so, and in the latter event was subject to no sanction. On the other hand, "consular employees" and "members of the service staff" had no such option, except in the cases mentioned in § 3 of Article 44. The order of the court below, which prohibited the issuance and service of any subpoena, relieved the Vice-Consul of all possibility of being called upon to make an election and precluded the state court from ascertaining the election made by the Vice-Consul. The court below could not justifiably assume that the state court would ignore or misapply the treaty provisions.

As a "consular officer" and, so a "member of the consular post," the Vice-Consul, under Article 44 § 3 was under no obligation to give evidence concerning matters connected with her consular functions or to produce any official correspondence or documents relating thereto nor was she prohibited from so doing. Again, it was the province of the Vice-Consul, not the court below, to determine whether the application of Mrs. Parr sought by the subpoena, was a document relating to the exercise of consular functions. If the Vice-Consul decided it was such a document, she would be under no obligation to produce it nor would she be prohibited from doing so. The option was the Vice-Consul's, not that of the Texas court or the court below.

We conclude that the issuance and attempted service of the subpoena were lawful and that, absent any evidence of interference, or threat of interference, by the Texas court with the Vice-Consul's rights to elect to testify or not and to produce or not to produce the application, the issuance of the preliminary injunction was error. Article 1(g) of the Vienna Convention defines members of the consular post to mean, inter alia, "consular officers, consular employees and members of the service staff;" Article 1(d) defines consular officer as any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions; (e) defines "consular employee" as any person employed in the administrative or technical service of a consular post.

Taxation

In an aide-memoire dated December 6, 1973, from the Embassy of India in Washington to the Department of State, it was proposed that on the basis of reciprocity, no further taxes be imposed on the properties owned by the United States and India, respectively, and used for official consular premises. It was further proposed that existing arrearages be eliminated on a reciprocal basis. Thus, taxes assessed against the Indian Consulate-General property in New York, but not yet paid, would be canceled on the condition that similar taxes against U.S. Government-owned consular property in India be removed.

The Department of State, in a letter dated August 14, 1974, to the Comptroller's Office of the city of New York, supported the Indian proposal. The Department's letter said, in pertinent part:

In the Department of State's view, the proposal of the Embassy of India is an appropriate one, in keeping with customary principles of international law. Relevant to the issue in question are Articles 32 and 72 of the Vienna Convention on Consular Relations (TIAS 6820), in force for the United States. Under Article 32, land and buildings used exclusively for the purposes of a consular post, are entitled to full exemption from national, regional or municipal taxes of any kind, except charges for specific services rendered. Article 72 embodies the concept of reciprocal application of such rules and anticipates agreements between states which provide for even more favorable treatment than required by the provisions of the treaty. Based on the above, the Department of State supports the proposal of the Embassy of India for mutual tax relief . . . .

Dept. of State File No. P74 0097-0127. Article 32 of the 1963 Vienna Convention on Consular Relations provides, in relevant part:

Consular premises and the residence of the career head of consular post of which the sending state or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.

Article 72 of the Vienna Convention prohibits application of the Convention in a manner which discriminates as between states, but provides that discrimination is not to be regarded as taking place "where by custom or agreement states extend to each other more favorable treatment than is required by the provisions of the present Convention."

Through an exchange of notes dated June 24 and July 4, 1974, the United States and the United Kingdom concluded an agreement

(TIAS 7917; 25 UST 2399; entered into force July 4, 1974) establishing the status of United States forces in the British Sovereign Base Areas on Cyprus for purposes of Suez Canal clearance activities being carried out by those forces. See Ch. 7, § 7, infra, pp. 352–354. The agreement also sets forth the mutual understanding of the two governments as to the applicability to the Canal clearance operations of two pre-existing agreements concerning mutual waiver of claims by the two governments.

United States assistance to the Government of Egypt in the clearance of the Canal included minesweeping and related operations. These operations required the incidental use of land facilities as a staging area for the assembly of minesweeping helicopters transported from the continental United States and for the temporary disembarkation of part of the normal personnel complement of some of the vessels involved in the operations. Consent was given for use of the British Sovereign Base Areas on Cyprus for these purposes. However, since this was not a normal NATO activity, it was considered necessary to make some provision regarding the status of members of the U.S. Armed Forces in the Sovereign Base Areas for purposes of the Canal clearance activities.

There were also certain aspects of the Canal clearance activities which involved joint operations of naval units of the United States and the United Kingdom. It was considered useful to confirm the mutual understanding of the two governments that the existing agreements relating to waiver of claims for damage caused by the respective armed forces would apply to the Suez Canal clearance activities, despite the fact that those activities did not constitute military operations in the usual sense.

The 1974 agreement provides that the following agreements are applicable as between the two governments:

(1) Within the Sovereign Base Areas of Cyprus:

(a) The following articles of the agreement between the parties to the North Atlantic Treaty regarding the status of their forces, signed at London June 19, 1951, are deemed to apply: Articles I-VI, VIII-XIV.

(b) The Visiting Forces Act, 1952 (15 & 16 Geo. 6 & 1 Eliz 2 CH.67) shall apply, it being understood that in no case will a United States forces member be subject to the jurisdiction of a United Kingdom service court.

(2) Outside the Sovereign Base Areas of Cyprus:

(a) The bilateral agreement relating to certain problems of marine transportation and litigation, and exchange of notes, signed at London December 4, 1942, as amended by the exchanges of notes dated March 25/May 7, 1946, and June 17/27, 1917; and

(b) The bilateral agreement relating to mutual forbearance in claims resulting from the acts of armed forces or civilian personnel,

569-769-75-14

effected by exchange of notes dated October 23, 1946, and January 23, 1947.

The British Visiting Forces Act accords substantially the same treatment as Art. VII of the NATO status of forces agreement. The 1951 NATO status of forces agreement is at TIAS 2846; 4 UST 1792 (entered into force for the United States Aug. 23, 1953, subject to a statement). The 1942 agreement relating to certain problems of marine transportation and litigation is at 56 Stat. 1780; EAS 282 (entered into force Dec. 4, 1942). The amendments to the 1942 agreement, dated March 25 and May 7, 1946, are at TIAS 1558; 60 Stat. 1958; the amendments of June 17 and 27, 1947, are at TIAS 1636; 61 Stat. 3014. The 1946-1947 agreement relating to mutual forbearance in claims resulting from acts of armed forces or civilian personnel is at TIAS 1622; 61 Stat. 2876 (entered into force Jan. 23, 1947). It was operative from June 6, 1944.

On March 5, 1974, George H. Aldrich, Deputy Legal Adviser, Department of State, and U.S. Representative to the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, made a statement to the Conference which included the following:

We must not forget that this Conference is a test of whether it is still possible to make responsible and acceptable law in a universal forum. This question is also being tested in the Conference on the Law of the Sea. In my country, and I believe in other countries, there are some skeptics who say that the world community has become too large and its interests too diverse for such Conferences to succeed. These skeptics assert that only through conventions drawn up by like-minded states can real progress be made, and they point as examples to the recent conventions dealing with threats to international civil aviation. Doubtless these skeptics could also point to the first two weeks of this Conference as proof that states are unable to resist the temptation to pursue short term political interests at the expense of the substantive work of the Conference. I urge my colleagues here to keep these concerns in mind, to concentrate on the substance of our work-the reaffirmation and the development of the law-and to stop treating this Conference like a branch of the United Nations General Assembly where special interests can be pushed. I am disturbed to learn, for example, that certain delegations are still trying in the work on rules of procedure to promote further the status of national liberation movements at this Conference. The movements are here; they have the right to participate in our work. We should be satisfied. Here is a perfect example of the type of effort to extract from the Conference the maximum of perceived political advantages without regard to the cost that threatens the future of international lawmaking. There should be