Petition for Writ of Certiorari — Kostadinov v. United States

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84 pa 3 5 . 7 “aT. 7 US.

. JUL 9 1984

ROD ANDER TT STEVAS,

CLERK

No. 84-

IN THE

Supreme Court of the United States

OctTosER TreRM, 1984

Penyu BaycuHev Kostapinov,

Petitioner,

Unitep SratTes oF AMERICA.

SS eS a

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—— Se —

—_—_—_—_—_—_— ————— SS ——

Martin Popper

(Counsel of Record)

JoHN MacE

Wotr Porrer Ross Wor & JoNnEs

845 Third Avenue

New York, New York 10022

(212) 759-4600

Counsel for Petitioner

Questions Presented

1. Is the 1963 Bi-lateral Agreement, incident to the claims

settlement between Bulgaria and the United States, pur-

suant to which the United States authorized the Bulgarian

mission to establish the Office of the Commercial Counselor

in New York as an integral part of the Bulgarian mission,

an international compact binding on the United States?

2. Can the United States, consistent with its adherence

to the Vienna Convention on Diplomatic Relations, deny

diplomatic privileges and immunities to a person notified

to it as a member of the staff of a mission of a foreign

state for the sole reason that the member of the mission

staff works in a mission office in New York rather than

Washington, when: (a) pursuant to the Bi-lateral Agree-

ment that office was established in New York as an integral

part of the mission with the express consent of the United

States; (b) the member of the mission staff was duly noti-

fied to and accepted by the United States; and, (c) the

function performed by the member of the mission staff if

carried out in Washington, D.C., would concededly entitle

him to immunity from the criminal jurisdiction under the

Vienna Convention?

TABLE OF CONTENTS

PAGE

Commence. Prem nnn sn en sssin nin eeesnesinscernsipieresrneerenee i

ein GE Dm oie. hcssiinelnsicenncertee dts nina iv

Cone TR sn cassie ss sssn en scencinseensonsievenanastntenencneneneanorynee 1

Dea aici ssssiceihicsrsicigtchlbatbiiaahandaahdan aaa 2

Statutory and Treaty Provisions Invelved .................... 2

Gietennent Of te TNO ince s 2

Reasons FoR GRANTING THE WRIT ................------:--0-000000-"" 7

1. The Bi-lateral Agreement, Incident to the Claims

Settlement Between Bulgaria and the United

States, in Which the Bulgarian Mission Was

Authorized to Establish the Office of Its Com-

mercial Counselor in New York Is an Interna-

tional Compact Requiring the United States to

Recognize the Office as Part of the Mission and

Its Employees as Members of the Mission Staff... 8

2. The Vienna Convention on Diplomatic Relations

Requires That the United States Grant Immunity

From the Criminal Jurisdiction to a Person Em-

ployed by a Foreign Mission and Notified to the

United States as a Member of Its Administrative

and Technical Staff in a Mission Office in New

York Where: (A) The Office Was Established

in New York as an Integral Part of the Mission

With the Express Consent of the United States;

(B) The Member of the Mission’s Administra-

tive and Technical Staff Was Notified to and

Accepted by the United State»; (C) The Func-

tion Performed by the Member of the Mission,

if Carried Out in Washington, Would Concededly

Entail Immunity From Criminal Prosecution Un-

der the Vienna Convention ........................:-.:--:00-++ 12

CSG MOE AION .vonccecsccinecssoissicenineuaste ce 19

. —

iil

APPENDICES:

PAGE

A. Opinion of United States Court of Appeals for the

Second Circuit Reversing Order of the District

Court Dismissing Indictment .... la

Opinion and Order of United States District Court

for the Southern Distriet of New York Dismissing

a eS 20a

Vienna Convention on Diplomatic Relations __ dla

an U.80, $266(a) and (a) .................................... 78a

Department of State Airgram With Note to the

Ministry of Foreign Affairs of the People’s Repub-

lic of Bulgaria and Statement on United States-

Bulgaria Trade Relations 0.0... 80a

TABLE OF AUTHORITIES

Cases: PAGE

ee Ne Bh SE pee OUI lin

Dames & Moore v. Regan, 453 U.S. 654 (1981) —....... 9

The Society for the Propagation of the Gospel in For-

eign Parts v. New Haven, 8 Wheaton 464 (1823) ...... 11

United States v. County of Arlington, 669 F.2d 925

(4th Cir.), appeal dismissed, cert. denied, 459 U.S.

|__| RRR REERatalrprneery poem anre wrens ee eer renee earn Cr 9

United States v. Belmont, 301 U.S. 324 (1987) —......... 7, 8,9

United States v. Dizdar, 581 F.2d 1031 (2d Cir. 1978). 17

United States ex rel. Casanova v. Fitzpatrick, 214 F.

Rs Se I I ce ahecssecin cee esttinninetenentnsnens 13n

United States v. Perchemann, 7 Peters 57 (1833) ........ 13n

United States v. Pink, 315 U.S. 203 (1942) 2... 7,8,9

United States v. Schooner Peggy, 1 Cranch 103 (1803)... 13n

Vulcan Iron Works vy. Polish American Machinery

Corp., 479 F. Supp. 1060 (S.D.N.Y., 1979) 00002... 6

Vulcan Iron Works vy. Polish American Machinery

Corp., 472 F. Supp. 77 (S.D.N.Y., 1979) .................... 6

Weinberger v. Rossi, 456 U.S. 25 (1982) ~......02002.2....... 9

Ro A A NOE cate

Statutes and Treaties: PAGE

Vienna Convention on Diplomatic Relations, 23 U.S.T.

3227, TIAS 7502, 500 U.N.T.S. 95 00 passim

SR EG: WIN tite diblaninctudecodatin ae, cet ao 2

Re RG I orastesiiciehabg ating a nimi. Shotts lin

OU a ie 2, 2-3, 5,12, 13n

Other Authorities:

K. Denza, Diplomatic Law (1976) ........ 16

Key Officers of Foreign Service Posts, Department of

State, Publication 7877, (Revised January 1984) ... 15

1958 Yearbook of the International Law Commission . 14

No. 84-

IN THE

Supreme Court of the Anited States

Ocroser Term, 1984

Prenyu Baycnev Kostaprnovy,

Petitioner,

Vv.

Unrrep Srates or AMERICA,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Penyu Baychev Kostadinov, Assistant Commercial Coun-

selor of the Bulgarian Embassy to the United States, peti-

tions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Second Circuit, reversing the judgment of the United States

District Court for the Southern District of New York that

he is immune from the criminal jurisdiction of the United

States by the terms of the Vienna Convention on Diplo-

matic Relations, 23 U.S.T. 3227, TIAS 7502, 500 U.N.T\S.

95.

Opinions Below

The opinion of the Court of Appeals, reversing, is re-

printed as Appendix A. The opinion of the District Court

eranting the motion to dismiss on grounds of immunity,

delivered orally, is reprinted as Appendix B.

Jurisdiction

The Opinion and Order of the Second Circuit Court of

Appeals issued May 10, 1984. This Court has jurisdiction

under 28 U.S.C. §1254(1).

Statutory and Treaty Provisions Involved

We rely throughout this petition on the Vienna Conven-

tion on Diplomatic Relations, 23 U.S.T, 3227, TLAS 7502,

500 U.N.T.S. 95, enacted as domestic law by the Diplomatic

Relations Act, 22 U.S.C. §254, and applicable to the facts

of this case by virtue of the Bi-lateral Agreement between

Bulgaria and the United States pursuant to which the

Legation of Bulgaria was authorized to establish in New

York a Commercial Counselor’s office as an integral part

of the mission. The relevant texts are reprinted as Ap-

pendix C.

Statement of the Case

Penyu Baychev Kostadinov is a 41-year old Bulgarian

official specializing in foreign trade. He has been detained

since September 23, 1983 on an indictment, returned in the

United States District Court for the Southern District of

New York on September 26, 1983, charging conspiracy to

attempt to commit and to commit espionage, and attempted

espionage, 18 U.S.C. §794(a) and (ce). Mr. Kostadinov has

pleaded Not Guilty. Both Mr. Kostadinov and the Govern-

ment of Bulgaria have invoked his immunity from the crim-

inal jurisdiction of the United States from the first oppor-

tunity. Bulgaria has, in numerous notes and conversations,

strongly protested to the Uniied States Kostadinov’s deten-

tion as a violation of United States obligations under inter-

national law. The United States, while rejecting the claim

of immunity, has replied to Bulgaria that under 22 U.S.C.

§254, the Diplomatic Relations Act, such determinations

are exclusively within the province of the judiciary. The

case presents the first interpretation by the United States

courts of the provisions of the Vienna Convention on Diplo-

matic Relations concerning diplomatic immunity from the

criminal jurisdiction. We seek certiorari because the opin-

ion of the Court of Appeals reversing the District Court

and denying immunity misconstrues the 1963 agreement

between Bulgaria and the United States, and is a seriously

flawed interpretation of the Vienna Convention.

On May 5, 1979, Bulgaria notified the United States that

“Penyu Baychev Kostadinov [is] appointed employee in

the commercial service of the Embassy of the People’s

Republic of Bulgaria in Washington . . . to occupy his post

in replacement of Stefan Petrov Kossev.” As was known

to the United States, Mr. Kossev worked in the office of the

Embassy’s Commercial Counselor in New York. Mr. Kos-

tadinov was issued an A-2 (foreign official) visa and com-

menced his duties as Assistant Commercial Counselor in

the Embassy’s New York office on July 3, 1979. In notifying

the United States Department of State of Bulgarian gov-

ernment-related employees in the United States (Form

DS-394), Mr. Kostadinov’s position was specified as “Assis-

tant Commercial Counselor”, employed by the “Bulgarian

Embassy, Commercial Counselor’s Office”, performing his

duties at “50 E. 42 Str., Room 1501, NYC, NY.”

On March 24, 1959, the United States resumed diplomatic

relations with Bulgaria. The Memorandum of Understand-

ing regarding the resumption of diplomatic relations, pro-

vided, among other things, that:

the representatives agree that members of ti > staff

of the diplomatic missions of each country who are

national. of the sending country shall enjoy in the

territory of the other the privileges and immunities

derived from generally recognized international law

and practice,

In July 1963, after two years of intensive negotiations

and ancillary to the 1959 agreement for the resumption of

diplomatic relations, the United States and Bulgaria con-

cluded an agreement described by the United States Min-

ister to Bulgaria as “on financial! claims and related issues”,

(the Bi-laceral Agreement). The United States Minister

to Bulgaria signed the agreement for the United States.

As part of this transaction, the United States authorized

“the Legation of the People’s Republic of Bulgaria to estab-

lish in New York a commercial office which would have the

purpose of promoting trade between the two countries.”

The statement which authorized the opening of the office in

New York was sent by the Legation of the United States

in Sofia to the Ministry of Foreign Affairs of Bulgaria

accompanied by a formal diplomatic note impressed with

the seal of the United States Legation and initialed by the

United States Minister to Bulgaria. In the course of the

negotiations which culminated in the Bi-lateral Agreement,

the United States made known to Bulgaria that the agree-

ment to open the New York office would be made in a press

release which, while not a “integral part” of the claims

agreement would constitute “an associated feature of the

general settlement” of claims. The State Department in an

internal publication reporting on the claims agreement, de-

scribed the Statement authorizing the Bulgarian Legation

to open a trade office in New York as “one of our bargaining

levers during the negotiation.”

The District Court, after extensive hearings found:

that the entire context of the negotiations and the re-

lationship of the discussion of the trade office in the

context of the claims settlement agreement indicates

that the agreement on the part of the United States to

permit the Bulgarian Legation to open a trade office

in New York was an essential part of the total agree-

ment and that it constituted a binding agreement under

international law, and that Bulgaria was, therefore,

expressly authorized by the United States to have its

Legation open a commercial office in New York.

App. B at 31a.

The Court of Appeals, en passant, and in total disregard

of the record, concluaed that “certainly a press release is

not a bi-lateral agreement” ‘aus casually waiving aside a

solemn international compact entered into in good faith by

the United States and Bulgaria as part of the claims settle-

ment.

The Bi-lateral Agreement has never been terminated.

Following on the authorization, the Commercial Office of

the Bulgarian mission was opened in New York and was

composed of mission staff transferred from the Washing-

ton Legation.

Sometime after the July 1963 agreement, and no later

than the Spring of 1964, a disagreement arose between

Bulgaria and the United States over the immunity status

of the mission personnel transferred from Washington to

the New York commercial office. The United States stated

that it would only recognize full diplomatic immunity for

the head of the New York office (the Commercial Coun-

selor), while Bulgaria insisted that the subordinate admin-

istrative and technical personnel enjoyed the same immun-

ity they were recognized to have while in Washington. The

record below reflected ackr »wledgment by the State Depart-

ment, in a 1973 letter to -he Bulgarian Embassy and in

internal memoranda of 1968 and 1973, that the New York

office was part of the Embassy while reiterating the State

Department’s position on the immunity status of subord-

inate commercial office personnel.

In 1972 the President ratified the Vienna Convention on

Diplomatic Relations, and in 1978 the Congress codified the

Vienna Convention as domestic law in the Diplomatic Rela-

tions Act, 22 U.S.C. §254. Partially in response to these

events, in 1974, 1977 and 1978 the State Department sent

circular notes to all chiefs of missions in Washington, in-

cluding Bulgaria, stating its position that embassy staff en-

titled to diplomatic privileges and immunities must reside

in Washington, D.C. The State Department’s position on the

immunity status of New York subordinate commercial office

employees was repeated in an exchange with Bulgaria in

1981. Bulgaria, through this period, continued to insist

that, because its Commercial Office in New York was, by the

Bi-lateral Agreement, part of its Embassy, subordinate

officials would have the same privileges and immunities

concededly enjoyed by officials exercising the same func-

tions in Washington. While the Executive Branch of the

United States Government continued to adhere to its posi-

tion on the status of subordinate commercial staff in New

York, the District Court for the Southern District of New

York in 1978 adopted the position (in a civil case) that—

given the ratification of the Vienna Convention and the

enactment of the Diplomatic Relations Act—such subord-

inate staff of an Embassy commercial office in New York

enjoyed all the immunities enjoyed by persons occupying

the same positions in Washington, D.C. Vulcan Iron Works

v. Polish American Machinery Corp., 472 F. Supp. 77

(S.D.N.Y., 1979), rev’d on other grounds on reconsidera-

tion, 479 F. Supp. 1060 (S.D.N.Y., 1979).

This situation prevailed when Mr. Kostadinov arrived

to take up his duties as Assistant Commercial Counselor

in the Office of the Commercial Counselor of the Bulgarian

Embassy in New York in 1979. The District Court found

that Mr. Kostadinov consistently was notified to and ac-

cepted by the United States as Assistant Commercial Coun-

selor of the Bulgarian Embassy’s Commercial Counselor’s

Office in New York. And, critically, in a 1968 memorandum

relied upon by the District Court, the State Department

stated that persons employed in the commercial office of an

Embassy in New York shall “be staff members of the Em-

bassy assigned to the commercial office.” As the District

Court said, “{[T]he memorandum also suggests that ‘per-

sons applying for visas outside the United States for as-

signment to the Commercial Office of an Embassy should

indicate that they will be staff members of the Embassy

assigned to the Commercial Office.” App. B. at 32a. In

making his application for a visa Mr. Kostadinov and his

Government followed the procedures of this memorandum

exactly. These procedures are consistent, as well, with

Article 10 of the Vienna Convention (see infra pp. 17-18).

This factual record was wholly ignored by the Court of

Appeals in reaching its decision that, while the New York

office is “mission premises,” the persons there employed

are not members of the mission staff.

Reasons for Granting the Writ

This case, of first impression, involves important rights

asserted in reliance upon federal treaty obligations. The

Court of Appeals opinion, repudiating the solemn obliga-

tions of the 1963 Bi-lateral Agreement between Bulgaria

and the United States, cannot be reconciled with the doc-

trine of this Court as expressed in United States v. Bel-

moat, 301 U.S. 324 (1937) and United States v. Pink, 315

U.S. 203 (1942). The unsupported and erroneous interpre-

tation of the Vienna Convention by the Court of Appeals

compromises the confidence which over a hundred States

have reposed in the treaty; stating their belief “that an

international convention on diplomatic intercourse, privi-

leges and immunities would contribute to the development

of friendly relations among nations, irrespective of their

differing constitutional and social systems.” App. C at 52a.

In the following sections, we first analyse the conse-

quences and effect of the Bi-lateral Agreement negotiated

with Bulgaria in 1963, and then in that context address the

obligations of the United States under the Vienna Conven-

tion on Diplomatic Relations.

1. The Bi-lateral Agreement, Incident to the Claims Settle-

ment Between Bulgaria and the United States, in Which

the Bulgarian Mission Was Authorized to Establish the

Office of Its Commercial Counselor in New York Is an Inter-

national Compact Requiring the United States to Recognize

the Office As Part of the Mission and Its Employees as

Members of the Mission Staff

Agreements constituting international compacts binding

upon the United States have taken varied and composite

forms. As this Court held in United States v. Belmont, 301

U.S. 324, 330-31 (1937):

A treaty signifies ‘a compact made between two or

more independent nations, with a view to the public

welfare. B. Altman & Co. v. United States, 224 U.S.

583, 600, 32 S.Ct. 593, 596, 56 L.Ed. 894. But an inter-

national compact, as this was, is not always a treaty

which requires the participation of the Senate. There

are many such compacts, of which a protocol, a modus

vivendi, a postal convention, and agreements like that

now under consideration are illustrations.

In United States v. Pink, 315 U.S. 203, 223 (1942), this

Court found “that recognition of the Soviet Government,

the establishment of diplomatic relations with it, and the

Litvinov Assignment were ‘all parts of one transaction, re-

sulting in an international compact between the two govern-

ments’ [Quoting Belmont, supra.].”As with the Bi-lateral

Agreement between Bulgaria and the United States, several

different acts and declarations together constituted the

single product of the negotiations between the Sovereigns.*

It is the intention of the signatories that is decisive, not

the form in which their intentions are expressed. The

“Litvinov Assignment” was a letter. More recently the

Court has found that the agreement terminating the Iranian

hostage crisis is a binding international compact, although

composed of various parts and embodied in the form of two

* See, Appendix C at 80a.

“Declarations” of a third state, the Democratic and Popular

Republic of Algeria. Dames & Moore v. Regan, 453 U.S.

654 (1981). It is well established that the President may

enter into certain binding agreements with foreign nations

without complying with the formalities required by the

Treaty Clause of the Constitution. See Weinberger v.

Rossi, 456 U.S. 25 (1982).

In light of these precedents, the Court of Appeals dis-

missal of an essential element of the Bi-lateral Agreement

as something “merely contained in a press release issued

by the United States ...” is a serious error, not only

because it contradicts the established doctrine of this Court

but because it denigrates the treaty obligations of the

United States. Those obligations, set forth in the Bi-

lateral Agreement, were expressed in the agreement as a

whole. To discard one essential part of the Bi-lateral

Agreement, as did the Court of Appeals, destroys the good

faith that underlay the motives of both governments. As

the record shows, without agreement on the entire trans-

action, including each of its parts, there would have been

no claims settlement—the objective sought by the States

on behalf of its nat onals.

The record below established that the authorization of

the establishment in New York of the Bulgarian mission’s

commercial office was a quid pro quo for the claims settle-

ment sought by the United States. The statement referring

to that authorization was variously characterized by the

State Department as a “bargaining lever” and an “associ-

ated feature” of the claims settlement. Even the language

of the release was bargained for in return for specific

changes in the language of the claims settlement agreement.

The manner in which the principles in Belmont and Pink

should be applied to circumstances such as those existing

in this case was clearly enunciated by the United States

Court of Appeals for the Fourth Circuit in United States

v. County of Arlington, 669 F.2d 925 (4th Cir.), appeal

dismissed, cert. denied, 459 U.S. 801 (1982). That decision

is in sharp variance with the attitude of the Court of Ap-

peals in this case.

The consequences of this error are crucial and lead to

the subsequent misconstruction of the Vienna Convention

by the Court of Appeals. Since the United States had

entered into a binding agreement with Bulgaria authorizing

the Bulgarian mission to open its commercial office in New

York, the United States could not unilaterally later with-

draw the authorization, explicitly or implicitly. Indeed, the

State Department in the intervening years since the 1963

agreement has acknowledged that the premises occupied by

the New York office are “part of the Embassy”, that the

New York commercial office has “diplomatic status” and

that persons assigned to the New York commercial office

are “staff members of the Embassy.” In the face of this

record, the decision of the Court of Appeals that under the

Vienna Convention the United States had rejected the em-

ployees of the commercial office as members of the mission

and therefore validly denied the required privileges and

immunities is flawed thrice-over. First, the United States

never claimed that the commercial office employees were

other than mission staff and, in the only reference in the

record, stated the opposite. Second, the Bi-lateral Agree-

ment required the United States to consider, as it did, the

commercial office in New York to be part of the mission

and the employees of the office to be members of the mission

staff. Third, as we demonstrate below, the language and

history of the Vienna Convention require that the members

of administrative and technical staffs of a commercial office

which is part of a mission be accorded immunity from the

criminal jurisdiction.*

* It seems appropriate to comment on the statements by the Dis-

trict Court and the Court of Appeals regarding the immunity

status of personnel of the New York office prior to the adoption of

the Vienna Convention. The District Court said: “It is probable

that this court would have been concluded by the suggestion that

(footnote continued on following page)

The construction adopted by the Court of Appeals that

the premises in New York are mission premises but that

the personnel are not staff members of the mission conflicts

with the intent of the parties to the agreement as shown

by the record below. “[W]Je are aware of no rule of inter-

pretation applicable to treaties, or to private contracts,

which would authorize the Court to make exceptions by

construction, where the parties to the contract have not

thought proper to make them.” The Society for the Propa-

gation of the Gospel in Foreign Parts v. New Haven, 8

Wheaton 464, 490 (1823). The United States has not re-

voked or abrogated the 1963 agreement. The partial abro-

gation worked, sub silentio, by the opinion of the Court of

Appeals requires review.

(footnote continued from previous page)

Mr. Kostadinov had no immunity if that suggestion had been made

prior to the time that the Vienna Convention was enacted.” We

assume that the Court of Appeals’ statement that “It appears that

prior to the Convention there would be no question as to the power

of the United States to deny diplomatic immunity to Kostadinov”

means the same thing, namely, that prior to the Vienna Convention,

the judiciary would have been “concluded” by the suggestion of

the Executive. See In re Baiz, 135 U.S. 403 (1890). It should be

pointed out, however, that there is a distinction between power

and right. In light of the Bi-lateral Agreement, any suggestion

prior to 1978 that members of the staff of the Embassy were not

entitled to immunity from criminal prosecution would have violated

the law in force since the earliest days of the Republic, 22 U.S.C.

§252 et. seq., pursuant to which all members of the staff of an

Embassy (regardless of rank) and their families and servants were

entitled to immunity from all civil and criminal process. That

statute was a codification of the then prevailing international law.

Thus Bulgaria had a right to believe, as it did, that the personnel

of its Embassy notified to and accepted by the United States as

members of the staff of the Embassy, were entitled to the privileges

and immunities established by law. It is conceced that no view to

the contrary was expressed to Bulgaria before or during negotia-

tions leading to the Bi-lateral Agreement and no exceptions to the

law were written into the agreement, which has never been termi-

nated.

2. The Vienna Convention on Diplomatic Relations Requires

That the United States Grant Immunity From the Criminal

Jurisdiction to a Person Employed by a Foreign Mission

and Notified to the United States as a Member of Its Admin-

istrative and Technical Staff in a Mission Office in New

York Where: (A) The Office Was Established in New

York as an Integral Part of the Mission With the Express

Consent of the United States; (B) The Member of the Mis-

sion’s Administrative and Technical Staff Was Notified to

and Accepted by the United States; (C) The Function

Performed by the Member of the Mission, if Carried Out

in Washington, Would Concededly Entail Immunity From

Criminal Prosecution Under the Vienna Convention

In 1972, the President ratified the Vienna Convention on

Diplomatic Relations with the advice and consent of the

Senate. In 1978, the Congress enacted the Diplomatic Rela-

tions Act which provides, inter alia, that “[a]ny action or

proceeding brought against an individual who is entitled to

immunity with respect to such action or proceeding under

the Vienna Convention on Diplomatic Relations . . . shall

be dismissed.” 22 U.S.C. §254(d).* This case is the first in

which United States courts have been called upon to inter-

pret the Vienna Convention on a claim of immunity from

the criminal jurisdiction advanced by a person for whom a

foreign sovereign, and party to the Convention, has assert-

*Under Article 37(2) of the Vienna Convention, members of

the “administrative and technical staff” of the mission “enjoy the

privileges and immunities specified in Articles 29 to 35, except that

the immunity from civil and administrative jurisdicton . . . spec-

ified in §1 of Article 31 shall not extend to acts performed outside

the course of their duties.”

Article 29 provides that :

The person of the diplomatic agent shall be inviolable. He

shall not be liable to any form of arrest or detention. The

receiving State shall treat him with due respect and shall take

all appropriate steps to prevent any attack on his person, free-

dom or dignity.

Article 31 provides, inter alia, that “A diplomatic agent shall

enjoy immunity from the criminal jurisdiction of the receiving

State.”

ed the privileges and immunities due to a member of its

mission in the United States.*

The critical error of the Court of Appeals lay in its

failure to comprehend the nature and effect of the Bi-lateral

Agreement. The artificial dichotomy made between the

premises of the mission and the members of the staff of the

mission is wholly without support in the record and clearly

without basis in the context of the Bi-lateral Agreement.**

This caused the Court of Appeals to misread the history of

the negotiation of the Vienna Convention as to the status

of commercial officers attached to missions, and then mis-

construe the provisions of the Vienna Convention governing

limits on the size of mission, the establishment of mission

offices outside of the capital, and notification, acceptance

and rejection of persons appointed as mission staff.

The International Law Commission, an agency of the

United Nations, in its 1957 and 1958 sessions produced

draft articles and a commentary that provided the basis

for the deliberations in Vienna and their product, the Con-

vention on Diplomatic Relations. The draft articles and

the Vienna Convention itself (Article 3, J1(e)), establish

that the development of economic relations between the

sending and receiving states is among the functions of a

diplomatic mission. A proposal was made to the Interna-

* The position of the District Court that treaty interpretation is

a judicial function, and that the meaning attributed to treaty pro-

visions by the executive may be found to be incorrect, is in aceord

with a fundamental line of authority. See United States v. Schooner

Peggy, 1 Cranch 103 (1803) ; United States v. Perchemann, 7 Peters

57 (1833) ; United States v. Fitzpatrick, 214 F. Supp. 425 (S.D.N.Y.

1963). The Court of Appeals accepted that, at least after the pas-

sage of 22 U.S.C. 254(d), the United States is without power to

deny immunities to persons granted immunities by the Vienna Con-

vention, and, implicitly, that the determination is for the judiciary.

** Throughout the proceedings in the District Court, the United

States denied that the Bulgarian Trade Office in New York is part

of the Bulgarian Embassy. In the Court of Appeals, however, the

United States stated that “for the purposes of this appeal we do

not challenge the District Court’s finding that the trade office is

‘part of the Embassy’ and therefore that its premises are inviolable.”

tional Law Commission that persons exercising commercial

functions be excluded from the coverage of the Convention.

The ensuing debate showed virtually no support for this

view and the International Law Commission rejected the

proposal, The governing standard was expressed by the

Chairman of the Commission: “If a trade mission was a

part of a diplomatic mission, its members would automatic-

ally enjoy diplomatic status. If, on the other hand, a trade

mission was a distinct body its members would not auto-

matically enjoy diplomatic status.” Year Book of Inter-

national Law Commission 1958, Vol. 1, p. 110, 947. The

commentary adopted by the International Law Commission

states the same clear standard; persons exercising com-

mercial functions who are attached to, or part of, a diplo-

matic mission (“commercial attachés”) are covered by the

Convention; persons exercising commercial functions but

not attached to a diplomatic mission (“commercial repre-

sentation as such’’) are not covered.

In view of this resolution of the question, the finding of

the Court of Appeals that “[{i]t is perfectly clear that

commercial representation is not covered by the Conven-

tion” is a misstatement of the intent of the parties to the

Vienna Convention, In this regard, it should be noted that

the United States has “commercial” or “economic” officers,

and supporting administrative and technical staff, attached

to our missions to foreign states, The position of the United

States is that these officials are entitled to immunity from

the criminal jurisdiction pursuant to the Vienna Conven-

tion, And the United States acknowledges the Vienna Con-

vention status, as administrative and technical staff of a

mission, of persons who reside in Washington, D.C. and

exercise the functions that Mr. Kostadinov exercised in

New York. In the district court, the United States conceded

that staff of the Bulgarian Commercial Counselor—if only

they were to reside in Washington, D.C.—were, and would

be, acknowledged to enjoy immunity from criminal prosecu-

tion under the Vienna Convention. Insofar as the Court of

Appeals denied immunity to Mr. Kostadinov because “[i]t

is perfectly clear” that his functions are “not covered by

the Convention,” the opinion ignores not merely the clear

meaning of the Convention but United States practice to

date.

The mistaken holding of the Court of Appeals on the

scope of the coverage of the Vienna Convention cannot be

saved by the term “representation.” The United States has

defined the role of its many “Commercial Officers” attached

to our missions abroad as follows: “At larger posts, Com-

mercial Officers represent U.S. commercial interests within

their country of assignment.” (emphasis supplied) Key

Officers of Foreign Service Posts, Department of State

Publication 7877, Revised January 1984, In light of the

above, the Court of Appeals opinion that “it is perfectly

clear that commercial representation is not covered by the

Convention” is more than a misunderstanding of the lan-

guage and history of the Vienna Convention and a distorted

reflection of general international practice, but pregnant

with mischief. This mistaken finding should not be per-

mitted to represent the United States position without

review.

The Vienna Convention provisions on limits on the size

of missions (Article 11) were innovative, and considerable

debate took place, The Court of Appeals wholly miscon-

strued these provisions in finding authority under Article

11 for the denial of privileges and immunities to Mr. Kos-

tadinov. Article 11 permits the receiving state to limit the

size of a mission and to refuse to accept officials of a par-

ticular category. The Court of Appeals, simultaneously

misconstruing both provisions of Article 11, found that the

United States had “limited the size of the Bulgarian mission

by refusing to accept as members of the mission officials of

a certain category, namely, assistant commercial counselors

based in New York.” App. A at 19a. First, addition of the

phrase “as members of the mission” to the language of

Article 11 is a logical, historical and factual error. This

interpretation of Article 11, that the “limits” referred to

go to the extension of privileges and immunities rather than

to numbers, is unsupportable in the history of, or debates

on, the Vienna Convention. The leading treatise on the

Vienna Convention, Diplomatic Law (1976), by Hileen

Denza, having first reviewed the history of the Article,

forcefully states the opposite conclusion that Article 11

“was the first attempt to deal with [the problem of unreas-

onably large missions] by requiring restriction of numbers

instead of by reduction of privileges and immunities”. (em-

phasis supplied) E. Denza, Diplomatic Law (1976), p. 48.

The District Court correctly stated the law and facts:

Under Article 11 of the Vienna Convention, a re-

ceiving state, in this case the United States, has dis-

cretion over the size of the mission, over the numbers

of persons at the mission. There is nothing in the

Vienna Convention, however, that gives the receiving

state control over the question of privileges and im-

munities. The Vienna Convention in this particular

departs from history. It makes it very clear that a

receiving state may limit size. It gives no authority

to a receiving state to withhold privileges. ... This

record indicates that the Department of State has made

no effort to limit the numbers of persons working in

the Office of the Commercial Counselor in New York.

App. B at 42a-438a.

The second misinterpretation of Article 11, that “officials

of a certain category” refers to a geographical (“based in

New York”) rather than functional “category” is no less

mistaken. The debates on the section refer exclusively to

functional categories. The geographical question is dealt

with in Article 12, not Article 11, of the Convention. Article

12 provides that “the sending State may not, without the

prior express consent of the receiving State, establish offices

forming part of the mission in localities other than those

in which the mission itself is established.” Again, the record

is unambiguous; in 1963 the United States gave express

consent to Bulgaria to establish, in New York, the office of

the Commercial Counselor as part of the mission.*

The entire mistaken project of distinguishing the phys-

ical space (accepted by the United States as part of the

mission) from the staff (as “rejected” by the United States

as staff members of the mission) founders on the fact that

the State Department explicitly considered the New York

commercial office staff to be staff members of the Embassy.

This crucial statement, quoted in the District Court opinion

and neither acknowledged nor distinguished by the Court

of Appeals, reads as follows: “[P]ersons applying for

visas outside the United States to enter the United States

for assignment to the [New York] commercial office of the

Embassy should indicate that they will be staff members of

the Embassy assigned to the commercial office.” (emphasis

supplied) App. B at 32a. Mr. Kostadinov followed exactly

this State Department procedure. Cf. United States v.

Dizdar, 581 F.2d 1081 (2d Cir. 1978).

Although Mr. Kostadinov and his government complied

with State Department procedure for notification and with

Article 10 of the Vienna Convention, the Court of Appeals

reaches the conclusion that the United States made “clear”

that Mr, Kostadinov was not “acceptable”, thus allegedly

complying with Article 9 of the Vienna Convention. Arti-

cle 7 of the Vienna Convention provides that, subject to

various other provisions, “the sending State may freely

appoint the members of the staff of the mission.” Article

9 of the Vienna Convention authorizes the receiving state

to declare any member of the staff of a mission notified to

it to be “not acceptable,” in which case the sending State

must recall the person concerned or terminate his or her

* The Court of Appeals acknowledges that the language of Arti-

cle 12 is inconsistent with its opinion. A “mission” includes people.

Therefore, “offices forming part of the mission” must necessarily

include mission staff. This the State Department understood. See

App. B at 32a.

functions with the mission. Article 10 requires that a send-

ing State notify the appointment of the members of the

mission, their arrival and departure and, where possible,

give prior notification of arrival and departure. There is

no dispute that Bulgaria appointed Mr. Kostadinoy “in the

commercial service of the Embassy of the People’s Republic

of Bulgaria in Washington” and so notified the United

States prior to his arrival.* The D ‘strict Court found that

it is “abundantly clear from the record before me that the

Department of State knew precisely where Mr. Kostadinov

would be working and in what capacity.” App. B at 46a. The

District Court went on to find “that Mr. Kostadinov com-

plied with notification requirements, nor did the United

States specifically object in the ways prescribed in the

convention. It never declared him unacceptable .. . [i]t

never expressed any objection to Mr. Kostadinov or to him

serving in the position of assistant commercial counselor.”

App. B at 47a.

The United States is bound by the 1963 accord with Bul-

garia to acknowledge that the office of the Embassy’s Com-

mercial Counselor in New York is an integral part of the

Bulgarian mission to the United States. The United States,

in fact, accepted that the staff of the office were “staff mem-

ber[s] of the Embassy”. Bulgaria’s notification of Mr.

*The Court of Appeals misstated the record when it found:

Kostadinov argues that he is a ‘member of the staff of the

mission’ under the convention, for he works in the New York

trade office, which is housed in mission premises. Since mission

premises and the mission itself are independent concepts, how-

ever, it does not follow that his working in mission premises

requires the conclusion that Kostadinov is a member of the

mission.

App. A at lla.

Neither Mr. Kostadinov nor his Government have ever argued

that he is entitled to immunity from criminal prosecution merely

because he works in the premises of the mission. That entire con-

cept has been artificially created by the Court of Appeals without a

single citation to the record to support it. Mr. Kostadinov’s claim

to immunity is based upon his notification to and acceptance by

the United States as a member of the staff of the mission.

Kostadinov as a member of the staff of the mission was

precisely in accord with the Vienna Convention, Articles 7

and 10. The United States never notified Bulgaria that Mr.

Kostadinov was “not acceptable” in accord with Article 9;

and in fact, accepted Mr. Kostadinov, issuing three visas

with knowledge of his notification as a member of the staff

of the Embassy.

Yet the Court of Appeals reversed the District Court’s

recognition of Mr. Kostadinov’s right to immunity under

the Vienna Convention, adopting a distorted interpretation

in full disregard of the record in the case. This decision,

violative of international law, now stands as the sole opin-

ion of a United States Court of Appeals on questions of

ecreat international interest and consequence, and there-

fore, merits review.

CONCLUSION

For all the above reasons, it is respectfully prayed that

the writ of certiorari be granted.

Respectfully submitted,

Martin Popper

(Counsel of Record)

JoHN Mace

Wotr Popper Ross Wotr & Jones

845 Third Avenue

New York, New York 10022

(212) 759-4600

Attorneys for Petitioner

Dated: July 9, 1984

ert

Appendix A—Opinion of U.S. Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1133—August Term 1983

Argued: April 11, 1984 Decided: May 10, 1984

Docket Nos. 84-1042, 84-1092

UNITED STATES OF AMERICA,

Appellant,

—against—

PENYU BAYCHEV KOSTADINOV,

Defendant-A ppellee.

Before:

TIMBERS and PRATT, Circuit Judges,

and METZNER, District Judge.*

—t-

Hon. Charles M. Metzner, of the United States District Court for the

Southern District of New York, sitting by designation.

3541

Appendix A—O pinion of U.S. Court of Appeals

Appeal from an order dismissing an indictment by the

United States District Court for the Southern District of

New York, Vincent L. Broderick, Judge, on the ground

that the defendant is immune from criminal prosecution

by virtue of diplomatic immunity.

Order reversed and the indictment reinstated.

APPEARANCES:

RUTH GLUSHIEN 'WEDGWOOD, Assistant

United States Attorney for the Southern

District of New York, New York (Ru-

dolph W. Giuliani, United States Attor-

ney, Paul Shechtraan, Assistant United

States Attorney, New York, New York, of

counsel), for Appellant.

MARTIN PopPER, New York. New York (John

Mage, Wolf Popper Ross Wolf & Jones,

New York, New York, of counsel), for

Defendant-Appellee.

METZNER, District Judge:

The United States appeals from an order of the United

States District Court for the Southern District of New

York, Vincent L. Broderick, Judge, dismissing an es-

pionage indictment against the appellee on the ground

that the defendant is fully immune from the criminal

jurisdiction of the United States by virtue of diplomatic

immunity. Vienna Convention on Diplomatic Relations,

3542

Appendix A—O pinion of U.S. Court of Appeals

23 U.S.T. 3227, T.1.A.S. No. 7502, 500 U.N.T.S. 95, and

22 U.S.C. § 254d (1982) (Convention). For the reasons

stated below, we reverse.

I. The facts leading io this appeal

Appellee, Penyu Baychev Kostadinov, is an employee

of the Bulgarian Ministry of Foreign Trade, and serves as

an assistant commercial counselor in that country’s New

York trade office. With the permission of the United

States, the Bulgarian Legation (later Embassy) in Wash-

ington opened the New York office in 1963 for the

purpose of promoting trade between the two countries.

Bulgaria designated a commercial counselor to head up

this office, and he was specifically granted diplomatic

immunity by the United States Government. This govern-

ment recognizes the premises housing the New York office

as part of the premises of the Bulgarian Embassy in

Washington.

The record reflects that on September 23, 1983, Kos-

tadinov met with another individual in a restaurant in

Manhattan. There he purchased from that individual a

secret document entitled “Report on Inspection of

Nevada Operations Office,” which concerned various

security procedures for American nuclear weapons. At

that meeting Kostadinov paid the individual $300, ar-

ranged to meet the person again to make further pay-

ment, and gave the person a list of thirty additional

classified documents which Kostadinov wanted to ac-

quire. Unbeknown to Kostadinov, the individual had

been providing information to the Federal Bureau of

Investigation, whose agents recorded the meeting on

audio and videotape. FBI agents arrested Kostadinov as

he left the meeting. He subsequently was indicted on one

count of attempted espionage, 18 U.S.C. § 794(a) (1982),

3543

Appendix A—Opinion of U.S. Court of Appeals

and one count of conspiracy to commit espionage, 18

U.S.C. § 794(c) (1982).

Kostadinov moved before Judge Broderick to dismiss

the indictment, claiming that he had diplomatic immunity

from criminal prosecution under the provisions of the

Convention. Judge Broderick granted Kostadinov’s mo-

tion, finding that since the New York trade office at

which Kostadinov worked was a part of the Bulgarian

Embassy, the title “assistant commercial counselor”

makes him a member of the staff of the “embassy”! as

defined by the Convention, entitling him to immunity.’

Il. The Vienna Convention

A. Provisions and history

The sole issue on this appeal is whether, under the

provisions of the Convention, approved by the Senate in

1965 and ultimately ratified by this country in 1972, as

well as 22 U.S.C. § 254d, Kostadinov was a member of

the Bulgarian mission immune from criminal prosecution

in this country. It appears that prior to the Convention

there would be no question as to the power of the United

States to deny diplomatic immunity to Kostadinov. Sec-

tion 254d provides that an indictment against an individ-

ual protected by the Convention shall be dismissed.

Under the Convention, diplomatic privileges and im-

munities are determined with reference to a country’s

“mission” abroad, but nowhere does the Convention

! The court below used the word “embassy,” which is the term

generally used. However, the Convention refers only to “mission”

which will be used in this opinion.

2 Kostadinov relies on an opinion by Judge Lasker who previously

adopted similar reasoning, in a civil setting. Vulcan Iron Works vy.

Polish American Machinery Corp., 472 F. Supp. (S.D.N.Y.), rev’d on

cther grounds on reconsideration, 479 F. Supp. 1060 (S.D.N.Y. 1979).

3544

Appendix A—O pinion of U.S. Court of Appeals

expressly define the term “mission.” Article 1 does define

the “members of the mission” as “the head of the mission

and the members of the staff of the mission,” which

includes “the diplomatic staff . . . the administrative and

technical staff and . . . the service staff of the mission

. . .” The “administrative and technical staff,” in turn,

is defined as “the members of the staff of the mission

employed in the administrative and technical service of

the mission . . . .” It is to this group that Kostadinov

claims to belong, and indeed, Article 3 lists one of the

functions of a diplomatic mission as “developing” the

“economic” relations between the sending and receiving

states.’

Article 7 provides, in pertinent part, that subject to

Articles 9 and 11, “the sending State may freely appoint

the members of the staff of the mission.” Article 9 states

that:

3 In its 1958 discussion of draft Article 3 (later adopted in virtually

identical form as final Article 3), the International Law Commission

recognized that nations often sent abroad commercial representatives

whose entitlement to diplomatic immunities varied from country to

country. The rapporteur had proposed a commentary stating in part

that “[a]n overlapping of functions may easily occur in the course of

co-operation between the trade delegations and the diplomatic mission,

which will make it difficult to determine whether the trade delegation

or its members have been notified as belonging rightly to the mission.”

The draft commentary also observed that the subject of trade repre-

sentatives was not suitable for treatment “by general provisions,” but

was more appropriately covered by “commercial treaties.” Summary

Records of the International Law Commission, [1958] 1 Y.B. Int’! L.

Comm’n 110.

After heated debate over the proper status of trade representatives,

reflecting the fact that various nations treated them differently, Sum-

mary Records at 110-11, 235, the Commission adopted a simple

commentary. It wrote that “[w]ith regard to trade missions, it should

be noted that the question of commercial representation as such—i.e.,

apart from the commercial attaches of a diplomatic mission—is not

dealt with in the draft because it is usually governed by bilateral

agreement.” Report of the International Law Commission to the

General Assembly, [1958] 2 Y.B. Int’] L. Comm’n 90.

3545

Appendix A—Opinion of U.S. Court of Appeals

“1. The receiving State may at any time and

without having to explain its decision, notify the

sending State that the head of the mission or any

member of the diplomatic staff of the mission is

persona non grata or that any other member of the

staff of the mission is not acceptable. In any such

case, the sending State shall, as appropriate, either

recall the person concerned or terminate his func-

tions with the mission. A person may be declared

non grata or not acceptable before arriving in the

territory of the receiving State.

2. If the sending State refuses or fails within a

reasonable period to carry out its obligations under

paragraph | of this Article, the receiving State may

refuse to recognize the person concerned as a mem-

ber of the mission.”

Article 11 provides that:

“1. In the absence of the specific agreement as to

the size of the mission, the receiving State may

require that the size of a mission be kept within limits

considered by it to be reasonable and normal, having

regard to circumstances and conditions in the receiv-

ing State and to the needs of the particular mission.

2. The receiving State may equally, within similar

bounds and on a non-discriminatory basis, refuse to

accept officials of a particular category.”

The above provisions are better understood after ex-

amining the groundwork performed by the International

Law Commission (Commission) and the discussions by

the delegates to the Vienna Conference which prepared

the Convention.

3546

Appendix A—Opinion of U.S. Court of Appeals

In 1954 the Commission, an agency of the United

Nations, initiated work on the subject, and appointed a

“special rapporteur” to prepare a set of draft articles,

with a commentary. In 1957 the Commission adopted a

provisional set of articles, with an official commentary,

and submitted its work to the Secretary-General of the

United Nations, with a request that he transmit them to

constituent governments for their observations. The

General Assembly’s Sixth Committee also reviewed the

draft.

In 1958, after having received various comments in

response to its 1957 draft, the Commission adopted draft

articles and the rapporteur’s commentary, and forwarded

its work to the General Assembly with a recommendation

that U.N. member states conclude an international con-

vention based upon the draft. See generally Report of the

Interntional Law Commission to the General Assembly,

[1958] 2 Y.B. Int’] L. Comm’n 89 (Report), and sources

cited therein.

In 1959 the General Assembly requested the Secretary-

General to convene a conference in Vienna by the spring

of 1961, in order to prepare a convention on diplomatic

intercourse and immunities. The Assembly specifically

referred to the Vienna Conference the Commission’s 1958

report, comprising both the draft articles and the rappor-

teur’s commentary, “as the basis for its consideration of

the question of diplomatic intercourse and immunities.”

G.A. Res. 1450(XIV), 7 December 1959.

The Vienna Conference met and produced the Vienna

Convention on Diplomatic Relations.

The background material illuminates what we believe

to have been a misconception by the district court of the

meaning of the term “mission” in the Convention. The

court placed emphasis on the physical aspect of a “mis-

3547

Appendix A—Opinion of U.S. Court of Appeals

sion.” Under the Convention, a “mission” consists of a

group of people sent by one state to another; it does not

refer to the premises which they occupy in the receiving

state. This is made clear by the rapporteur’s commentary

to Article 6 of the Commission’s draft, which was later

adopted as Article 7 of the Convention. In his commen-

tary to that draft article the rapporteur wrote:

“While it is the sending State which appoints the

persons who comprise the mission, the choice of

these persons . . . may considerably affect relations

between the States, and it is clearly in the interests of

both States that the mission should not contain

members whom the receiving State finds unaccept-

able.”

Report at 91 (emphasis added). In a similar fashion, the

commentary to draft Article 10 (final 11) observes that

one of the “questions connected with the mission’s com-

position which may cause difficulty” is “ihat of the

choice of the persons comprising the mission.” Report at

92 (emphasis added).

In the general commentary to the draft articles, the

rapporteur stated that diplomatic privileges and immuni-

ties may be divided into three groups: “(a) Those relating

to the premises of the mission and its archives; (b) Those

relating to the work of the mission; (c) Personal privileges

and immunities.” Report at 94-95. In this case we are

concerned with (c).

Draft Article 19 (final 21) speaks of the receiving state’s

obligation to assist the sending state to acquire the “prem-

ises necessary for its mission,” and the rapporteur’s com-

mentary again draws the distinction between the mission

and the physical premises which it uses, speaking of

potential problems rendering it difficult “for a mission to

3548

Appendix A—Opinion of U.S. Court of Appeals

acquire the premises necessary to it.” Report at 95. Draft

Article 20 (final 22) delineates the immunity which at-

taches to the premises of a mission, which are expressly

defined by the rapporteur as including “the buildings or

parts of buildings used for the purposes of the mission,

whether they are owned by the sending State or by a third

party acting for its account, or are leased or rented”; the

premises are used “as the headquarters of the mission.”

Report at 95. Draft Article 43 (final 45) observes that

while a mission may be recalled, the receiving state must

“protect the premises of the mission,” or the sending state

“may entrust the custody of the premises of the mission”

to a third state. ]

One objection might be raised to the interpretation

differentiating between mission and premises, based upon

the final text of Article 12. The original draft required the

sending state to obtain the permission of the receiving

state before establishing “offices in towns other than

those in which the mission itself is established.” The final

text required permission to establish “offices forming

part of the mission in localities other than those in which

the mission itself is established.” At first blush this article

appears to be an isolated reference to physical structures

as comprising a “mission,” despite the many clear state-

ments to the contrary elsewhere in the Convention and

the commentary.

Here again, the rapporteur’s commentary clarifies the

intent of the article which was “included to forestall the

awkward situation which would result for the receiving

Government if mission premises were established in towns

other than that which is the seat of the Government.”

Report at 92 (emphasis added). The original draft of this

article clearly adopted the consistently accepted view that

a “mission” is composed of people, and premises are

where missions are housed.

3549

10a

ippendix A—Opinion of U.S. Court of Appeals

The change in language between the draft and the final

text was not intended to alter the purpose set forth by the

rapporteur. The records of the Vienna Conference dem-

onstrate that the additional words were inserted to make

it clear that such offices were to be physically inviolable

to the same extent as the mission’s primary premises.

However, this does not confer diplomatic immunity on

those who work there.

In addition, the delegates rejected the use of the all-in-

clusive term “premises” in this section in order to make it

clear that no consent was required for the establishment,

for example, of summer residences or homes outside the

boundaries of the capital.*

In its report to the Secretary of State, the United States

delegation to the Vienna Conference observed that Article

12 reflected “{p!resent international practice.”*° The

United States declared in 1939 that “the only foreign

diplomatic officers . . . permitted to reside and maintain

offices in New York City will be the ranking commercial

or financial officer,”® and it has continuously followed

that policy.

4 See Official Records of the United Nations Conference on Diplo-

matic Intercourse and Immunities, Vienna, 2 March-14 April 1961

(Geneva 1962) 108-12 (remarks of the delegates of the United Kingdom

and Turkey; remarks of the delegate of Cubz, observing that a

diplomatic mission might establish offices not forming part of the

mission).

The records of the International Law Commission’s consideration

and adoption of the draft article and commentary reflect similar

concerns. Summary Records, supra note 2, at 113-14, 239-40.

5 United States Delegation to the United Nations Conference on

Diplomatic Intercourse and Immunities, Report to the Secretary of

State, Dep't of State Pub. No. 7289 (1962). A position paper of the

United States delegation to the Vienna Conference noted the American

policy of declining to accredit subordinate trade office employees not

resident in Washington, and did not indicate that the Convention

would alter that practice. 7 Whiteman, Digest of International Law 9

(1970).

6 Letter from George T. Summerlin, Chief of Protocol of the State

Department, to the Belgian Ambassador to the United States (Novem-

ber 4, 1939).

3550

lla

Appendix A—Opinion of U.S. Court of Appeals

Finally, the Senate subcommittee considering the Con-

vention was informed by the State Department that the

Convention would apply to the “diplomats in Washing-

ton, and those in New York at the United Nations and

also those attached to the OAS and to the NATO head-

quarters who have diplomatic status [all of whom] num-

ber about 3,000 in this country, roughly,”’ The

subcommittee was further informed that the Convention

would not apply to trade office personnel."

B. The location of one’s office in mission premises does

not necessarily carry with it diplomatic status.

Kostadinov argues that he is a “member of the staff of

the mission” under the Convention, for he works in the

New York trade office, which is housed in mission prem-

ises. Since mission premises and the mission itself are

independent concepts, however, it does not follow that his

working in mission premises requires the conclusion that

Kostadinov is a member of the mission.

7 Vienna Convention on Diplomatic Relations: Hearing Before the

Subcommittee of the Senate Committee on Foreign Relations, 89th

Cong., Ist Sess. 22 (1965) (statement of Leonard C. Meeker, State

Department Chief Legal Adviser). At the same time the subcommittee

was informed that the text of Article 11, permitting a receiving state to

limit the size and categories of staff in sending states’ missions, would

not change current United States practice. /d. at table (list of Conven-

tion provisions and their effects, if any, on United States law).

8 Id. at 74. With this understanding, in his report to the Senate

recommending approval of the Convention, Senator Church wrote:

“Since there are a great many more foreign official representa-

tives in the United States than those attached to permanent diplo-

matic missions accredited to the Government of the United States,

the committee received assurances that the Vienna convention

applied only to the latter group. Members of trade missions and

other negotiating groups . . . are not within the scope of this

convention. It is strictly limited to the permanent diplomatic mis-

sions maintained by foreign governments at the seat of other

foreign governments.”

Ex. Rep. No. 6, 89th Cong., Ist Sess. 10 (1965).

3551

12a

Appendix A—O pinion of U.S. Court of Appeals

The members of the Commission and the delegates to

the Vienna Conference recognized that under existing

international law persons sent by a foreign nation to

perform consular duties may maintain offices upon mis-

sion premises, but not be members of the mission itself.’

The delegates demonstrated their clear aversion to confer-

ring diplomatic status upon purely consular officials even

when those officials maintained offices on mission prem-

ises. The delegates from Brazil, for example, observed

that consular sections on mission premises operated as

consulates, not as parts of the missions, and that consular

personnel often remain behind when their nation’s diplo-

matic missions are recalled. Official Records of the

United Nations Conference on Diplomatic Intercourse

and Immunities, Vienna, 2 March-14 April 1961 (Geneva

1962) 82 (Conference). In a statement echoed by several

other nations’ delegates, the Yugoslavian delegate added

that while most countries would tolerate the performance

of some consular functions on the premises of diplomatic

missions, the entire subject of consular relations was

outside the scope of that conference on diplomatic im-

munities. Conference at 82-83 (e.g., remarks of delegates

of Viet-Nam and Argentina). Ultimately, a separate con-

vention was prepared to regulate consular relations, the

Vienna Convention on Consular Relations, 21 U.S.T. 77,

T.1.A.S. No. 6820, 596 U.N.T.S. 261.

The Commision specifically discussed another instance

inwhich a person employed and working on mission

9 See also Restatement of the Foreign Relations Law of the United

States Title B (tent. Draft No. 4, 1983), intro. note at 23n (observing

that foreign officials may be sent abroad for various purposes, “and

may have offices at a diplomatic mission . . . but the status of such

persons, and their privileges and immunities, must be determined in

each case in the light of the agreement between the two states, and is

not determined by their title or designation.”).

3552

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Appendix A—O pinion of U.S. Court of Appeals

premises nonetheless would not be entitled to be consid-

ered a “member of the staff of the mission,” and, of

course, would not enjoy diplomatic privileges and im-

munities. Article 9 provides that a receiving state may

declare “at any time” that any member of the staff of a

mission is not acceptable, in which case the sending state

shall “recall the person concerned or terminate his func-

tions with the mission.” Should the sending state refuse or

fail within a reasonable period to do so, “the receiving

State may refuse to recognize the person concerned as a

member of the mission.”

In the commentary to the draft of this article, the

rapporteur observed that should the sending state fail to

fulfill its obligations concerning an unacceptable member,

the receiving state “may take action of its own accord. It

may declare that the functions of the person concerned

are terminated, that he is no longer recognized as a

member of the mission, and that he has ceased to enjoy

diplomatic privileges.” Report at 91. The delegates at

Vienna shared this understanding of the article. See, e.g.,

Conference at 102 (remarks of the delegates of India, Iraq

and the U.S.S.R.).'° Thus, if the sending state refuses to

act on the receiving state’s objections within a reasonable

time, the person concerned loses any diplomatic privileges

and immunities which he may once have had, and this is

so regardless of whether he continues to be employed by

the mission and is provided office space on its premises.

Nothing in the convention requires that the receiving state

must either expel the person concerned or accept him as a

member of the mission.

10 See, e.g., the 1958 Summary Records, supra note 3, at 237-38; and

the 1957 Commission proceedings, Summary Records of the Interna-

tional Law Commission, [1957] 1 Y.B. Int’l L. Comm’n 201-02, 225.

3553

14a

Appendix A—Opinion of U.S. Court of Appeals

The mere fact that Kostadinov’s office is located in a

building in New York which is considered part of the

Bulgarian Embassy does not, without more, establish that

he is one of the persons who comprise the Bulgarian

mission to the United States. Accordingly, we now ex-

amine whether pursuant to the terms of the Convention,

Kostadinov in particular enjoys diplomatic immunity.

C. Is Kostadinov a member of the mission?

During the course of the discussions in Vienna, the

Indonesian delegate remarked that it was not the Con-

ference’s intent to afford diplomatic status to all persons

holding diplomatic passports in cases where the receiving

state did not approve. Conference at 56. The State De-

partment has consistently refused to recognize “assistant

commercial counselors” as having diplomatic immunity

and has so notified Bulgaria.

The United States recognizes that New York City is the

proper place for offices engaged in expanding trade

between foreign countries and the United States. Diplo-

matic missions to the United States are confined to

Washington, D.C. The only exception to the requirement

that members of the diplomatic mission reside and work

in Washington is that the commercial counselor may also

head up the New York trade office and reside in New

York. Of course, the counselor may employ other persons

from his country to assist in conducting the work of the

office, but it does not follow that such persons are

members of the diplomatic mission.

In the negotiations between Bulgaria and the United

States in 1963 regarding settlement of financial claims,

the subject of improving trade between the countries was

discussed. The settlement of the claims was contained in a

3554

15a

Appendix A—Opinion of U.S. Court of Appeals

written agreement. Bulgaria requested insertion of lan-

guage in the agreement regarding trade between the coun-

tries, but the United States insisted on keeping the issues

separate. The subject of trade relationships was merely

contained in a press release issued by the United States

which stated:

“The United States is prepared to authorize the

Legation of the People’s Republic of Bulgaria to

establish in New York a commercial office which

would have the purpose of promoting trade between

our two countries. Both Governments will be pre-

pared to facilitate the travel of commercial represent-

atives and officials interested in increasing trade.”"'

Shortly after the issuance of this press release, the

director of the State Department’s Office for East Euro-

pean Affairs informed the Bulgarian Minister in Washing-

ton that only the Bulgarian Commercial Counselor in

Washington, who would also head the New York office,

would be entitled to diplomatic immunity. He further

stated that immunity would not be provided for anyone

else employed at the New York trade office. This message

was repeated on March 11, 1964, to the First Secretary of

the Bulgarian Legation in Washington.”

This policy takes on added meaning in this case when

we consider the discussions with regard to commercial

representation by the Commission. It is perfectly clear

that commercial representation is not covered by the

Convention.'? Kostadinov asserts that the press release

i Department of State, For the Press, No. 355 (July 2, 1963).

12 Department of State, Memorandum of Conversation among Messrs.

Vedeler, White and Molerov, March 11, 1964.

13 See supra note 3.

3555

16a

Appendix A—Opinion of U.S. Court of Appeals

constitutes a “Bi-Lateral Agreement” which makes him a

commercial attache with diplomatic immunity. Certainly a

press release is not a bi-lateral agreement.

The State Department again reminded Bulgaria of its

policy regarding New York trade missions on April 25,

1973, in denying the request by the Bulgarian Embassy in

Washington for diplomatic license plates for newly ar-

rived trade representatives in New York."

Thrice in the next five years, in 1974,'° 1977'® and

1978,'’ the State Department sent circular notes to the

chief diplomatic officer of each Washington embassy

restating the longstanding United States policy that all

mission personnel entitled to diplomatic privileges and

immunities, with the exception of the senior financial,

economic and commercial officers in New York, must

reside in the Washington area.

14 The letter read as follows:

“As you know, it is the policy of the Department of State to

accept for inciusion in the Department’s ‘Diplomatic List’ only the

officer-in-charge of an Embassy Commercial or Financial Office in

New York. It is the general practice under such circumstances, since

only that officer enjoys privileges and immunities, to issue only

three sets of DPL license plates; one for the official vehicle, one for

the automobile of the diplomatic officer and one for that of his

wife.

In view of the foregoing, I regret that it will not be possible to

authorize the issuance of DPL license plates for automobiles of

other personnel of the office of the Commercial Office of the

Bulgarian Embassy in New York.”

Letter from State Department Assistant Chief of Protocol to Second

Secretary of Bulgarian Embassy, April 25, 1973.

15 Reprinted in Department of State, Office of the Legal Adviser,

Digest of United States Practice in International Law 1974 at 157-58.

16 Reprinted in Department of State, Office of the Legal Adviser,

Digest of United States Practice in International Law 1978 at 536-37.

17 Id. at 532-36.

3556

17a

Appendix A—Opinion of U.S. Court of Appeals

In May, 1979. Puigaria notified the United States that it

was sendins, Kostadinov “in the commercial service of the

Embassy of the Peoples’ Republic of Bulgaria in Wash-

ingtun” to replace Stefan Kossev. Kossev was an assistant

commercial counselor in New York City. At that time

Bulgaria knew that Kostadinov would not be accepted by

the United States as a member of the mission. Although

the United States did not formally notify Bulgaria that

Kostadinov was “not acceptable,” the whole course of

conduct prior to his arrival and thereafter made it abun-

dantly clear that the United States did not consider any

person sent by any country with such assignment accept-

able as a member of a mission.

This government issued an A-2 visa to Kostadinov.

Such a visa does not necessarily confer diplomatic immu-

nity. See 8 U.S.C. § 1101(a)(15)(A)(i), (ii) (1982); 22

C.F.R. § 41.12 (1983). This exchange of documents did

not constitute a withdrawal by the United States of its

understood policy regarding officers of a trade mission in

New York. They did not constitute an acceptance of

Kostadinov as a member of the Bulgarian diplomatic

mission entitled to immunity.

Subsequent to his arrival, Kostadinov never received a

diplomatic identity card and his name never appeared on

the blue or white lists prepared by this government which

indicate that a person has diplomatic immunity. He

worked in the trade office in New York City.

In January 1981 the State Department restated its

position to the Bulgarian Embassy in connection with

Mirolyub Vulov, who had been assigned to the Bulgarian

trade office in New York.'"* In April 1981, in another

context, the Bulgarian Commercial Counselor was again

18 See Cable from State Department to United States Embassy in

Sofia, January 31, 1981.

3557

18a

Appendix A—Opinion of U.S. Court of Appeals

advised of the position of the United States.'? On May 29,

1981, an official of the Bulgarian Ministry of Foreign

Affairs met with representatives of the United States

Embassy in Sofia and specifically referred to the fact that

the United States did not accord its subordinate New

York trade officers diplomatic privileges and immuni-

ties.”°

As noted above, in the absence of a specific agreement

as to the size of the mission, Article 11 permits the

receiving state to “require that the size of a mission be

kept within limits considered by it to be reasonable and

normal” with regard to conditions in the receiving state

and the needs of the mission concerned.” That article also

19 The Bulgarians were told that:

“Bulgarian officials assigned to the United States Receive A visas,

but that the visa itself did not confer diplomatic status or immunity.

As a matter of policy, diplomatic missions were required to be

located in the District of Columbia. . . to prevent a proliferation

of offices and persons with diplomatic status around the country.

[The State Department officer] said a number of countries, includ-

ing Bulgaria, had been permitted to have one officer from the

Embassy with diplomatic status resident in New York on an excep-

tional basis because of that city’s commercial significance. None of

the other personnel assigned to New York by Bulgaria or by other

countries with similar offices were accredited as diplomatic staff or

accorded privileges and immunities under the Vienna Convention.

[The officer] said they fell in the category of ‘miscellaneous foreign

government officials’ who were entitled only to relief from paying

U.S. federal income taxes.”

Cable from State Department to United States Embassy in Sofia, April

15, 1981.

20 See Cable from United States Embassy in Sofia to State Depart-

ment, May 29, 1981.

21 The Commission’s draft had set up an objective standard of “rea-

sonable and normal” for a mission’s size. The delegates at Vienna

rejected that standard, and granted the receiving state the right to limit

the size of missions to the number if considered reasonable and

normal. Conference 106-08 (committee records), 13-4 (plenary session

adopting the article). See Kerley, Some Aspects of the Vienna Con-

JSerence on Diplomatic Intercourse and Immunities, 56 Am. J. Int’! L.

88, 98-99 (1962).

3558

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Appendix A—Opinion of U.S. Court of Appeals

permits the receiving state, on a nondiscriminatory basis,

to “refuse to accept officials of a particular category.”

The United States did precisely what Article 11 permits.

It limited the size of the Bulgarian mission by refusing to

accept as members of that mission officials of a certain

category, namely, assistant commerical counselors based

in New York. Furthermore, it did so on a nondiscrimina-

tory basis.

Ill. Conclusion

This court concludes that Kostadinov is not a member

of the Bulgarian mission entitled to immunity from

criminal prosecution. The order dismissing the indictment

is reversed and the indictment reinstated.

An appeal was subsequently filed by the government

from an order of Judge Broderick granting Kostadinov

habeas corpus relief. That order was stayed pending

appeal and the appeal was consolidated with the appeal

on the merits. However, the matter was never briefed nor

argued on the appeal from the dismissal of the indict-

ment. This second appeal is dismissed as moot.

3559

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CORRECTED TRANSCRIPT

Appendix B—Opinion and Order of U.S. District Court

UNITED STATES DISTRICT COURT

SovuTHERN District or New York

(S) 83 Cr. 616 (VLB)

Unitep StatTes oF AMERICA

Vv.

Prenyv Baycnev Kostaprnov,

Defendant.

January 17, 1984

11:00 a.m.

Before:

Hon. Vincent L. Broperick,

District Judge

APPEARANCES

Rvupotew W. Giv iant,

United States Attorney for the

Southern District of New York,

Rutu GuusHien Wepewoop,

Assistant United States Attorney

Ricuarp Scrvaes,

Criminal Division, Department of Justice

Joun Mace,

ELLEN P. CHapnick,

Attorneys for defendant

2la

Appendix B—Opinion and Order of U.S. District Court

The Clerk: United States versus Penyu Kostadinov.

The Court: This is the defendant Mr. Kostadinov’s mo-

tion to dismiss the complaint on the basis of 22 U.S.C.

254(d), which provides as follows:

“Any action or proceeding brought against an individual

who is entitled to immunity with respect to such action or

proceeding under the Vienna Convention on Diplomatic

Relations under Section 254(b) or 254(c) of this title, or

under any other laws extending diplomatic privileges and

immunities, shall be dismissed. Such immunity may be

established upon motion or suggestion by or on behalf of

the individual or as otherwise permitted by law or applic-

able rules of procedure.”

In considering this motion, I will be dealing with the

nature and the status of the Office of the Commercial

Counselor of Bulgaria in New York and the status of Mr.

Kostadinov as assistant commercial counselor in that of-

fice. It is necessary to consider historically the cireum-

stances under which that office was established to determine

its nature and status.

Briefly stated, Mr. Kostadinov’s claim is that the Office

of the Commercial Counselor in New York is part of the

Bulgarian Embassy; that he, Mr. Kostadinov, was a mem-

ber of the technical and administrative staff of that office

and a member of the Bulgarian Mission who has been

sent by Bulgaria and accepted by the United States. Hence,

he claims that he is immune from prosecution.

The government’s position is primarily that the office

is not a part of the Bulgarian Embassy or Mission and

that it is United States policy that no one working in a

trade office in New York of a foreign country has diplo-

matic immunity except for the senior commercial or finan-

cial officer.

The government concedes that the office itself is in-

viclable under the provisions of the Vienna Convention

since the commercial counselor or the senior financial of-

ficer, in this case the commercial counselor, has diplomatic

22a

Appendix B—Opinion and Order of U.S. District Court

immunity, but it claims that Mr. Kostadinov, as assistant

commercial counselor, did not have immunity.

Alternatively, the government argues that if I do find

that the commercial office in New York is a part of the

Bulgarian Embassy, that it is an office of one; that the

commercial counselor is that one and that everyone else

working there is simply an employee of Bulgaria and is

not entitled to any privileges and immunities.

I note preliminarily that the governing law with respect

to immunity is the Vienna Convention on Diplomatic Rela-

tions of April 18, 1961. This was ratified by the United

States and it entered into force with respect to the United

States on December 13, 1972. It has also been ratified by

Bulgaria and is in force with respect to Bulgaria.

Prior to the enactment and the ratification and the effec-

tiveness with respect to the United States of the Vienna

Convention, the suggestion by the government, the State

Department, that Mr. Kostadinov does not have immunity

might have been sufficient to conclude the court. Today

that treaty is involved and the court cannot be so concluded.

The determination of the existence or not of diplomatic

immunity with respect to Mr. Kostadinov is a matter of

treaty interpretation and application of that interpretation

to the facts that have been developed in this case. The

Vienna Convention, in short, is a treaty which is the law

of the land.

I do note that in 1978 the provisions of Title 22 pertain-

ing to immunity that had been in effect since the early

days of the republic were repealed and new provisions

embodied in Sections 254(a), (b), (c) and (d) were enacted.

Those provisions pertain to the applicability of the Vienna

Convention.

I will focus first on the cicrumstances under which the

Commercial Office of Bulgaria in New York was opened.

Diplomatic relations between the United States and Bul-

garia, which had been broken off for some time, were re-

sumed in 1959 and there were negotiations between the

23a

Appendix B—Opinion and Order of U.S. District Court

two countries in the years 1961 through 1963 with respect

to various claims of United States nationals and other

financial matters.

The documentation which has been made available to me

indicates that in the course of those negotiations, Bul-

garia was very interested in achieving most favored nation

status vis-a-vis the United States and that it was also

interested in opening a trade office in New York. The

negotiations culminated in an agreement and the execution

of various documents related to that agreeemnt on July 2,

1963.

I am very sure that the documentation that has been

provided is by no means complete. Many years have passed

since 1963 and we have had the experience in the course of

this case to learn that the documentation has been hard

to come by. I do intend to review this documentation that

has been made available, however, including the documen-

tion in the course of negotiations which led up to the

agreements of July 2, 1963, because in my judgment those

negotiations provide a necessary framework.

On February 9, 1963, the minister of the United States

in Bulgaria reported to the Department of State concern-

ing a conversation which she had with the Prime Minister

of Bulgaria and the Foreign Minister.

I should state that the United States had a legation in

Sofia and the Bulgarian government had a legation in

Washington during the period 1959-1963. It was some

years later, in 1966, that each of those missions was raised

to the status of embassy.

The report from Minister Anderson to the Department

of State covered various matters, including the question

of the financial claims of United States nationals. She

stated that she asked the prime minister with respect to

those claims whether Bulgaria was ready to put forward

a new proposal. The Prime Minister replied that he was

not informed on all the details, but as far as he knew,

an agreement had almost been reached between the two

24a

Appendix B—Opinion and Order of U.S. District Court

governments. He mentioned that there was an amount that

was doubled by the United States before the agreement

was to be concluded and asked whether in light of this

there was any guarantee that if an agreement was reached,

the United States would not again increase the amount

of its claims. Minister Anderson replied to them that if

an agreement were reached which was approved by the

State Department, the agreement would be implemented

and carried out by the United States Government.

There was further discussion with respect to the claims

and other matters and then the prime minister said that

in his view all of the questions could be solved very easily,

but that the real question is “What will follow the settle-

ment of these problems”

Minister Anderson reported that she replied that she

“had several conversations in Washington with, among

others, President Kennedy, the Secretary of State and

other officials in the Department of State and that we

envisage several practical steps which could be taken after

the settlement of the outstanding problems, such as:

“A. The establishment of a Bulgarian Trade Office in

New York.

“B. Raising the status of our missions to embassies here

and in Washington.

“C. A cultural exchange program.”

On April 27, 1963 a telegram was sent from the State

Department to the American legation in Sofia. The tele-

gram discussed various details with respect to the pro-

posed agreements and procedures for exchanging details

of agreements. It stated “Copies Rumanian agreement,

exchanges of notes and pertinent legislation air pouched

April 25.

“Copy of release on trade with Rumania including indi-

eation of U.S. agreement to opening of Rumanian trade

office in New York also heing ponched. While not an in-

tegral part of the Rumanian agreement, this constituted

an associated feature of the general settlement. As Bul-

25a

Appendix B—Opinion and Order cf U.S. District Court

garians know, we would be prepared to issue a correspond-

ing statement for Bulgaria.”

On May 16, 1963, there was a memorandum prepared of

a conversation as the State Department with respect to a

courtesy call by the Bulgarian Minister. According to the

memorandum, the Bulgarian Minister asked whether the

United States was going to send a delegation to Sofia to

negotiate a written financial claims agreement.

Mr. Andrews, who is indicated as being EE, which in-

dicates, I believe, Eastern Europe, stated that work was

not finished on a draft claims agreement and that they were

not yet ready to send a delegation, The memorandum goes

on to say that the minister asked about the prospects for

Bulgaria to obtain most favored nation treatment for its

exports to the United States and states that Mr. Tyler,

the assistant secretary for Europe, said that there would

not be much prospect of that, adding that “the volume of

trade between the United States and Bulgaria was very

small and that we would like to see it increase.”

“Mr, Davis remarked that it was our hope, after the

conelusion of a claims settlement which would open the

way for Bulgaria to establish a trade office in New York

and after issuance of a statement expressing our desire to

facilitate increased trade, that some expansion of trade

could take place even without MFN status for Bulgaria.

It would be false to hold out a promise of any change with

regard to MFN in the near future.”

There was further discussion with respect to trade and

tariffs: “The minister wondered how trade could be de-

veloped under these circumstances. Mr. Davis said that

although he was not familiar with Bulgarian goods or

their marketability in the U.S., we favored an increase in

trade within the existing legal structure. Bulgarian trade

experts would have to explore the U.S. market and con-

elude sales contracts. The establishment of a trade office

in New York and the issuance of a trade statement would

26a

Appendix B—Opinion and Order of U.S. District Court

have the effect of improving the atmosphere which some

expansion of trade could be achieved.”

There is then a memorandum of a conference dated June

1, 1963 at the White House between the President and

others and Minister Popov from Bulgaria. In the course

of this conference, according to the memorandum, “The

minister said they were encouraged by the recent agree-

ment in principle to complete a financial claims settlement

and hoped that with the establishment of a trade office in

New York some progress could be made in developing

U.S.-Bulgarian trade.”

Then there is a memorandum to the Secretary of State

dated June 14, 1963 reqesting authorization to sign with

Bulgaria an intergovernment agreement for the settlement

of claims of American nationals against Bulgaria. The

memorandum discusses the prior history of the problems

with Bulgaria and of the negotiations for the settlement

of the claims, discusses the substance of a proposed draft

agreement for settlement of property and war damage

claims, discusses accompanying notes which it is proposed

be exchanged with the Bulgarian government, including a

note with respect to the resumption of delivery of U.S.

treasury checks to individuals in Bulgaria and a note re-

lating to Bulgaria’s obligation to pay outstanding U.S.

dollar bonded indebtedneess.

It goes on to discuss a draft statement with respect to

trade: “Attached to this memorandum is a draft state-

ment expressing our favorable attitude toward the de-

velopment of peaceful trade with Bulgaria. While this

statement is not to be an integral part of the agreement,

it has served as one of the bargaining levers used in the

negotiations. We propose to issue this statement in the

form of a press release. This has been cleared by the De-

partment of Commerce.

“Recommendation: It is recommended that you author-

ize Minister Euger’e M. Anderson to sign the proposed

agreement and accompanying notes either in their present

27a

Appendix B—Opinion and Order of U.S. District Court

form or, if the Bulgarian government will not agree to

our precise formulations, an agreement and notes which

are similar in all respects. If there is any question of

material departure from these texts, it will be referred

for consideration by EUR and L without referral to you.”

It is my understanding that EUR stands for the As-

sistant Secretary of State for Europe and L stands for

legal counsel.

This memorandum was approved on June 16 by U.

Alexis Johnson, who I believe was the Under Secretary of

State.

On June 19 a telegram was sent by Stefan, who I be-

lieve was a member of the negotiating team then in Bul-

garia, to the Seertary of State. It stated that agreement

had been reached on all articles in the United States draft

text except two and that the Bulgarian delegation had re-

quested the deletion of certain words. It went on to say

that “Bulgarians agreed to eliminate words ‘to improve

also their economic relations’ from preamble on basis that

trade statement would be made.”

On June 20 a telegram went from Stefan in Sofia to the

Secretary of State which stated that agreement had been

reached on the claims agreement proper and went on to

say that, “USDEL presented draft statement on trade.

BULDEL expressed desire for inclusion of MFN reference

although reacting otherwise favorably to certain extent.”

The telegram concluded with the recommendation that:

“If they accept our draft note on Circular 655 and our

trade statement, we accept their last proposal for bond

notes. Appreciate advice re any «jection before meeting

June 24.”

The telegram from the State Department to the delega-

tion in Sofia on June 21 referred to the trade statement in

the following way: “Assume from ref tel you intended

adhere our language trade statement and Circular 655

letter. We consider Bulgarian language 2 ref tel unac-

ceptable.”

28a

Appendix B—Opinion and Order of U.S. District Court

A telegram from Stefan to the State Department on

June 27 stated that the claims negotiation had been con-

cluded and an agreement reached on all remaining issues

in a June 26 meeting. “Bulgarians accepted: (1) our re-

vised language for paragraph 2, sentence 2 of trade state-

ment,” namely: ‘the resumption of diplomatic relations

facilitated the conduct of trade between the two coun-

tries; (2), our drafts for notes on final value of assets

and; (3), bond notes with key fourth paragraph taken from

U.S.-Rumanian exchange.”

The telegram went on to say that: “The two delegations

tentatively agreed on July 2 for signing agreement, for the

U.S. press release and July 3 for Bulgarian press release.”

On July 2 there was a telegram from Minister Anderson

to the Secretary of State stating that she had signed the

claims agreement and accompanying documents at the Bul-

garian Foreign Ministry and that Deputy Foreign Minister

Popov had signed the agreement and documents for the

Bulgarian government. The telegram went on to say:

“Bulgarian television and press covered ceremony. Min-

ister Popov mentioned to me his satisfaction over U.S.

press release.”

On July 2 a message went from the American legation

in Bulgaria to the Minister of Foreign Affairs, which read

as foliows: “The Legation of the United States of America

presents its compliments to the Ministry of Foreign Af-

fairs of the Peoples Republic of Bulgaria and has the

honor to refer to the Agreeemnt signed today between the

Governments of the United States of America and the

People’s Republic of Bulgaria relating to financial ques-

tions and to enclose a statement concerning trade rela-

tions between the United States of America and the Peoples

Republic of Bulgaria, which the Government of the United

States of America is issuing today in the United States.”

The statement itself reads as follows: “The conclusion

of an agreement on financial claims and related issues

between the United States of America and the Peoples

29a

Appendix B—Opinion and Order of U.S. District Court

Republic of Bulgaria removes a significant obstacle to the

establishment of more normal relations between the two

countries, Conditions for the expansion of peaceful trade

have therefore been improved by the signing of this agree-

ment.

“In 1959, after a nine-year hiatus, the United States and

Bulgaria agreed to resume diplomatic relations. The re-

sumption of diplomatic relations facilitated the conduct

of trade between the two countries. It is the view of both

Governments that the expansion of peaceful trade would

be mutually beneficial and would serve to develop increas-

ing ties between the people of the United States and the

Bulgarian people. The United States of America is pre-

pared to authorize the Legation of the Peoples Republic

of Bulgaria to establish in New York a commercial office

which would have the purpose of promoting trade between

our two countries. Both Governients will be prepared to

facilitate the travel of commercial representatives and

officials interested in increasing trade. As conditions per-

mit, both Governments will consider further measures

which will contribute to the development of expanded trade

relations.

“Through such efforts, the Governments of the United

States of America and the Peoples Republic of Bulgaria

welcome the possibility of creating favorable conditions

for the expansion of peaceful trade and the development

of more normal trade relations should also serve as a

means of increasing fruitful Dontacts between the peoples

of the two countries.”

On July 5, Minister Anderson sent to the Department

of State an Airgram with the subject, “Claims Negotia-

tions with Bulgaria.” The text stated that there was

transmitted therewith: “the following documents regard-

ing the claims Agreement signed with Bulgaria on July

2, 1963.” IT am summarizing these documents. One, an

original copy of the claims agreement; two, conformed

copies of notes to the Bulgarian government concerning

30a

Appendix B—Opinion and Order of U.S. District Court

Bulgarian dollar obligations, Treasury Circular 655 and

assets; three, original notes with respect to Bulgarian dol-

lar bond obligations, Treasury Circular 655 and assets;

four, conformed copy of the Legation note to the Ministry

of Foreign Affairs of the People’s Republic of Bulgaria

with respect to the U.S. press release on U.S.-Bulgarian

trade relations.

An internal State Department publication reporting on

the U.S.-Bulgaria claims agreement included the following

on the matter of trade: “Statement on Development of

Trade. While not an integral part of the agreement, we

released on the same day, a statement expressing our

favorable attitude toward the development of peaceful

trade with Bulgaria. This statement, which served as one

of our bargaining levers during the negotiations, notes

that the conclusion of the agreement on financial claims

removes a significant obstacle to the establishment of more

normal relations between the two countries and that con-

ditions fer the expansion of peaceful trade have therefore

been improved. We announced that we are prepared to

authorize the Bulgarian Legation to establish in New York

a commercial office which would have the purpose of pro-

moting trade between the two countries. As conditions

permit, both governments will consider further measures

which will contribute to the development of expanded trade

relations.”

At that stage, following the completion of the negotia-

tions in Bulgaria with respect to the claims agreement, the

Bulgarian Legation was authorized to open a trade office

in New York when it wanted to do so.

There were further conversations with respect to this,

both in Washington and in Bulgaria. Thus, on October

23, 1963, Minister Anderson had a conference with the

Minister of Foreign Trade of Bulgaria. At that confer-

ence she asked whether Bulgaria was now ready to open

the trade office in New York and said that she thought it

would be helpful to discuss and possibly negotiate the

dla

Appendix B—Opinion and Order of U.S. District Court

questions. Minister Budinov said that so far as the New

York office was concerned the problem was solved; that

he had met in New York with Bulgaria’s trade representa-

tive who had already found an appropriate office.

I find that the entire context of the negotiations and the

relationship of the discussion of the trade office in the

context of the claims settlement agreement indicates that

the agreement on the part of the United States to permit

the Bulgarian Legation to open a trade office in New York

was an essential part of the total agreement and that it

constituted a binding agreement under international law,

and that Bulgaria was, therefore, expressly authorized

by the United States to have its Legation open a com-

mercial office in New York.

It has been and it continues to be the position of the gov-

ernment that that trade office when it was opened was not

part of the Bulgarian Legation, later the Bulgarian Km-

bassv.

In the course of this motion, an affidavit has been

submitted by Richard Gookin, the Associate Chief of Pro-

tocol of the Department of State, who has stated, based

on his diseussions with Department of State personnel and

on a review of the official files of the Department of State,

“The Office of the Commercial Counselor of the People’s

Republie of Bulgaria, located at 121 East 62nd Street,

New York, New York has never been granted status by

the Department of State as part of the Embassy of the

People’s Republic of Bulgaria, nor is it considered by the

Department of State to be part of the Embassy.”

The development of documentation in the course of this

motion suggests strongly that a great deal of the docnu-

mentation was not available to Mr. Gookin when he made

that affidavit.

I find, for reasons which I will spell out, that the Com-

mercial Counselor’s office was established as part of the

Bulgarian Legation and that it has continued to the present

time to be a part of the Bulearian Embassy.

32a

Appendix B—Opinion and Order of U.S. District Court

I refer first to the authorization reported at the time

of the claims settlement agreement. It was reported then

that the United States is prepared to authorize the Lega-

tion of the People’s Republic of Bulgaria to establish in

New York a commercial office. The name has been used

in correspondence with and by the State Department; thus

in a letter dated April 25, 1973 from the Office of Protocol

to the Bulgarian Embassy, there is a clear inference that

the State Department considered the New York office to

be a part of the Embassy:

“As you know, it is the policy of the Department of

State to accept for inclusion in the Department’s ‘diplo-

matic list’ only the officer-in-charge of an Embassy, Com-

mercial or Financial Office in New York. ... In view of

the foregoing, I regret that it will not be possible to au-

thorize the issuance of DPL license plates for automobiles

of other personnel of the Commercial Office of the Com-

mercial Office of the Bulgarian Embassy in New York.”

There is a State Department memorandum dated March

27, 1968 which gives an indication of how the New York

office, not only of the Bulgarian Embassy but of other

embassies, was perceived by the State Department. The

memorandum is entitled: “Conditions under which East

European Embassies are Permitted to Maintain Commer-

cial Offices in New York City.”

The memorandum notes the State Department policy that

employees of commercial offices do not have immunity. It

states, however, that: “The premises of the commercial

office, being considered a part of the Embassy, are in-

violable.”

The memorandum also suggests that “persons applying

for visas outside the United States to enter the United

States for assignment to the commercial office of an Em-

bassy should indicate that they will be staff members of

the Embassy assigned to the commercial office.”

The memorandum provides: “The commercial office may

not be utilized as a general diplomatic or consular facility,

33a

Appendix B—Opinion and Order of U.S. District Court

but only for purposes consonant with the status of the

office as part of the Embassy and with the status of the

officer-in-charge as refiected in his diplomatic title.”

Now, the government has made two arguments with re-

spect to this memorandum. The first argument is that it

was never communicated to the Bulgarian Embassy, and

apparently it never was communicated to the Bulgarian

Embassy. The second argument is that this was a pro-

posed modus operandi that was sent around for comments

and that it is not a binding document.

The government also suggested that there are various

people out there who might be able to give information to

the court if the court was interested in having the infor-

mation. These are people to whom this memorandum was

directed who apparently did not comment, at least to the

extent that the cormment is a matter of written record.

There are other indications, however, in the files of the

State Department itself that this memorandum had sub-

stantially more importance than the government suggests.

There is a memorandum of March 27, 1973 from apparently

the United States Mission at the United Nations to the

State Department which refers directly to the 1968 memo-

randum.

That 1968 memorandum was by its terms from the

EUR/EE, which I believe is the Eastern Europe Desk, to

S/CPR, which I believe is the Office of Protocol.

“In accord with EUR/EE’s memorandum to S/CPR of

March 27, 1968, we have authorized the maximum three

DPL plates for the use of the Commercial Counselor of

Bulgaria in N.Y., one for the use of his wife and one in

the name of the office.”

That 1968 memorandum dealt, among other things, with

license plates and presumably had continued validity and

vitality in 1973.

Tn 1969 Bulgarian officials in the United States protested

abont certain incidents in New York and Washington

against Bulgarian officials. This prompted the Secretary

of State to send a telegram on July 14, 1969 to the United

d4a

Appendix B—Opinion and Order of U.S. District Court

States Embassy in Sofia outlining his response to the in-

cidents. In that telegram he made reference to the diplo-

matic status of the commercial office, and he added that,

“U.S. accepts obligation to provide normal protection to

diplomatic missions and their representatives located in

this country.”

He concluded the telegram: “You can assure Bulgarians

that police continuing efforts to apprehend perpetrators

of acts against property of Bulgarian government and per-

sonnel. New York police wili be reminded of diplomatic

status of Bulgarian and other East European diplomatic

commercial offices located there.”

In the Blue List, which is the diplomatic list published

by the Department of State, the New York commercial

office is listed under the listing for the Bulgarian Embassy.

The record before me indicates that the Bulgarian rep-

resentatives in this country have maintained consistently

that the premises of the New York office are inviolable

since the office is, in their contemplation, a part of the

Bulgarian Embassy in Washington.

At a meeting on Juiy 1, 1969 with the American Am-

bassador to Bulgaria in Sofia they discussed this matter,

and it is memorialized in a State Department memorandum

of conversation:

“Mr. Ivanov recounted in detail the facts as known to

the Ministry regarding the breaking and entering of the

office of the Bulgarian Trade Mission in New York. He

said the Bulgarian Government was most concerned over

the gross violation of the inviolability of the Bulgarian

Trade Mission office as ‘an office of the Bulgarian Embassy.’

He said that on June 28 the Commercial Counselor (Ish-

pekov) found the office turned upside down with a note

left by the cleaning woman that she had so found it on

June 27 and had ealled the New York City Police. Ish-

pekov reported that desks and safes had heen broken open

and files scattered around. He reported also that upon

their arrival (after the cleaning woman’s call) the police

entered the premises of the Bulgarian Trade Mission with-

30a

Appendix B—Opinion and Order of U.S. District Court

out seeking permission from Mr. Ishpekov or other Bul-

garian diplomatic representative—this despite the fact

that there is a sign outside the office reading ‘Embassy of

the Peoples Republic of Bulgaria Commercial Office.’ ”

I should also add to this that when Mr. Kostadinov was

originally named by Bulgaria to be Assistant Commercial

Counselor, the application was in terms of being an As-

sistant Commercial Counselor of the Bulgarian Embassy.

In find that both the Department of State and the Re-

public of Bulgaria have regarded the commercial office in

New York, consistently with the understanding that was

reached in connection with the claims settlements on July

2, 1963, to be a part of the Embassy of the Republic of

Bulgaria.

We will take a five minute recess.

(Recess)

The New York Commercial Office was established at a

time when the Vienna Convention was not in effect. I

do not have before me the question of Mr. Kostadinov’s

status as an assistant commercial counselor in the New

York office at any time prior to the time that the Vienna

Convention came into effect.

It is probable that this court would have been concluded

by the suggestion that Mr. Kostadinov had no immunity

if that suggestion had been made prior to the time that

the Vienna Convention was enacted. There is certainly no

question on the record before me but that it has been the

consistent position of the Department of State, from 1963

to the present time, that no employees in the commercial

office, other than the Commercial Counselor himself, have

diplomatic status.

I also note, however, that none of the discussions with

respect to diplomatic status took place prior to the time,

to wit, July 2, 1963, that the authorization for the opening

of that commercial office as a part of the Bulearian lega-

tion was announced.

36a

Appendix B—Opinion and Order of U.S. District Court

It will be appropriate at this time, therefore, for me

to consider the Vienna Convention, because I shall be later

considering the impact of that convention on the facts

before me. So I will briefly summarize what I regard as

the provisions of the Vienna Convention which are ger-

mane to decision in this case.

Article 1 defines “members of the mission” as the “head

of the mission and the members of the staff of the mission.”

I have used the term define. Perhaps identify is a bet-

ter word. There is very little in the way of definition.

Article 1(f) provides that: “ ‘the members of the admin-

istrative and technical staff’ are the members of the staff

of the mission employed in the administrative and tech-

nical service of the mission.”

Article 1(i) says in substance that the “premises of the

mission” are the buildings used for the purpose of the

mission.

Article 7 pertains to the appointment of members of

the staff of the mission. It states that, “Subject to the

provisions of Articles 5, 8, 9 and 11, the sending State

may freely appoint the members of the staff of the mis-

sion... .”

Articles 5 and 8 referred to in Article 7 have no rele-

vance to this case.

Article 9 provides: “1. The receiving State may at any

time, and without having to explain its decision, notify

the sending State that the head of the mission or any

member of of the diplomatic staff of the mission is per-

sona non grata or that any other member of the staff of

the mission is not acceptable. In any such case, the send-

ing State shall, as appropriate, either recall the person

concerned or terminate his functions with the mission. A

person may be declared non grata or not acceptable before

arriving in the territory of the receiving State.”

Article 11, also referred to in Article 7, provides that:

“1. In the absence of specific agreement as to the size

of the mission, the receiving Staie may require that the

37a

Appendix B—Opinion and Order of U.S. District Court

size of a mission be kept within limits considered by it to

be reasonable and normal, having regard to circumstances

and conditions in the receiving state and to the needs of

the particular mission. 2. The receiving state may equally,

within similar bounds and on a nondiscriminatory basis,

refuse to accept officials of a particular category.”

Article 10 provides in relevant part: “1. The Minister

for Foreign Affairs of the receiving state shall be notified

of: (a) the appointment of members of the mission, their

arrival and their final departure or the termination of

their functions with the mission.” It ends: “2. Where pos-

sible, prior notification of arrival and final departure shall

also be given.”

Article 12 provides that: “The sending State may not

without the prior express consent of the receiving State,

establish offices forming part of the mission in localities

other than those in which the mission itself is established.”

Article 22 provides in relevant part, “The premises of

the mission shall be inviolable.”

Article 24 makes that applicable to the archives and

documents of the mission.

Article 37, paragraph 2, provides, in relevant part, that

“Members of the administrative and technical staff of the

mission . .. Shall enjoy the privileges and immunities

specified in Articles 29 to 35,” with certain exceptions.

Article 29 provides: “The person of a diplomatic agent

shall be inviolable. He shall not be liable to any form of

arrest or detention.”

Article 31 provides in relevant part “A diplomatic agent

shall enjoy immunity from the criminal jurisdiction of

the receiving State.”

Those provisions that the person of a diplomatic agent

shall be inviolable in Article 29 and that a diplomatic agent

shall enjoy immunity from the criminal jurisdiction of the

receiving state in Article 31 are made applicable to a mem-

her of the administrative and technical staff of the mission

by reason of Article 37.

38a

Appendix B—Opinion and Order of U.S. District Court

Article 32 provides, “1. The immunity from jurisdiction

of diplomatic agents and of persons enjoying immunity

under Article 37 may be waived by the sending State. 2.

Waiver must always be express.”

Article 39 provides in paragraph 1 that: “Every per-

son entitled to privileges and immunities shall enjoy them

from the moment he enters the territory of the receiving

State on proceeding to take up his post, or if already in

its territory, from the moment when his appointment is

notified to the Ministry for Foreign Affairs or such other

ministry as may be agreed.”

Article 47 provides, “1. In the application of the pro-

visions of the present Convention, the receiving state shall

not discriminate as between states. 2. However, discrim-

ination shall not be regarded as taking place: (a) where

the reeeiving State applies any of the provisions of the

present Convention restrictively because of a restrictive

application of that provision to its mission in the sending

State; (b) where by custom or agreement States extend

to each other more favorable treatment than is required

by the provisions of the present Convention.”

The government has argued that even if, as I have found,

the New York Commercial Counselor’s office is part of the

Bulgarian Embassy, it must be viewed as a mission of

one. That is, only the head of the office, the chief com-

mercial counselor, may be considered a member of the

mission and thus entitled to the privileges and immunities

provided in the Vienna Convention. It is the government’s

position that the United States has the right to restrict

the New York office in this fashion, relying principally on

Article 11 of the Vienna Convention.

Article 11 provides that: “In the absence of specific

agreement as to size, the size of the mission, the receiv-

ing State may require that the size of the mission be kept

within limits considered bv it to he reasonable and normal,

having regard to circumstances and conditions in the re-

ceiving State and to the needs of the particular mission.”

It also provides that “The receiving State may equally,

39a

Appendix B—Opinion and Order of U.S. District Court

within similar bounds and on a nondiscriminatory basis,

refuse to accept officials of a particular category.”

The government’s position is that it has exercised its

prerogative under Article 11 to limit the size of the New

York office by, (1) issuing circulars in 1974 and 1977 which

require that staff members of a mission reside in Wash-

ington, D.C. and, (2) by informing Bulgarian officials in

Washington and in Sofia that only the head of the New

York office was entitled to diplomatic immunity and that

the subordinate staff members were not so entitled.

In 1974 and again in 1977 the State Department sent

cicular notes to all chiefs of mission in Washington, in-

cluding that of Bulgaria. The 1977 note restated, among

other things, the State Department’s 1974 pronouncement

that the staff of a diplomatic mission must reside in the

Washington, D.C. area.

“In order that the policy of accreditation may be uni-

formly a matter of record for all missions, the criteria is

set forth in detail as follows: Each diplomatic officer must

(1) possess a valid diplomatic passport, if diplomatic pass-

ports are issued by his government, or, in the alternative,

this mission should by diplomatic note explain its ab-

sence in particular cases if the government does issue

diplomatic passports; (2) possess a recognized diplomatic

title; (3) be a holder of an A-1 nonimmigrant visa; (4)

with the exception of the designated senior financial eco-

nomie and commercial positions in New York City, reside

in the Washington, D.C. area; and devote official activities

to diplomatic duties on an essentially full-time basis.”

That note concludes, “The Chiefs of Mission rre also

reminded that the following criteria apply respecting ac-

ceptance of individuals as members of the nondiplomatic

staffs entitled to certain privileges, exemptions and im-

munities. They must (1) possess A-2 or A-3 visas; (2)

be performing full-time duties with the diplomatic mission,

and (3) reside in the Washington, D.C. area.”

The evidence before me indicates that the materials con-

tained in the 1974 note and the 1977 note did not come as

40a

Appendiz B—Opinion and Order of U.S. District Court

any surprise to either Bulgarian officials or officials of any

other embassy. The testimony before me in the course

of this hearing indicates very clearly that as early as 1963,

the Bulgarian Minister in Washington was notified of

these restrictions and there have been apparently con-

sistent restrictions imposed by the State Department since

at least that time.

As recently as 1981 there were specific exchanges on

this subject between the Department of State and the

Bulgarian authorities. A Department of State telegram

to the American Embassy in Sofia dated January 31, 1981

discusses the status of the staff of the Bulgarian office in

New York. The relevant portion of that telegram reads:

“1, In the course of sorting out the documentation of

Mirolyub Vutov assigned to the Bulgarian Trade Office

in New York, the Department had occasion to review with

the Bulgarian Embassy the existing procedures regard-

ing trade office personnel. Those procedures are set out

below for the information and guidance of the Embassy.”

“2. The head of the trade office will be entitled to diplo-

matic status and will be assigned formally as Commercial

Counselor at the Bulgarian Embassy in Washington. He

will be issued an A-1 visa, notified to the department’s Of-

fice of Protocol, and will receive ful! diplomatic accredi-

tation and full diplomatic privileges and immunities.

“3, Other personnel assigned to the trade office, who are

employees of the Bulgarian Ministry of Foreign Affairs

or Ministry of Foreign Trade, will be issued A-2 visas.

They will be notified to the Office of Protocol, but will not

be accerdited or issued diplomatic identity or tax cards.

They will have no diplomatic privileges or immunities.”

A meeting in Washington on April 10, 1981 involved

conversations with respect to this matter with Bulgarian

officials, and those conversations are memorialized in a

State Department memorandum: “Shamwell said that Bul-

garian officials assigned to the United States receive “A”

visas, but that the Visa itself did not confer diplomatic

4la

Appendix B—Opinion and Order of U.S. District Court

status or immunity. As a matter of policy, diplomatic mis-

sions were required to be located in the District of Colum-

bia, he said, to prevent a proliferation of offices and per-

sons with diplomatic status around the country. Shamwell

said a number of countries, including Bulgaria, had been

permitted to have one officer from the Embassy with diplo-

matic status resident in New York on an exceptional basis

because of that city’s commercial significance. None of

the other personnel assigned to New York by Bulgaria or

by other countries with similar offices were accredited as

diplomatic staff or accorded privileges and immunities un-

der the Vienna Convention. He said they fell in the cate-

gory of ‘miscellaneous foreign government officials’ and

were entitled only to relief from paying U.S. federal in-

come taxes,

Dragov stated that the Bulgarian officials assigned to

New York operated under the direction of the Bulgarian

Ambassador. Under the relevant U.S. laws, diplomatic

agents were entitled to full immunity and members of the

technical and administrative staff were entitled to full

criminal immunity as well as civil immunity for acts un-

dertaken in the conduct of their official duties. Shamwell

pointed out that these immunities applied only to accredited

members of the Embassy staff and that the Bulgarian per-

sonnel in New York, other than Toromonov,” and I inter-

ject here that Toromonov at that time was the Commercial

Counselor, “were neither diplomatic agents nor technical

and administrative staff or service staff. He said that

persons who were accredited received official identity docu-

ments from the department and were included in the de-

partment’s blue or white lists of diplomatic personnel.

An on-the-spot examination of copies of those lists veri-

fied that Toromonov was the only Bulgarian official in

New York so listed. Toromonov acknowledged that the

sitnation was as described by Shamwell. but Dragov said

that we would have to diseuss the matter with his Am-

bassador before commenting further.”

42a

Appendix B—Opinion and Order of U.S. District Court

The record shows that State Department officials had

at least four additional meetings from late April through

June 1981 with Bulgarian officials on the subject of priv-

leges and immunities, and that the department’s policy

toward the New York office was expressed at these meetings.

A telegram of June 6, 1981 from the Secretary of State

to the United States Embassy in Sofia indicates how firmly

entrenched this policy was:

“The explanation of the U.S. position on personnel ceil-

ings provided by chargé (paragraph 4 of REFTEL) was

exactly on track. In response to the question raised by

Pchelintsev, the embassy should inform the MFA”—the

Ministry of Foreign Affairs—“that we do not wish to play

numbers games with the staffs of our embassies in Sofia

and Washington. We will continue to accredit as mem-

bers of the Bulgarian Embassy in Washington only those

persons resident in Washington and the Embassy Com-

mercial Counselor who is resident in New York. We will

take into general account the total number of Bulgarian

government officials assigned to the United States and

Washington and in other cities in considering the appro-

priateness of the level of staffing. We do not intend, how-

ever, to include nondiplomatic personnel in New York in

any listing of persons accredited to the U.S.”

The issue that is drawn, therefore, is whether the De-

partment of State, which acts for the President, may with-

hold privileges and immunities from staff personnel work-

ing in the Office of the Commercial Counselor of the

Bulgarian Embassy in New York under the Vienna Con-

vention.

Under Article 11 of the Vienna Convention, a receiv-

ing state, in this case the United States, has discretion

over the size of the mission, over the numbers of persons

at the mission. There is nothing in the Vienna Conven-

tion, however, that gives the receiving state control over

the question of privileges and immunities. The Vienna

Convention in this particular departs from history. It

makes it very clear that a receiving state may limit size.

+ ARVN LOT POA ORR Ce IS Ye Se ae a) Ot et A pt Fhe

43a

Appendix B—Opinion and Order of U.S. District Court

It gives no authority to a receiving state to withhold

privileges.

It would seem to me in fact, given the structure of the

Vienna Convention, that if the receiving state could limit

privileges and immunities, logie would go out of the pro-

visions of the Vienna Convention itself. The very struc-

ture of the convention is to spell out the consequences of

status. If a person is a technical or administrative mem-

ber of a mission, he is under the Vienna Convention en-

titled to certain privileges and immunities, and one of

those privileges is immunity from criminal prosecution.

The action tatken by the Department of State goes di-

rectly to privileges and immunities. Mr. Kostadinov ap-

plied for a visa on the basis that he was going to be an

assistant commercial counselor of the Bulgarian Embassy,

replacing another person who had held that same position

of assistant commercial counselor in New York. He was

permitted to come into this country. He was notified to

the State Department. He was permitted to work in the

commercial counselor’s office in New York, and I have found

already that that office was a part of the Bulgarian Em-

bassy.

This record indicates that the Department of State has

made no effort to limit the numbers of persons working

in the Office of the Commercial Counselor in New York.

I am sure that that does not mean that no such efforts

have been made, but certainly there are no such efforts

which are part of the record before me, and the Depart-

ment of State has been notified not only with respect to

Mr. Kos‘adinov, but with respect to everyone else who is

working in that office. It has always had the option to

declare him not acceptable, and if he were declared not

acceptable, Bulgaria would be required under the Vienna

Convention to recall or to terminate his functions. The

Department of State has not done that and presumably

as a matter of practice has never done that in the past

because it has relied on what it regarded as its power

prior to the application of the Vienna Convention to with-

44a

Appendix B—Opinion and Order of U.S. District Court

hold diplomatic privilege. Now after the application of

the Vienna Convention it believes it has the same power

to withhold diplomatic privilege.

We have here a commercial office, part of the Bulgarian

Embassy, which was in place and operating and had a

staff as of the time the Vienna Convention became effec-

tive. Presumably in that period before the Vienna Con-

vention became effective it was entirely appropriate for

the State Department, with respect to the Bulgarian office

in New York or any similar office, to withhold diplomatic

privileges and immunities. Its authority to do it once the

Vienna Convention was adopted must be found in the

Vienna Convention or in 22 U.S.C. 254, which is intented

effectively to implement the Vienna Convention.

The consistency of the State Department policy with

respect to employees of officers of missions, such as the

Commercial Counselor’s Office of the Bulgarian Embassy,

has been established beyond peradventure. It has been a

longstanding policy, and so far as everything before me

is concerned, it has been applied uniformly. It has been

articulated and I have reviewed a great deal of this articu-

lation in circular notes and in conferences with Bulgarian

officials.

But that policy, no matter how consistently articulated

or how long it had been held, must be evaluated in light

of the international commitments which bind the United

States. It cannot operate to contradict the language of the

Vienna Convention, which is a multilateral treaty to which

the United States has pledged its support. That conven-

tion sets forth very clearly the privileges and immunities

to which a technical or administrative employee of an

embassy is entitled.

Having adhered to the Vienna Convention and consented

to the provisions of the Vienna Convention, the United

States is bound to re spect the privileges and immunities

which that Convention provides, and those privileges apply

in equal force with respect to the Bulgarian Embassy in

45a

Appendix B—Opinion and Order of U.S. District Court

Washington and to the Office of the Commercial Counselor

in New York, which is a branch of that embassy.

Because of Article 12 of the convention, the United States

need never have been concerned about immunity with re-

spect to any foreign trade office in New York. That sec-

tion provides that, “The sending state may not, without

the prior express consent of the receiving state, establish

offices forming part of the mission in localities other than

those in which the mission itself is established.” But the

United States did consent to the establishment of the of-

fice in New York as a part of the Bulgarian legation, now

the Bulgarian Embassy.

Having given that consent, the United States, by signing

the Vienna Convention and adhering to it, committed it-

self to providing the staff of the embassy in the New York

office with the privileges that are spelled out in the Con-

vention.

If when the Convention had been signed the United

States had wanted a residency requirement for staff mem-

bers of a mission, it presumably could have either sought

the insertion of such a provision in the Convention or it

could have taken a reservation or an exception on that

matter. So far as any evidence before me is concerned,

it did not.

If, therefore, Mr. Kostadinov is functioning as Assistant

Commercial Counselor of the Bulgarian Embassy in New

York and he has been properly noticed to the United

States, he is entitled to the immunities which are set

forth in the Vienna Convention. Specifically, under Ar-

ticles 37 and 31 he is entitled to immunity from criminal

jurisdiction.

I now address the question of whether he has properly

become a staff member of the Bulgarian Mission. Again

I turn to the Vienna Convention.

Article 7 prevides that subject to various other provi-

sions, “the sendine state may freely appoint the members

of the staff of the mission.” One of those subject Articles

is Article 9, which provides that the receiving state may

46a

Appendix B—Opinion and Order of U.S. District Court

notify the sending state that any member of the staff of

a mission is not acceptable.

Article 10 requires that a receiving state be notified of

the appointment of members of the mission. This duty

of notification may very well be a new duty imposed by

the Vienna Convention and on such notification the re-

ceiving state, here the United States, could declare that

the member appointed by the sending state was unac-

ceptable.

Now, the receiving state can act either before or after

the staff member has arrived. Article 9 provides that the

receiving state may at any time, and without having to

explain its decision, notify the sending state that any

member of the staff of the mission is not acceptable. So

what the Vienna Convention spells out its notification by

the sending state and refusal by the receiving state.

Mr. Kostadinov relies on notice to the United States

Embassy in Sofia that he was appointed an employee in

the commercial service of the Embassy of the Peoples

Republie of Bulgaria, that was on May 5, 1979, and a visa

was issued on May 23, 1979, and he assumed his duties

in New York on July 3, 1979.

Between then and now several visas have been issued

with respect to Mr. Kostadinov. On his application for

those visas, his position has been described as assistant

to the commercial counselor or as assistant commercial

counselor in New York City. In a form DA 394, which

was filed on behalf of Mr. Kostadinov on November 19,

1980, he was described as assistant commercial counselor

of the Bulgarian Embassy’s commercial counselor’s office

and a New York address was given. It is my recollection

that there were two succeeding registrations filed on DA

394.

The Vienna Convention does not provide any form of

notification or of accreditation and it is certainly abun-

dantly clear from the record before me that the Depart-

ment of State knew precisely where Mr. Kostadinov would

be working and in what capacity.

Na mR

PT ERR HIS ela HE Ue

Ren ea

4ia

Appendix B—Opinion and Order of U.S. District Court

The United States delegation to the Vienna Convention

considered the question of formality or lack of formality

with respect to notification procedure:

“All that should be necessary in the case of a member

of the staff of the mission is his notification by the send-

ing state to the two receiving states (where there are two

receiving states) and their express or tacit acceptance of

him. A person can be ‘accredited’ in many ways. A note

from the head of mission regarding a newly arrived mem-

ber of his staff should be quite sufficient to assure the

receiving state that he does in fact speak for his govern-

ment. Unless the receiving state objects to the appoint-

ment, he will thereby have been ‘accredited’ in the diction-

ary meaning of the term.”

The evidence presented before me shows that Mr. Kos-

tadinov complied with notification requirements, nor did

the United States specifically object in the ways prescribed

in the convention. It never declared him unacceptable. It

never declared him persona non grata, although that would

not be applicable because apparently that applies only to

persons with diplomatic rather than nondiplomatie status.

It never expressed any objection to Mr. Kostadinov or to

him serving in the position of assistant commercial coun-

selor.

It argues that its policy, set forth in the notes I have

already discussed, and the fact that he never appeared on

a white list that is published by the State Department was

notice to the Bulgarian Embassy, and to Mr. Kostadinov,

that he was not accepted as part of the embassy staff.

The problem about that argument is that it was notice

of no such thing. It was notice that while Mr. Kostadinov

was being accepted and was not being rejected as an em-

plovee of the commercial counselor’s office, that he would

not be accorded diplomatic privileges and immunities. At

this stage, the State Denartment was arrogzating to itself

on a continuing basis powers that it undoubtedly had prior

48a

Appendix B—Opinion and Order of U.S. District Court

to the adherence to the Vienna Convention, but which it

has no longer.

Mr. Kostadinov’s title of Assistant Commercial Counse-

lor makes him a member of the administrative and technical

staff of the Bulgarian Embassy within the meaning of the

Vienna Convention and the Diplomatic Relations Act, 22

U.S.C. 254(a), which adopts the descriptions of the Vienna

Convention.

Article 1 of the Vienna Conventicn refines members of

the administrative and technical staff as members of the

mission.

The Vienna Convention provided only three categories

for members of a mission: Diplomatic members, technical

and administrative members and service members. The

approach of the Department of State is to provide a fourth

category not authorized by the Vienna Convention, and not

authorized by 22 U.S.C, 254, that is, members of the tech-

nical and administrative staff who are not entitled to priv-

ileges and immunities.

I find, therefore, that Mr. Kostadinov is a member of the

technical and administrative staff of the Bulgarian Em-

bassy in his capacity as assistant commercial counselor.

I find further that the Department of State was properly

notified of his designation.

I find further that the Department of State, having been

notified and having accepted Mr. Kostadinov in the sense

that he was assigned to the New York office after notice

to the Department of State and without objection by the

Department of State, the Department of State had no au-

hority and no power under the Vienna Convention to deny

him the privileges which the Vienna Convention accords

him.

I find that he was not rejected by the Department of

State. He was therefore accepted by the Department of

State.

In arriving at this decision, I have given consideration

to the provisions of 22 U.S.C. 254(c). It provides: “The

49a

Appendix B—Opinion and Order of U.S. District Court

President may, on the basis of reciprocity and under such

terms and conditions as he may determine, specify priv-

ileges and immunities for the members of the mission,

their families and the diplomatic couriers which result in

more favorable treatment or less favorable treatment than

is provided under the Vienna Convention.”

I note first that Article 47 of the Vienna Convention au-

thorizes more favorable treatment, but not less favorable

treatment.

I note further that any action taken under 254(c) by

the President must be on the basis of reciprocity. There

is no evidence in this case that the attempt to deny priv-

ileges and immunities to Mr. Kostadinov was on the basis

of reciprocity. Indeed, it was a general policy which was

made applicable to all. I find, therefore, that Section 254(c)

has no application.

I find that under the Vienna Convention, Mr. Kostadinov

is immune from the criminal jurisdiction of the United

States and IT e¢rant the motion.

50a

Appendix B—Opinion and Order of U.S. District Court

UNITED STATES DISTRICT COURT

SoutHErRN District or New York

83 Crim. 616 (VLB)

Unirep Sratres or AMERICA,

—against—

Prenyv Baycuev Kostapinov, a/k/a “Penyo B. Kostadinov”,

a/k/a “Peru B. Kostadinov”,

Defendant.

ORDER

Vincent L. Bropericx, U.S.D.J.

Defendant moved to dismiss the indictment pursuant to

22 U.S.C. §254d and Rule 12, Fed.R.Crim.P.

For reasons set forth on the record, the motion is

eranted.

This order will not become effective until appeal has

been had.

So ORDERED.

/s/ Vincent L. Bropericr,

U.S.D.J.

Dated: New York, New York

January 17, 1984

Copies Mailed to Counsel of Record

5la

APPENDIX C

Vienna Convention on Diplomatic Relations

UNITED NATIONS CONFERENCE ON

DIPLOMATIC INTERCOURSE AND IMMUNITIES

VIENNA CONVENTION

DIPLOMATIC RELATIONS

[Unirep Nations SEAu]

United Nations

1961

VIENNA CONVENTION ON DIPLOMATIC

RELATIONS

o OS 5. eer Ge

The State Parties to the present Convention,

Recalling that peoples of all nations from ancient times

have recognized the status of diplomatic agents,

Having in mind the purposes and principles of the Char-

ter of the United Nations’ concerning the sovereign equality

of States, the maintenance of international peace and

| security, the promotion of friendly relations among na-

tions,

1TS 993; 59 Stat. 1031.

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Appendix C

Vienna Convention on Diplomatic Relations

Believing that an international convention on diplo-

matic intercourse, privileges and immunities would con-

tribute to the development of friendly relations among

nations, irrespective of their differing constitutional and

social systems,

Realizing that the purpose of such privileges and im-

munities is not to benefit individuals but to ensure the

efficient performance of the functions of diplomatic mis-

sions as representing States,

Affirming that the rules of customary international law

should continue to govern questions not expressly regu-

lated by the provisions of the present Convention,

Have agreed as follows:

Article 1

For the purpose of the present Convention, the follow-

ing expressions shall have the meanings hereunder as-

signed to them:

(a) the “head of the mission” is the person

charged by the sending State with the duty of act-

ing in that capacity;

(b) the “members of the mission” are the head of

the mission and the members of the staff of the

mission ;

the members of the diplomatic staff, of the adminis-

trative and technical staff and of the service staff

of the mission;

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Vienna Convention on Diplomatic Relations

(d) the “members of the diplomatic staff” are the

members of the stafi of the mission having diplo-

matic rank;

(e) a “diplomatic agent” is the head of the mis-

sion or a member of the diplomatic staff of the

mission ;

(f) the “members of the administrative and tech-

nical staff” are the members of the staff of the

mission employed in the administrative and techni-

cal service of the mission;

(g) the “members of the service staff” are the

members of the staff of the mission in the domestic

service of the mission;

(h) a “private servant” is a person who is in the

domestic service of a members of the mission and

who is not an employee of the sending State;

(i) the “premises of the mission” are the build-

ings or parts of buildings and the land ancillary

thereto, irrespective of ownership, used for the

purposes of the mission including the residence of

the head of the mission.

Article 2

The establishment of diplomatic relations between

States, and of permanent diplomatic missions, takes place

by mutucl consent.

Article 3

1.The functions of a diplomatic mission consist inter

alia in:

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Vienna Convention on Diplomatic Relations

(a) representing the sending State in the receiv-

ing State;

(b) protecting in the receiving State the inter-

ests of the sending State and of its nationals, within

the limits permitted by international law;

ceiving State;

(d) ascertaining by all lawful means conditions

and developments in the receiving State, and re-

porting thereon to the Government of the sending

State;

(e) promoting friendly relations between the send-

ing State and the receiving State, and developing

their economic, cultural and scientific relations.

2. Nothing in the present Convention shall be construed

as preventing the performance of consular functiens by

a diplomatic mission.

Article 4

1. The sending State must make certain that the agré-

ment of the receiving State has been given for the person

it proposes to accredit as head of the mission to that

State.

2. The receiving State is not obliged to give reasons to

the sending State for a refusal of agrément.

Article 5

1. The sending State may, after it has given due notifi-

cation to the receiving State concerned, accredit a head of

50a

Appendiz C

Vienna Convention on Diplomatic Relations

mission or assign any member of the diplomatic staff, as

the case may be, to more than one State, unless there is

express objection by any of the reeeiving States.

2. If the sending State accredits a head of mission to

one or more other States it may establish a diplomatic

mission headed by a chargé d’affaires ad interim in each

State where the head of mission has not his permanent

seat,

3. A head of mission or any member of the diplomatic

staff of the mission may act as representative of the send-

ing State to any international organization.

Article 6

Two or more States may accredit the same person as

head of mission to another State, unless objection is of-

fered by the receiving State.

Article 7

Subject to the provisions of Articles 5, 8, 9 and 11, the

sending State may freely appoint the members of the staff

of the mission. In the case of military, naval or air at-

tachés, the receiving State may require their names to be

submitted beforehand, for its approval.

Article 8

1. Members of the diplomatic staff of the mission should

in principle be of the nationality of the sending State.

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Appendix C

Vienna Convention on Diplomatic Relations

2. Members of the diplomatic staff of the mission may

not be appointed from among persons having the nation-

ality of the receiving State, except with the consent of that

State which may be withdrawn at any time.

3. The receiving State may reserve the same right with

regard to nationals of a third State who are not also na-

tionals of the sending State.

Article 9

1. The receiving State may at any time and without

having to explain its decision, notify the sending State

that the head of the mission or any member of the diplo-

matic staff of the mission is persona non grata or that

any other member of the staff of the mission is not ac-

ceptable. In any such case, the sending State shall, as

appropriate, either recall the person concerned or termi-

nate his functions with the mission. A person may be

declared non grata or not acceptable before arriving in

the territory of the receiving State.

2. If the sending State refuses or fails within a rea-

sonable period to carry out its obligations under para-

graph 1 of this Article, the receiving State may refuse

to recognize the person concerned as a member of the

mission.

Article 10

1. The Ministry for Foreign Affairs of the receiving

State, or such other ministry as may be agreed, shall be

notified of :

57a

Appendiz C

Vienna Convention on Diplomatic Relations

(a) the appointment of members of the mission,

their arrival and their final departure or the termi-

nation of their functions with the mission;

(b) the arrival and final departure of a person

belonging to the family of a member of the mission

and, where appropriate, the fact that a person

becomes or ceases to be a member of the family of

a member of the mission;

servants in the employ of persons referred to in

sub-paragraph (a) of this paragraph and, where

appropriate, the fact that they are leaving the

employ of such persons;

(d) the engagement and discharge of persons resi-

dent in the receiving State as members of the mis-

sion or private servants entitled to privileges and

immunities.

2. Where possible, prior notification of arrival and final

departure shall also be given.

Article 11

1. In the absence of specific agreement as to the size of

the mission, the receiving State may require that the size

of a mission be kept within limits considered by it to be

reasonable and normal, having regard to circumstances

and conditions in the receiving State and to the needs of

the particular mission.

2. The receiving State may equally, within similar

bounds and on a non-discriminatory basis, refuse to accept

officials of a particular category.

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Appendix C

Vienna Convention on Dipiomatic Relations

Article 12

The sending State may not, without the prior express

consent of the receiving State, establish offices forming

part of the mission in localities other than those in which

the mission itself is established.

Article 13

1. The head of the mission is considered as having taken

up his functions in the receiving State either when he has

presented his credentials or when he has notified his

arrival and a true copy of his credentials has been pre-

sented to the Ministry for Foreign Affairs of the receiving

State, or such other ministry as may be agreed, in accord-

ance with the practice prevailing in the receiving State

which shall be applied in a uniform manner.

2. The order of presentation of credentials or of a true

copy thereof will be determined by the date and time of

the arrival of the head of the mission.

Article 14

1. Heads of mission are divided into three classes,

namely :

(a) that of ambassadors or nuncios accredited

to Heads of State, and other heads of mission of

equivalent rank;

(b) that of envoys, ministers and internuncios

accredited to Heads of State;

sters for Foreign Affairs.

2 eee ie eo tr en Ite

59a

Appendix C

Vienna Convention on Diplomatic Relations

2. Except as concerns precedence and etiquette, there

shall be no differentiation between heads of mission by

reason of their class.

Article 15

The class to which the heads of their missions are to

be assigned shall be agreed between States.

Article 16

1. Heads of mission shall take precedence in their re-

spective classes in the order of the date and time of tak-

ing up their functions in accordance with Article 13.

2. Alterations in the credentials of a head of mission

not involving any change of class shall not affect his pre-

cedence.

3. This article is without prejudice to any practice ac-

cepted by the receiving State regarding the precedence

of the representative of the Holy See.

Article 17

The precedence of the members of the diplomatic staff

of the mission shall be notified by the head of the mission

to the Ministry for Foreign Affairs or such other ministry

as may be agreed.

Article 18

The procedure to be observed in each State for the re-

ception of heads of mission shall be uniform in respect of

each class.

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Appendix C

Vienna Convention on Diplomatic Relations

Article 19

1. If the post of head of the mission is vacant, or if the

head of the mission is unable to perform his functions, a

chargé d’affaires ad interim shall act provisionally as

head of the mission. The name of the chargé d’affaires ad

interim shall be notified, either by the head of the mis-

sion or, in case he is unable to do so, by the Ministry for

Foreign Affairs of the sending State to the Ministry for

Foreign Affairs of the receiving State or such other

ministry as may be agreed.

2. In cases where no member of the diplomatic staff of

the mission is present in the receiving State, a member of

the administrative and technical staff may, with the con-

sent of the receiving State, be designated by the sending

State to be in charge of the current administrative affairs

of the mission.

Article 20

The mission and its head shall have the right to use the

flag and emblem of the sending State on the premises of

the mission, including the residence of the head of the

mission, and on his means of transport.

Article 21

1. The receiving State shall either facilitate the acqui-

sition on its territory, in accordance with its laws, by

the sending State of premises necessary for its mission

or assist the latter in obtaining accommodations in some

other way.

2. It shall also, where necessary, assist missions in

obtaining suitable accommodation for their members.

6la

Appendix C -

Vienna Convention on Diplomatic Relations

Article 22

1. The premises of the mission shall be inviolable. The

agents of the receiving State may not enter them, except

with the consent of the head of the mission.

2. The receiving State is under a special duty to take

all appropriate steps to protect the premises of the mis-

sion against any intrusion or damage and to prevent any

disturbance of the peace of the mission or impairment of

its dignity.

3. The premises of the mission, their furnishings and

other property thereon and the means of transport of

the mission shall be immune from search, requisition, at-

tachment or execution.

Article 23

1. The sending State and the head of the mission shall

be exempt from all national, regional or municipal dues

and taxes in respect of the premises of the mission,

whether owned or leased, other than such as represent

payment for specific services rendered. .

2. The exemption from taxation referred to in this

Article shall not apply to such dues and taxes payable

under the law of the receiving State by persons contract-

ing with the sending State or head of the mission,

Article 24

The archives and documents of the mission shall be in-

violable at any time and wherever they may be.

62a

Appendiaz C

Vienna Convention on Diplomatic Relations

Article 25

The receiving State shall accord full facilities for the

performance of functions of the mission.

Article 26

Subject to its laws and regulations concerning zones

entry into which is prohibited or regulated for reasons

of national security, the receiving State shall ensure to all

members of the mission freedom of movement and travel

in its territory.

Article 27

1. The receiving State shall permit and protect free

communication on the part of the mission for all official

purposes. In communicating with the Government and the

other missions and consulates of the sending State,

wherever situated, the mission may employ all appropriate

means, including diplomatic couriers and messages in code

or cipher. However, the mission may install and use a

wireless transmitter only with the consent of the receiving

State.

2. The official correspondence of the mission shall be

inviolable. Official corrsepondence means all correspond-

ence relating to the mission and its functions.

3. The diplomatic bag shall not be opened or detained.

4. The packages constituting the diplomatic bag must

bear visible external marks of their character and may

contain only diplomatic documents or articles intended

for official use.

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Appendix C

Vienna Convention on Diplomatic Relations

5. The diplomatic courier, who shall be provided with

an official document indicating his status and the number

of packages constituting the diplomatic bag, shall be pro-

tected by the receiving State in the performance of his

functions. He shall enjoy personal inviolability and shall

not be liable to any form of arrest or detention.

6. The sending State or the mission may designate

diplomatic couriers ad hoc. In such cases the provisions

of paragraph 5 of this Article shall also apply, except

that the immunities therein mentioned shall cease to apply

when such a courier has delivered to the consignee the

diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain

of a commercial aircraft scheduled to land at an authorized

port of entry. He shall be provided with an official docu-

ment indicating the number of packages constituting the

bag but shall not be considered to be a diplomatic courier.

The mission may send one of its members to take pos-

session of the diplomatic bag directly and freely from the

captain of the aircraft.

Article 28

The fees and charges levied by the mission in the course

of its official duties shall be exempt from all dues and taxes.

Article 29

The person of a diplomatic agent shall be inviolable.

He shall not be liable to any form of arrest or detention.

The receiving State shall treat him with due respect and

64a,

Appendix C

Vienna Convention on Diplomatic Relations

shall take all appropriate steps to prevent any attack on

his person, freedom or dignity.

Article 30

1. The private residence of a diplomatic agent shall

enjoy the same inviolability and protection as the premises

of the mission.

2. His papers, correspondence and, except as provided

in paragraph 3 of Article 31, his property, shall likewise

enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the

eriminal jurisdiction of the receiving State. He shail also

enjoy immunity from the civil and administrative juris-

diction, except in the case of:

(a) a real action relating to private immovable

porperty situated in the territory of the receiving

State, unless he holds it on behalf of the sending

State for the purposes of the mission;

(b) an action relating to succession in which the

diplomatic agent is involved as executor, admini-

strator, heir or legatee as a private person and not

on behalf of the sending State;

commercial activity exercised by the diplomatic

agent in the receiving State outside his official func-

tions.

65a

Appendix C

Vienna Convention on Diplomatic Relations

2. A diplomatic agent is not obliged to give evidence

as a witness.

3. No measures of execution may be taken in respect

of a diplomatic agent except in the cases coming under

sub-paragraph (a), (b) and (c) of paragraph 1 of this

Article, and provided that the measures concerned can

be taken without infringing the inviolability of his person

or of his residence.

4. The immunity of a diplomatic agent from the juris-

diction of the receiving State does not exempt him from

the jurisdiction of the sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents

and of persons enjoying immunity under Article 37 may

be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent

or by a person enjoying immunity from jurisdiction under

Article 37 shall preclude him from invoking immunity from

jurisdiction in respect of any counter-claim directly con-

nected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of

civil or administrative proceedings shall not be held to

imply waiver of immunity in respect of the execution of

the judgment, for which a separate waiver shall be neces-

sary.

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Appendiz C

Vienna Convention on Diplomatic Relations

Article 33

1. Subject to the provisions of paragraph 3 of this

Article, a diplomatic agent shall with respect to services

rendered for the sending State be exempt from social

security provision which may be in force in the receiving

State.

2. The exemption provided for in paragraph 1 of this

Article shall also apply to private servants who are in

the sole employ of a diplomatic agent, on condition:

(a) that they are not nationals of or permanently

resident in the receiving State; and

(b) that they are covered by the social security

provisions which may be in force in the sending

State or a third State.

3. A diplomatic agent who employs persons to whom

the exemption provided for in paragraph 2 of this Article

does not apply shall observe the obligations which the

social security provisions of the receiving State impose

upon employers.

4. The exemption provided for in paragraphs 1 and 2

of this Article shall not preclude voluntary participation

in the social security system of the receiving State pro-

vided that such participation is permitted by that State.

5. The provisions of this Article shall not affect bi-

lateral or multilateral agreements concerning social se-

curity concluded previously and shall not prevent the con-

clusion of such agreements in the future.

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Appendix C

Vienna Convention on Diplomatic Relations

Article 34

A diplomatic agent shall be exempt from all dues and

taxes, personal or real, national, regional or municipal,

except:

(a) indirect taxes of a kind which are normally

incorporated in the price of goods or services;

(b) dues and taxes on private immovable prop-

erty situated in the territory of the receiving State,

unless he holds it on behalf of the sending State for

the purposes of the mission;

by the receiving State, subject to the provisions of

paragraph 4 of Article 39;

(d) dues and taxes on private income having its

source in the recetving State and capital taxes on

investments made in commercial undertakings in

the receiving State;

(e) charges levied for specific services rendered ;

(f) registration, court or record fees, mortgage

dues and stamp duty, with respect to immovable

property, subject to the provisions of Article 23.

Article 35

The receiving State shall exempt dipomatic agents from

all personal services, from all public service of any kind

whatsoever, and from military obligations such as those

connected with requisitioning, military contributions and

billeting.

68a

Appendiz C

Vienna Convention on Diplomatic Relations

Article 36

1. The receiving State shall, in accordance with such laws

and regulations as it may adopt, permit entry of and grant

exemption from all customs duties, taxes, and related

charges other than charges for storage, cartage and simi-

lar services, on:

(a) articles for the official use of the mission;

(b) articles for the personal use of a diplomatic

agent or members of his family forming part of his

household, including articles intended for his estab-

lishment.

2. The personal baggage of a diplomatic agent shal

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