Diplomatic Agent-Level Immunity, 68778-68781 [2024-19192]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 89, Number 167 (Wednesday, August 28, 2024)]
[Rules and Regulations]
[Pages 68778-68781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19192]


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DEPARTMENT OF STATE

22 CFR Part 150

[Public Notice: 12475]
RIN 1400-AF85


Diplomatic Agent-Level Immunity

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Vienna Convention on Diplomatic Relations defines 
``diplomatic agent'' and the level of immunity enjoyed by a diplomatic 
agent. However, because some other individuals who are not themselves 
``diplomatic agents'' as defined in the VCDR also enjoy what is known 
as ``diplomatic agent-level immunity,'' the Department of State is 
promulgating this regulation to clearly and correctly define which 
foreign persons enjoy diplomatic agent-level immunity within the United 
States and clarify that the determination of who enjoys diplomatic 
agent-level immunity and lesser status-based immunity, which is both 
legal and factual in nature, is made by the Department of State.

DATES: This rule is effective on August 28, 2024.

FOR FURTHER INFORMATION CONTACT: Clifton M. Johnson, Diplomatic Law and 
Litigation, Office of the Legal Adviser, Department of State, 
Washington, DC 20520, (202) 647-1075, or [email protected] (for 
information regarding this final rule); Office of Foreign Missions, 
Department of State, Washington, DC 20520, or [email protected] (for 
information regarding diplomatic status and immunities in specific 
instances).

SUPPLEMENTARY INFORMATION: Pursuant to Article II of the Constitution 
which provides the President with the right to receive ambassadors and 
other public ministers, the Secretary of State's role to execute the 
foreign policy of the United States, specific provisions of the U.S. 
Code discussed below, and well established case law as noted below, the 
U.S. Department of State is uniquely positioned as the sole United 
States government agency that accepts the accreditation of foreign 
diplomats, and is authorized to determine and certify the diplomatic 
status of a foreign individual and the immunity enjoyed by that 
individual.
    This regulation defines who enjoys diplomatic agent-level immunity 
and clarifies the comprehensive scope of diplomatic agents' immunity 
for the non-exclusive purpose of facilitating judicial and 
administrative proceedings in the United States. The regulation also 
clarifies that the determination of who enjoys diplomatic agent-level 
immunity and lesser status-based immunity is one that requires 
application of law to facts and is made by the Department of State--not 
any other federal agency or by any foreign mission in the United 
States. Individuals enjoying diplomatic agent-level immunity are not 
subject to the criminal jurisdiction of the United States, and are 
immune from the civil or administrative jurisdiction of the United 
States, with limited exceptions. Such immunity is enjoyed by diplomatic 
agents at bilateral diplomatic missions pursuant to the Vienna 
Convention on Diplomatic Relations (VCDR, 23 U.S.T. 3227; see Articles 
29 and 31 in particular); certain senior officials of the United 
Nations pursuant to Article V, Section 19 of the Convention on 
Privileges and Immunities of the United Nations of 1970 (21 U.S.T. 
1418) (``UN Convention''); diplomatic staff at Permanent Missions of 
Member States to the United Nations pursuant to Article V, Section 15 
of the United Nations Headquarters Agreement of 1947 (1947 U.S.T. 529) 
and Article IV, Section 11 of the UN Convention; consular officers 
assigned to consulates of countries with which the United States has an 
enhanced immunities agreement that ``enhances'' their immunity to 
diplomatic agent-level; certain senior officials of and representatives 
to some international organizations (see, e.g., Agreement on Privileges 
and Immunities of the

[[Page 68779]]

Organization of American States (26 U.S.T. 1025) and Agreement on the 
Status of the North Atlantic Treaty Organization, National 
Representative and International Staff (33 U.S.T. 1272)); and others. 
Lesser forms of status-based immunity include administrative and 
technical staff immunity as set forth in the VCDR, which is generally 
coextensive with diplomatic-agent level immunity with the exception of 
civil immunity which is more limited (for official acts only); consular 
officer immunity as set forth in the Vienna Convention on Consular 
Relations (VCCR, 21 U.S.T. 77), which entails immunity for official 
acts and personal inviolability from arrest absent a warrant for grave 
crimes; and consular employee immunity as set forth in the VCCR, which 
entails immunity for official acts.
    Accordingly, the intent of the regulation is to strengthen the 
ability of law enforcement, the courts, foreign governments, and the 
public to recognize and rely upon authoritative determinations by the 
United States of the diplomatic status and corresponding level of 
status-based immunity enjoyed by foreign individuals. It is meant to 
discourage reliance on outdated or incomplete documentation of 
diplomatic status or assertions by persons other than Department of 
State officials that may lead to inaccurate understandings of who 
enjoys immunity and the scope of that immunity, and to direct 
interested parties to instead consult with the Department of State for 
such information. By doing so, the regulation will help ensure that 
individuals entitled to immunity will be treated accordingly and reduce 
the risk that individuals who erroneously or misleadingly assert such 
status are accorded immunity to which they are not entitled. The 
regulation is necessary to ensure the Secretary of State can continue 
to meet international and domestic legal obligations to respect the 
immunities accredited foreign diplomats enjoy. Specifically, the VCDR 
and various bilateral treaties enhancing immunities of individuals 
other than diplomatic agents establish immunities that the United 
States is obligated to respect under international law. Additionally, 
the Diplomatic Relations Act of 1978 (22 U.S.C. 254b(c)) establishes 
immunities for members of foreign missions and their families for 
foreign States not party to the VCDR. The Secretary and the Department 
of State are uniquely positioned to fulfill those responsibilities in 
this manner.
    The Department of State has legal authority to promulgate this 
regulation. Article II, Section 3 of the United States Constitution 
directs the President to ``receive Ambassadors and other public 
Ministers.'' 22 U.S.C. 2656 grants the Secretary of State authority to 
perform duties relative to matters respecting foreign affairs, 
including duties regarding applications and requests from foreign 
public ministers or other foreigners. Pursuant to this statutory 
authority, as well as Article 9 of the VCDR and Article 23 of the VCCR, 
the Department accepts accreditation of members of foreign diplomatic 
or consular missions at its discretion. Additionally, Article 10 of the 
VCDR and Article 24 of the VCCR provide that the Ministry of Foreign 
Affairs specifically, or the authority designated by that ministry (per 
the VCCR) or such other ministry as may be agreed (per the VCDR), shall 
be notified of the appointment of members of a diplomatic or consular 
mission. Under the VCDR, the Department of State has the broad 
discretion to classify diplomats. See Abdulaziz v. Metro. Dade Cty., 
741 F.2d 1328, 1330 (11th Cir. 1984). Additionally, pursuant to 22 
U.S.C. 2656 and the United Nations Headquarters Agreement of 1947, the 
Department of State also accords privileges and immunities to foreign 
individuals accredited to the United Nations.
    With respect to determining the status-based immunity that 
accredited foreign individuals and their family members enjoy, the 
Diplomatic Relations Act of 1978 (22 U.S.C. 254c(a)) authorizes the 
President to, ``on the basis of reciprocity and under such terms and 
conditions as he may determine, specify privileges and immunities for 
members of the mission, their families and the diplomatic couriers of 
any sending state which result in more favorable or less favorable 
treatment than is provided under the Vienna Convention.'' The President 
has delegated authority to prescribe regulations for that purpose to 
the Secretary of State through Executive Order 12101 (43 FR 54195), 
amended by Executive Order 12608 (52 FR 34617). The Diplomatic 
Relations Act of 1978, as amended (22 U.S.C. 254c(b)) also authorizes 
the Secretary of State, on the basis of reciprocity and under such 
terms and conditions as the Secretary may determine, with the 
concurrence of the Attorney General, to specify privileges and 
immunities for a consular post, the members of a consular post, and 
their families which result in more favorable or less favorable 
treatment than is provided in the VCCR. The Secretary's determinations 
of the scope of the status-based immunity of foreign individuals in 
that regard are made pursuant to international agreements with foreign 
governments that the Department of State negotiates, concludes, and 
interprets pursuant to 22 U.S.C. 254c(b), as well as the President's 
Article II authority to speak as the sole organ of the government with 
respect to agreements regarding diplomatic relations, delegated to the 
Secretary. See 22 U.S.C. 2656; United States v. Belmont, 301 U.S. 324, 
330 (1937). By according diplomatic agent-level immunity to foreign 
individuals, the Department of State is able to ``contribute to the 
development of friendly relations among nations'' and ``to ensure the 
efficient performance of the functions of the diplomatic missions.'' 
See Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 980 (D.C. Cir. 1965), 
citing the VCDR, preamble.
    As the above authorities illustrate, the Department of State is 
authorized to and responsible for determining whether someone enjoys 
diplomatic agent-level immunity or other status-based immunity, 
consistent with the concurrence requirements of 22 U.S.C. 254c(b), as 
applicable. 22 U.S.C. 2651a authorizes the Secretary ``to promulgate 
such rules and regulations as may be necessary to carry out the 
functions of the Secretary of State and the Department of State.'' 
Clarifying that the Department of State is responsible for indicating 
which foreign individuals enjoy diplomatic agent-level immunity or 
lesser status-based immunity will reduce the risk of conflicting 
determinations of the diplomatic status and corresponding immunity 
foreign individuals and their family members may enjoy.
    Courts have long held that the Department of State's certification 
is ``conclusive and dispositive evidence'' of a diplomat's entitlement 
to status-based immunity. See United States v. Al-Hamdi, 356 F.3d 564, 
573 (4th Cir. 2004) (``[W]e hold that the State Department's 
certification . . . is conclusive evidence as to the diplomatic status 
of an individual.''); Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328, 
1339 (11th Cir. 1984) (``[O]nce the United States Department of State 
has regularly certified a visitor to this country as having diplomatic 
status, the courts are bound to accept that determination.''); Muthana 
v. Pompeo, 985 F.3d 893, 906-09 (D.C. Cir. 2021); Carrera v. Carrera, 
174 F.2d 496, 497 (D.C. Cir. 1949) (``It is enough that an ambassador 
has requested immunity, that the State Department has recognized that 
the person for whom it was requested is entitled to it, and that

[[Page 68780]]

the Department's recognition has been communicated to the court.'').

Regulatory Analysis

Administrative Procedure Act

    This rulemaking is published as a final rule since it relates to a 
foreign affairs function of the United States and is exempt from 
notice-and-comment rulemaking. 5 U.S.C. 553(a)(1). Because this 
rulemaking is exempt from 5 U.S.C. 553, the provisions of 5 U.S.C. 
553(d) are not applicable and this rule is effective immediately.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Since this rule is exempt from notice and comment rulemaking, it is 
also exempt from the provisions of the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq.

Congressional Review Act

    This rulemaking does not constitute a major rule, as defined by 5 
U.S.C. 804, for purposes of congressional review of agency rulemaking.

The Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally 
requires agencies to prepare a statement before proposing any rule that 
may result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private sector. This rule will 
not result in any such expenditure nor would it significantly or 
uniquely affect small governments.

Executive Orders 12372 and 13132: Federalism and Executive Order 13175, 
Impact on Tribes

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Nor will the regulations have federalism 
implications warranting the application of Executive Orders 12372 and 
13132. This rule will not have tribal implications, will not impose 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Executive Orders 12866, 13563, and 14094: Regulatory Review

    This rule has been drafted in accordance with the principles of 
Executive Orders 12866 (as amended by Executive Order 14094) and 13563. 
This rule has been determined to be a significant rulemaking under 
section 3 of Executive Order 12866, but not significant under section 
3(f)(1). The benefits of the rule are qualitative, in that the rule 
provides clarity for foreign governments and their personnel, and 
secondarily for domestic officials and the public, on which individuals 
are entitled to diplomatic agent-level immunity and the scope of that 
immunity. Individuals enjoying diplomatic agent-level immunity are not 
subject to the criminal jurisdiction of the United States, and are 
immune from the civil or administrative jurisdiction of the United 
States, with limited exceptions. There are no costs to the rulemaking 
as the United States is already required to accord immunity to certain 
foreign individuals pursuant to its obligations under international 
law, including the VCDR. The rule does not expand or otherwise change 
the categories or number of individuals who enjoy diplomatic agent-
level immunity. The promulgation of this rule will not increase the 
number of individuals accorded diplomatic agent-level immunity, as the 
rule will not affect the long-standing standards by which the 
Department determines a foreign individual's status and corresponding 
immunity. This rule will help ensure that law enforcement, the courts, 
foreign governments, and the public are aware of the need to consult 
the Department of State to understand foreign individuals' diplomatic 
status and corresponding immunity, which is relevant for, among other 
purposes, understanding whether their family members born in the United 
States were born subject to the jurisdiction of the United States under 
the Fourteenth Amendment of the U.S. Constitution. The rule would 
reduce the risk of erroneous determinations detrimental to the foreign 
relations of the United States. This rule also clarifies that the 
Department itself, in accordance with international and domestic law 
and taking into account the comprehensive information available to it 
related to diplomatic status, identifies the diplomatic status and 
corresponding immunities of foreign persons. In the absence of this 
rule, there is continued risk of immunity being extended or not 
extended erroneously, which can result in, inter alia, the 
inappropriate exercise of criminal jurisdiction over accredited 
diplomats; the inaccurate determination of lawful permanent residence 
status; and erroneous decisions on whether an individual was born in 
the United States subject to the jurisdiction of the Fourteenth 
Amendment. Therefore, the Department believes that the qualitative 
benefits of this rulemaking are manifest, and there are few costs.

Executive Order 12988: Civil Justice Reform

    This rule has been reviewed in light of sections 3(a) and 3(b)(2) 
of Executive Order 12988 to eliminate ambiguity, minimize litigation, 
establish clear legal standards, and reduce burden.

The Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
Federal agencies must obtain approval from OMB for each collection of 
information they conduct, sponsor, or require through regulation. This 
rule neither establishes nor modifies any collection of information 
subject to the Paperwork Reduction Act.

List of Subjects in 22 CFR Part 150

    Foreign officials; Immunity.

    For the reasons set forth above the State Department amends title 
22, chapter I by adding part 150 to subpart P to read as follows:

PART 150--DIPLOMATIC AGENT-LEVEL IMMUNITY

Sec.
150.1 Diplomatic Agent-Level Immunity.
150.2 Determination by the Department of State.
150.3 Severability.

    Authority:  22 U.S.C. 2651a, 2656; 22 U.S.C. 254c; Vienna 
Convention on Diplomatic Relations, Done at Vienna April 18, 1961, 
23 U.S.T. 3227; Vienna Convention on Consular Relations, Done at 
Vienna April 24, 1963, 21 U.S.T. 77; Convention on the Privileges 
and Immunities of the United Nations, 21 U.S.T. 1418.


Sec.  150.1  Diplomatic Agent-Level Immunity.

    Diplomatic Agent-Level Immunity refers to the complete immunity 
from the criminal jurisdiction of the United States and to 
comprehensive immunity from the civil and administrative jurisdiction 
of the United States, and is enjoyed by:
    (a) Foreign individuals accredited to the United States as 
``diplomatic agents'' under the Vienna Convention on Diplomatic 
Relations, and the family members forming part of their households;
    (b) Foreign individuals accredited to the United States as 
administrative and technical staff or service staff of diplomatic 
missions, or as consular officers of consular missions, and the family 
members forming part of their households, representing a foreign 
government with which the United States has an international agreement 
for the enhancement of immunity of

[[Page 68781]]

those individuals to diplomatic agent-level immunity; and
    (c) Certain other foreign officials and representatives as 
determined by the Department of State.


Sec.  150.2  Determination by the Department of State.

    The question of whether any particular person enjoys diplomatic 
agent-level immunity and is therefore not subject to the jurisdiction 
of the United States, or whether they enjoy lesser status-based 
immunity, on any particular date entails both factual and legal 
analysis, and is determined by the Department of State, in accordance 
with relevant international and domestic law.


Sec.  150.3  Severability.

    The provisions of this part are separate and severable from one 
another. If any provision is stayed or determined to be invalid, it is 
the Department of State's intention that the remaining provisions shall 
continue in effect.

Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of 
State.
[FR Doc. 2024-19192 Filed 8-27-24; 8:45 am]
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