Rule2024-19192
Diplomatic Agent-Level Immunity
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 28, 2024
Effective
August 28, 2024
Issuing agencies
State Department
Abstract
The Vienna Convention on Diplomatic Relations defines "diplomatic agent" and the level of immunity enjoyed by a diplomatic agent. However, because some other individuals who are not themselves "diplomatic agents" as defined in the VCDR also enjoy what is known as "diplomatic agent-level immunity," the Department of State is promulgating this regulation to clearly and correctly define which foreign persons enjoy diplomatic agent-level immunity within the United States and clarify that the determination of who enjoys diplomatic agent-level immunity and lesser status-based immunity, which is both legal and factual in nature, is made by the Department of State.
Full Text
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<title>Federal Register, Volume 89 Issue 167 (Wednesday, August 28, 2024)</title>
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[Federal Register Volume 89, Number 167 (Wednesday, August 28, 2024)]
[Rules and Regulations]
[Pages 68778-68781]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-19192]
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DEPARTMENT OF STATE
22 CFR Part 150
[Public Notice: 12475]
RIN 1400-AF85
Diplomatic Agent-Level Immunity
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Vienna Convention on Diplomatic Relations defines
``diplomatic agent'' and the level of immunity enjoyed by a diplomatic
agent. However, because some other individuals who are not themselves
``diplomatic agents'' as defined in the VCDR also enjoy what is known
as ``diplomatic agent-level immunity,'' the Department of State is
promulgating this regulation to clearly and correctly define which
foreign persons enjoy diplomatic agent-level immunity within the United
States and clarify that the determination of who enjoys diplomatic
agent-level immunity and lesser status-based immunity, which is both
legal and factual in nature, is made by the Department of State.
DATES: This rule is effective on August 28, 2024.
FOR FURTHER INFORMATION CONTACT: Clifton M. Johnson, Diplomatic Law and
Litigation, Office of the Legal Adviser, Department of State,
Washington, DC 20520, (202) 647-1075, or <a href="/cdn-cgi/l/email-protection#82e8edeaecf1edece1efb7c2f1f6e3f6e7ace5edf4"><span class="__cf_email__" data-cfemail="28424740465b47464b451d685b5c495c4d064f475e">[email protected]</span></a> (for
information regarding this final rule); Office of Foreign Missions,
Department of State, Washington, DC 20520, or <a href="/cdn-cgi/l/email-protection#d9969f94f489b6b5b0baa099aaadb8adbcf7beb6af"><span class="__cf_email__" data-cfemail="4f000902621f2023262c360f3c3b2e3b2a61282039">[email protected]</span></a> (for
information regarding diplomatic status and immunities in specific
instances).
SUPPLEMENTARY INFORMATION: Pursuant to Article II of the Constitution
which provides the President with the right to receive ambassadors and
other public ministers, the Secretary of State's role to execute the
foreign policy of the United States, specific provisions of the U.S.
Code discussed below, and well established case law as noted below, the
U.S. Department of State is uniquely positioned as the sole United
States government agency that accepts the accreditation of foreign
diplomats, and is authorized to determine and certify the diplomatic
status of a foreign individual and the immunity enjoyed by that
individual.
This regulation defines who enjoys diplomatic agent-level immunity
and clarifies the comprehensive scope of diplomatic agents' immunity
for the non-exclusive purpose of facilitating judicial and
administrative proceedings in the United States. The regulation also
clarifies that the determination of who enjoys diplomatic agent-level
immunity and lesser status-based immunity is one that requires
application of law to facts and is made by the Department of State--not
any other federal agency or by any foreign mission in the United
States. Individuals enjoying diplomatic agent-level immunity are not
subject to the criminal jurisdiction of the United States, and are
immune from the civil or administrative jurisdiction of the United
States, with limited exceptions. Such immunity is enjoyed by diplomatic
agents at bilateral diplomatic missions pursuant to the Vienna
Convention on Diplomatic Relations (VCDR, 23 U.S.T. 3227; see Articles
29 and 31 in particular); certain senior officials of the United
Nations pursuant to Article V, Section 19 of the Convention on
Privileges and Immunities of the United Nations of 1970 (21 U.S.T.
1418) (``UN Convention''); diplomatic staff at Permanent Missions of
Member States to the United Nations pursuant to Article V, Section 15
of the United Nations Headquarters Agreement of 1947 (1947 U.S.T. 529)
and Article IV, Section 11 of the UN Convention; consular officers
assigned to consulates of countries with which the United States has an
enhanced immunities agreement that ``enhances'' their immunity to
diplomatic agent-level; certain senior officials of and representatives
to some international organizations (see, e.g., Agreement on Privileges
and Immunities of the
[[Page 68779]]
Organization of American States (26 U.S.T. 1025) and Agreement on the
Status of the North Atlantic Treaty Organization, National
Representative and International Staff (33 U.S.T. 1272)); and others.
Lesser forms of status-based immunity include administrative and
technical staff immunity as set forth in the VCDR, which is generally
coextensive with diplomatic-agent level immunity with the exception of
civil immunity which is more limited (for official acts only); consular
officer immunity as set forth in the Vienna Convention on Consular
Relations (VCCR, 21 U.S.T. 77), which entails immunity for official
acts and personal inviolability from arrest absent a warrant for grave
crimes; and consular employee immunity as set forth in the VCCR, which
entails immunity for official acts.
Accordingly, the intent of the regulation is to strengthen the
ability of law enforcement, the courts, foreign governments, and the
public to recognize and rely upon authoritative determinations by the
United States of the diplomatic status and corresponding level of
status-based immunity enjoyed by foreign individuals. It is meant to
discourage reliance on outdated or incomplete documentation of
diplomatic status or assertions by persons other than Department of
State officials that may lead to inaccurate understandings of who
enjoys immunity and the scope of that immunity, and to direct
interested parties to instead consult with the Department of State for
such information. By doing so, the regulation will help ensure that
individuals entitled to immunity will be treated accordingly and reduce
the risk that individuals who erroneously or misleadingly assert such
status are accorded immunity to which they are not entitled. The
regulation is necessary to ensure the Secretary of State can continue
to meet international and domestic legal obligations to respect the
immunities accredited foreign diplomats enjoy. Specifically, the VCDR
and various bilateral treaties enhancing immunities of individuals
other than diplomatic agents establish immunities that the United
States is obligated to respect under international law. Additionally,
the Diplomatic Relations Act of 1978 (22 U.S.C. 254b(c)) establishes
immunities for members of foreign missions and their families for
foreign States not party to the VCDR. The Secretary and the Department
of State are uniquely positioned to fulfill those responsibilities in
this manner.
The Department of State has legal authority to promulgate this
regulation. Article II, Section 3 of the United States Constitution
directs the President to ``receive Ambassadors and other public
Ministers.'' 22 U.S.C. 2656 grants the Secretary of State authority to
perform duties relative to matters respecting foreign affairs,
including duties regarding applications and requests from foreign
public ministers or other foreigners. Pursuant to this statutory
authority, as well as Article 9 of the VCDR and Article 23 of the VCCR,
the Department accepts accreditation of members of foreign diplomatic
or consular missions at its discretion. Additionally, Article 10 of the
VCDR and Article 24 of the VCCR provide that the Ministry of Foreign
Affairs specifically, or the authority designated by that ministry (per
the VCCR) or such other ministry as may be agreed (per the VCDR), shall
be notified of the appointment of members of a diplomatic or consular
mission. Under the VCDR, the Department of State has the broad
discretion to classify diplomats. See Abdulaziz v. Metro. Dade Cty.,
741 F.2d 1328, 1330 (11th Cir. 1984). Additionally, pursuant to 22
U.S.C. 2656 and the United Nations Headquarters Agreement of 1947, the
Department of State also accords privileges and immunities to foreign
individuals accredited to the United Nations.
With respect to determining the status-based immunity that
accredited foreign individuals and their family members enjoy, the
Diplomatic Relations Act of 1978 (22 U.S.C. 254c(a)) authorizes the
President to, ``on the basis of reciprocity and under such terms and
conditions as he may determine, specify privileges and immunities for
members of the mission, their families and the diplomatic couriers of
any sending state which result in more favorable or less favorable
treatment than is provided under the Vienna Convention.'' The President
has delegated authority to prescribe regulations for that purpose to
the Secretary of State through Executive Order 12101 (43 FR 54195),
amended by Executive Order 12608 (52 FR 34617). The Diplomatic
Relations Act of 1978, as amended (22 U.S.C. 254c(b)) also authorizes
the Secretary of State, on the basis of reciprocity and under such
terms and conditions as the Secretary may determine, with the
concurrence of the Attorney General, to specify privileges and
immunities for a consular post, the members of a consular post, and
their families which result in more favorable or less favorable
treatment than is provided in the VCCR. The Secretary's determinations
of the scope of the status-based immunity of foreign individuals in
that regard are made pursuant to international agreements with foreign
governments that the Department of State negotiates, concludes, and
interprets pursuant to 22 U.S.C. 254c(b), as well as the President's
Article II authority to speak as the sole organ of the government with
respect to agreements regarding diplomatic relations, delegated to the
Secretary. See 22 U.S.C. 2656; United States v. Belmont, 301 U.S. 324,
330 (1937). By according diplomatic agent-level immunity to foreign
individuals, the Department of State is able to ``contribute to the
development of friendly relations among nations'' and ``to ensure the
efficient performance of the functions of the diplomatic missions.''
See Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 980 (D.C. Cir. 1965),
citing the VCDR, preamble.
As the above authorities illustrate, the Department of State is
authorized to and responsible for determining whether someone enjoys
diplomatic agent-level immunity or other status-based immunity,
consistent with the concurrence requirements of 22 U.S.C. 254c(b), as
applicable. 22 U.S.C. 2651a authorizes the Secretary ``to promulgate
such rules and regulations as may be necessary to carry out the
functions of the Secretary of State and the Department of State.''
Clarifying that the Department of State is responsible for indicating
which foreign individuals enjoy diplomatic agent-level immunity or
lesser status-based immunity will reduce the risk of conflicting
determinations of the diplomatic status and corresponding immunity
foreign individuals and their family members may enjoy.
Courts have long held that the Department of State's certification
is ``conclusive and dispositive evidence'' of a diplomat's entitlement
to status-based immunity. See United States v. Al-Hamdi, 356 F.3d 564,
573 (4th Cir. 2004) (``[W]e hold that the State Department's
certification . . . is conclusive evidence as to the diplomatic status
of an individual.''); Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328,
1339 (11th Cir. 1984) (``[O]nce the United States Department of State
has regularly certified a visitor to this country as having diplomatic
status, the courts are bound to accept that determination.''); Muthana
v. Pompeo, 985 F.3d 893, 906-09 (D.C. Cir. 2021); Carrera v. Carrera,
174 F.2d 496, 497 (D.C. Cir. 1949) (``It is enough that an ambassador
has requested immunity, that the State Department has recognized that
the person for whom it was requested is entitled to it, and that
[[Page 68780]]
the Department's recognition has been communicated to the court.'').
Regulatory Analysis
Administrative Procedure Act
This rulemaking is published as a final rule since it relates to a
foreign affairs function of the United States and is exempt from
notice-and-comment rulemaking. 5 U.S.C. 553(a)(1). Because this
rulemaking is exempt from 5 U.S.C. 553, the provisions of 5 U.S.C.
553(d) are not applicable and this rule is effective immediately.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Since this rule is exempt from notice and comment rulemaking, it is
also exempt from the provisions of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq.
Congressional Review Act
This rulemaking does not constitute a major rule, as defined by 5
U.S.C. 804, for purposes of congressional review of agency rulemaking.
The Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally
requires agencies to prepare a statement before proposing any rule that
may result in an annual expenditure of $100 million or more by State,
local, or tribal governments, or by the private sector. This rule will
not result in any such expenditure nor would it significantly or
uniquely affect small governments.
Executive Orders 12372 and 13132: Federalism and Executive Order 13175,
Impact on Tribes
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Nor will the regulations have federalism
implications warranting the application of Executive Orders 12372 and
13132. This rule will not have tribal implications, will not impose
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Executive Orders 12866, 13563, and 14094: Regulatory Review
This rule has been drafted in accordance with the principles of
Executive Orders 12866 (as amended by Executive Order 14094) and 13563.
This rule has been determined to be a significant rulemaking under
section 3 of Executive Order 12866, but not significant under section
3(f)(1). The benefits of the rule are qualitative, in that the rule
provides clarity for foreign governments and their personnel, and
secondarily for domestic officials and the public, on which individuals
are entitled to diplomatic agent-level immunity and the scope of that
immunity. Individuals enjoying diplomatic agent-level immunity are not
subject to the criminal jurisdiction of the United States, and are
immune from the civil or administrative jurisdiction of the United
States, with limited exceptions. There are no costs to the rulemaking
as the United States is already required to accord immunity to certain
foreign individuals pursuant to its obligations under international
law, including the VCDR. The rule does not expand or otherwise change
the categories or number of individuals who enjoy diplomatic agent-
level immunity. The promulgation of this rule will not increase the
number of individuals accorded diplomatic agent-level immunity, as the
rule will not affect the long-standing standards by which the
Department determines a foreign individual's status and corresponding
immunity. This rule will help ensure that law enforcement, the courts,
foreign governments, and the public are aware of the need to consult
the Department of State to understand foreign individuals' diplomatic
status and corresponding immunity, which is relevant for, among other
purposes, understanding whether their family members born in the United
States were born subject to the jurisdiction of the United States under
the Fourteenth Amendment of the U.S. Constitution. The rule would
reduce the risk of erroneous determinations detrimental to the foreign
relations of the United States. This rule also clarifies that the
Department itself, in accordance with international and domestic law
and taking into account the comprehensive information available to it
related to diplomatic status, identifies the diplomatic status and
corresponding immunities of foreign persons. In the absence of this
rule, there is continued risk of immunity being extended or not
extended erroneously, which can result in, inter alia, the
inappropriate exercise of criminal jurisdiction over accredited
diplomats; the inaccurate determination of lawful permanent residence
status; and erroneous decisions on whether an individual was born in
the United States subject to the jurisdiction of the Fourteenth
Amendment. Therefore, the Department believes that the qualitative
benefits of this rulemaking are manifest, and there are few costs.
Executive Order 12988: Civil Justice Reform
This rule has been reviewed in light of sections 3(a) and 3(b)(2)
of Executive Order 12988 to eliminate ambiguity, minimize litigation,
establish clear legal standards, and reduce burden.
The Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
Federal agencies must obtain approval from OMB for each collection of
information they conduct, sponsor, or require through regulation. This
rule neither establishes nor modifies any collection of information
subject to the Paperwork Reduction Act.
List of Subjects in 22 CFR Part 150
Foreign officials; Immunity.
For the reasons set forth above the State Department amends title
22, chapter I by adding part 150 to subpart P to read as follows:
PART 150--DIPLOMATIC AGENT-LEVEL IMMUNITY
Sec.
150.1 Diplomatic Agent-Level Immunity.
150.2 Determination by the Department of State.
150.3 Severability.
Authority: 22 U.S.C. 2651a, 2656; 22 U.S.C. 254c; Vienna
Convention on Diplomatic Relations, Done at Vienna April 18, 1961,
23 U.S.T. 3227; Vienna Convention on Consular Relations, Done at
Vienna April 24, 1963, 21 U.S.T. 77; Convention on the Privileges
and Immunities of the United Nations, 21 U.S.T. 1418.
Sec. 150.1 Diplomatic Agent-Level Immunity.
Diplomatic Agent-Level Immunity refers to the complete immunity
from the criminal jurisdiction of the United States and to
comprehensive immunity from the civil and administrative jurisdiction
of the United States, and is enjoyed by:
(a) Foreign individuals accredited to the United States as
``diplomatic agents'' under the Vienna Convention on Diplomatic
Relations, and the family members forming part of their households;
(b) Foreign individuals accredited to the United States as
administrative and technical staff or service staff of diplomatic
missions, or as consular officers of consular missions, and the family
members forming part of their households, representing a foreign
government with which the United States has an international agreement
for the enhancement of immunity of
[[Page 68781]]
those individuals to diplomatic agent-level immunity; and
(c) Certain other foreign officials and representatives as
determined by the Department of State.
Sec. 150.2 Determination by the Department of State.
The question of whether any particular person enjoys diplomatic
agent-level immunity and is therefore not subject to the jurisdiction
of the United States, or whether they enjoy lesser status-based
immunity, on any particular date entails both factual and legal
analysis, and is determined by the Department of State, in accordance
with relevant international and domestic law.
Sec. 150.3 Severability.
The provisions of this part are separate and severable from one
another. If any provision is stayed or determined to be invalid, it is
the Department of State's intention that the remaining provisions shall
continue in effect.
Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of
State.
[FR Doc. 2024-19192 Filed 8-27-24; 8:45 am]
BILLING CODE 4710-08-P
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</html>Indexed from Federal Register on August 28, 2024.
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