2 FAM 220
IMMUNITIES OF U.S. REPRESENTATIVES AND ESTABLISHMENTS
ABROAD
(CT:GEN-526; 09-12-2018)
(Office of Origin: L/DL)
2 FAM 221 DIPLOMATIC IMMUNITIES
2 FAM 221.1 Diplomatic Personnel
(CT:GEN-366; 09-25-2009)
a. Diplomatic agents accredited to a foreign government
as ambassadors or other public ministers are immune from the jurisdiction of
all courts and tribunals of the receiving state, whether criminal or civil.
They cannot be prosecuted, sued, punished, or compelled to testify in the
country to which accredited. The families and members of households of such
diplomatic agents enjoy the same immunity.
b. Chiefs of mission are encouraged to request that the
foreign ministry provide formal notification of the privileges and immunities
that host government accreditation extends to the various categories of mission
personnel, and to report such information to their post management officer in
the Department.
2 FAM 221.2 Restriction on
Diplomatic Privileges
(CT:GEN-386; 10-27-2011)
a. Foreign Service posts must not, except as provided
in this section, seek or assist in obtaining diplomatic privileges and
immunities (by means of normal notifications to the host government or otherwise)
for persons who are not assigned to official duty at the U.S. Government
mission; physically residing at post; and working on mission premises,
regardless of the status that may be accorded such persons by local
authorities. Persons not normally entitled to privileges and immunities under
the foregoing restrictions include but are not limited to international
organization personnel, Federal agency personnel not meeting the above
criteria, retired U.S. Government officials, contract personnel, private U.S.
citizens (grantees, teachers, clergy, etc.), and representatives of State
governments.
b. The Department recognizes that under certain
circumstances, it may be in the national interest to seek the accreditation of
personnel other than those described in 2 FAM 221.2
paragraph a. In such cases, the Department may authorize limited exceptions to
the general rule cited in paragraph a of this section, applicable to specific
individuals or posts.
c. Requests for the notification of U.S. Government
employees abroad (see 2 FAM 221.2
paragraph e, for non-U.S. Government employee notification standards) should be
made to the Bureau of Human Resources (HR), which will consider the request, in
light of U.S. national interests. HR may, at its discretion, grant requests
when the following criteria are generally satisfied:
(1) The work is of at least 90 days consecutive
duration;
(2) The individual resides at post and works on
mission premises;
(3) The activities support the function of the
diplomatic mission (defined as representing the United States; protecting its
interests and nationals; and negotiating with and/or ascertaining developments
in the receiving state). Such activities usually include, or are characterized
by, a liaison function in which the employee works out of the embassy and
liaises with central government officials on policy issues, as distinct from
directly engaging in programmatic activities;
(4) The individuals are in fact performing the
functions commensurate with their titles (e.g., administrative and technical
staff must be employed in the administrative and technical service of the
mission); and
(5) Alternate means (such as a bilateral agreement) to
secure privileges and immunities for the persons in question are not feasible.
d. It may be in the national interest, under certain
circumstances, to seek the accreditation of persons who are not U.S. Government
employees (including U.S. Government personal services contractors; commercial
contractors performing business on behalf of the U.S. Government; and
grantees). For example, personnel performing such highly sensitive functions as
embassy construction, security, or communications (who may be clear targets for
hostile intelligence penetration) and narcotics eradication, enforcement, and
interdiction in remote locations may present a compelling case for
accreditation. Therefore, the Department may authorize limited exceptions to
the general rule cited above, applicable to specific individuals or posts.
e. Requests for the notification of persons who are not
U.S. Government employees abroad should be made to HR, who will consider the
request in light of U.S. national interests, including the following factors.
Requests may be granted at the discretion of HR when the following criteria are
generally satisfied:
(1) Accreditation of such personnel is necessary to
overcome significant barriers to entry or residence in the receiving state;
(2) Security concerns warrant accreditation, as
evidenced by the nature of the work performed and/or the level of security
clearance;
(3) Such personnel will be performing diplomatic and
consular support functions;
(4) The employment relationship, and in particular the
provisions of the contract, provide adequate departmental and chief-of-mission
control over either the personal services contractor or the commercial contract
firm and its individual employees (non-personal services contractors) (and its
subcontractors and their individual employees, where relevant), including in
particular a right of withdrawal from the host country of individual personnel;
and
(5) The projected length of stay is equal to or
greater than the minimum length of stay for which diplomatic or consular
personnel are accredited.
f. Even where accreditation appears to satisfy the
criteria in 2
FAM 221.2 paragraphs e(1) through e(5), the Department may decline a
request to seek accreditation when it considers that the privileges and
immunities that would be granted by the receiving state are inappropriate to
such contract personnel or where accreditation would not otherwise serve
national interests. The following factors may be relevant to declining such a
request:
(1) Seeking accreditation for such personnel will
create obligations or expectations of reciprocal treatment for similar personnel
assigned to the United States, and the likelihood of reciprocal treatment is
small; or
(2) Host-state numerical limitations on diplomatic or
consular personnel would or may be exceeded by the accreditation of contract
personnel.
g. Persons who are not U.S. Government employees but
who are approved for notification will normally be notified at the
administrative and technical staff or consular employee level. (For these
procedures, see 3 FAH-1
Exhibit 2439.)
h. The Department recognizes that under certain
circumstances it may be in the national interest to seek privileges and
immunities for persons other than those persons who can be accredited to a U.S.
Government mission. In such cases, the Department may authorize negotiation and
conclusion of an international agreement to provide such privileges and
immunities. Follow the procedures in 11 FAM 720 to
negotiate international agreements, which require advance Department approval.
2 FAM 221.3 Inviolability of
Archives and Premises of Diplomatic Missions
(CT:GEN-366; 09-25-2009)
Embassies, chanceries, and all buildings used for
diplomatic purposes, including residences of some embassy personnel, together
with their contents and archives, are inviolable in accordance with the Vienna
Convention on Diplomatic Relations. Such premises are immune from entry and
search, and the premises, contents, and archives are not subject to the legal
process of the receiving state.
2 FAM 221.4 Diplomatic Couriers
(CT:GEN-386; 10-27-2011)
The Vienna Convention on Diplomatic Relations, Article
27(5) provides that diplomatic couriers carrying official documents indicating
their status shall be protected by the receiving State in the performance of
[their] functions. They also enjoy personal inviolability, which means that
they shall not be liable to any form of arrest or detention. In addition,
under Article 27 the packages constituting the diplomatic bag which are marked
as such may not be opened, including by x-ray inspection, or detained.
2 FAM 221.5 Waiver of Immunity
(CT:GEN-506; 05-23-2018)
a. The immunities described in this section will not be
waived by the post, except with the prior express consent of the Department,
which normally will be requested via cable or other written correspondence and,
in any event, must always be in writing. Set forth requests for waiver of
immunity in sufficient factual detail to afford the Department an adequate
basis to act thereon and address them to the Department to the attention of the
Office of the Assistant Legal Adviser for Diplomatic Law and Legislation (L/DL)
and to the executive director of the appropriate regional bureau. List other
Department offices as addressees or consult them, as appropriate. Forward an
information copy of the request, as well as the Departments response thereto,
to the Chief of Protocol (S/CPR) and the Office of Foreign Missions (M/OFM) for
the purpose of evaluating the reciprocity factors applicable to foreign
missions and their personnel in the United States. b. Follow these guidelines
in the types of cases described in paragraphs (1), (2), and (3):
(1) In cases involving official activities of
Department personnel, the key factor in determining whether or not immunity may
be waived is the potential impact upon the interests of the U.S. Government. If
the interests of the U.S. Government are not likely to be injured as a result
of the waiver, and if the interests of the individual whose immunity is to be
waived are not likely to be adversely affected, a presumption in favor of
waiver will be authorized if the interests of justice will be served;
(2) Except as provided in 2 FAM 221.5
subparagraph (3), the immunity of a Department employee will not normally be
waived in private cases unless the employee consents or unless there is
evidence that the waiver is essential to protecting the interests of innocent
third parties, the U.S. Government, or both; and
(3) In private domestic relations matters (including
divorce, separation, maintenance, child custody, and child support), the
Department will adhere to the following guidelines:
(a) If both parties consent and the action is pursued
in the United States, the Department will normally grant any necessary waiver
of immunity;
(b) If one party is in the United States and the other
party is at post, a waiver will be granted for the purpose of allowing service
of process on the latter if that party consents;
(c) If one party is in the United States and the other
party is at post, a waiver of immunity will be authorized to allow service on
the party at post absent that partys consent only if the waiver is necessary
in order to prevent undue hardship on the party seeking service, or family
members, and if the action is to be pursued in the United States; and
(d) Waiver of immunity will normally be granted to
allow a domestic relations action to be pursued in the host country if both
parties consent and if the prosecution of the action will not adversely affect
the interests of the U.S. Government.
2 FAM 222 EMPLOYEES OF DIPLOMATIC
MISSIONS
2 FAM 222.1 Embassy Officers and
Employees
(CT:GEN-366; 09-25-2009)
The status of employees accredited to the embassy is
governed by the Vienna Convention on Diplomatic Relations, which provides
different levels of immunities, depending on whether an individual is accredited
to the embassy as a diplomatic agent, member of the administrative and
technical staff, or as a member of the service staff.
2 FAM 222.2 Subject to Military
Service
(CT:GEN-207; 04-25-1983)
Principal officers should not request exemptions from military
service for Foreign Service national employees or servants.
2 FAM 222.3 Names Furnished to
Local Governments
(CT:GEN-207; 04-25-1983)
A mission may, when requested, furnish to the local
government a list of names of Foreign Service national employees. This is not
in lieu of the usual practice of notifying the receiving state of the
employment of its nationals, where notification to and acceptance by the
receiving state is a condition of extending them immunity.
2 FAM 222.4 Protests When Immunities
Are Violated
(CT:GEN-386; 10-27-2011)
When the local authorities refuse to recognize the
immunities to which the U.S. Government considers its Foreign Service national
employees are entitled, chiefs of mission must make appropriate representations
to the local authorities and must report such action to the Department. Such
representation should be based on the Vienna Convention on Diplomatic
Relations, the Vienna Convention on Consular Relations, or such bilateral
agreement as may have provided the basis for privileges and immunities in
consultation with L/DL.
2 FAM 223 CONSULAR IMMUNITIES
2 FAM 223.1 Consular Officers and
Employees
(CT: GEN-310; 01-15-2004)
The status of consular officers and consular employees is
usually governed by the Vienna Convention on Consular Relations, which
generally provides that officers and employees who are nationals of the sending
state are immune from the local jurisdiction for all official acts. It must be
ascertained in each instance whether a bilateral treaty or agreement about
immunities of consular officers and employees is in effect, in which case the
privileges and immunities granted by the terms of the treaty are applicable.
2 FAM 223.2 Inviolability of
Consular Premises and Archives
(CT: GEN-310; 01-15-2004)
Consular archives are to be considered inviolable. The
Vienna Convention on Consular Relations provides that those portions of the
consular premises that are used exclusively for the work of the consular post
are inviolable. The residences of consular officers, in the absence of a treaty
or agreement so providing, are not inviolable.
2 FAM 223.3 Employees of Consular
Posts
(CT:GEN-297; 11-15-1999)
Immunities should not be claimed for Foreign Service
national employees or servants who are nationals of the country in which a
consular post is located. When there is a consular convention between the United States and the country concerned, the local employee will be accorded the immunity
specified in the convention.
2 FAM 223.4 Infringement of
Consular Immunities To Be Protested
(CT:GEN-366; 09-25-2009)
Consular officers shall familiarize themselves with the
pertinent treaties and agreements regarding consular privileges, rights, and
duties in the country of assignment. A consular officer, in consultation with
L/DL, must protest to the appropriate local authorities any infringement of the
rights and privileges necessary to carry out the consular officers duties.
2 FAM 224 OTHER U.S.
REPRESENTATIVES
(CT:GEN-366; 09-25-2009)
Immunities, if any, of U.S. representatives other than
individuals accredited to an embassy or consulate depend primarily on specific
treaties or agreements in each case and may vary accordingly from country to
country. Questions concerning immunities of such representatives are referred
to the Department (L/DL), when necessary.
2 FAM 225 ABUSE OF PRIVILEGES AND
IMMUNITIES
2 FAM 225.1 Evasion of Personal
Obligations
(CT:GEN-386; 10-27-2011)
A diplomatic or consular officer, or other representative
of the United States, must not take advantage of the protection afforded by
reason of the officers official position nor should the officer evade the
settlement of just obligations.
2 FAM 225.2 Property Held in
Personal Capacity
(CT:GEN-206; 04-18-1983)
If a diplomatic officer holds real or personal property in
a foreign country, in a personal as distinguished from an official capacity,
such property, not necessary or incident to the officers official assignment,
may be subject to the local laws.
2 FAM 225.3 Importation and Sale
of Personal Property
(CT:GEN-386; 10-27-2011)
(Uniform State/AID/Commerce/Agriculture)
a. These provisions apply to the personal effects of
all U.S. Government employees (including contractor employees) and their
spouses and dependents, regardless of agency, under the jurisdiction of the
chief of mission.
b. Personal property imported into host countries by
U.S. citizen employees under diplomatic privileges and immunities must be for
their bona fide personal use or that of their dependents. The chief of mission
must establish procedures to ensure that subsequent sales of such property are
in compliance with bilateral agreements, international treaties, and host
government laws.
c. In instances where there is reason to believe that
bona fide personal use would not be or has not been the intended purpose of the
importation, the chief of mission or designee, after coordination with the
Office of Inspector General/Office of Investigation (OIG/INV), will investigate
the importation, or the request therefore, if the importation has not yet been
authorized. If, based on the investigation, the chief of mission determines
that the property was imported or intended to be imported under diplomatic
privileges and immunities primarily for the purpose of sale at a profit, the
chief of mission may take one or more of the following actions:
(1) As appropriate, deny request to import the
property or deny the sale;
(2) Require the employee to repay the U.S. Government
the original cost of shipping the property to post;
(3) Deny use of embassy facilities for conversion or
transfer of funds;
(4) Withhold certification of employees diplomatic or
official privileges to sell, register, or transfer title to the property;
(5) Require property to be reexported at employees
expense; and
(6) Take such other action as may be appropriate,
including recommending disciplinary action against the employee.
b. See also 3 FAM 4100, Employee Relations, and 14 FAM 615.7,
Limitations at Specific Posts, for treatment of this subject.
2 FAM 225.4 Notifying the Office of
Inspector General (OIG)
(CT:GEN-297; 11-15-1999)
Promptly notify the Office of Inspector General/Office of
Investigations (OIG/NIV) if there is reason to believe that U.S.
or host-country laws or regulations have been violated.
2 FAM 226 REPORTING ON LITIGATION
(CT:GEN-506; 05-23-2018)
a. Each post must inform the Department of any
litigation in a local court in which a U.S. citizen employee may become
involved in the employees private capacity. The posts report should be in the
form prescribed in 2
FAM 280 for reporting suits against the United States but should not be
marked for the attention of the Justice Department. The posts initial report
must include full particulars regarding the accreditation of the employee to
the foreign government for purposes of privileges and immunities. b. Members
of the Foreign Service are responsible for reporting to their posts of
assignment litigation in foreign courts in which they may become involved.
Members must avoid taking actions that may imply an unauthorized waiver of
immunity in violation of 2 FAM 221.5.
c. See 2 FAM 280,
Claims Against the United States, for suits against a member of the Foreign
Service in that members official capacity.
2 FAM 227 REQUESTS FOR ASYLUM BY
FOREIGN NATIONALS
2 FAM 227.1 Policy
(CT:GEN-526; 09-12-2018)
a. Due to the wide variety of circumstances that may be
involved, requests for protection made by foreign nationals at posts should be
dealt with on an individual basis. The ability of the U.S. Government to give
assistance will vary with location and circumstances of the request.
b. The Bureau of Intelligence and Research issues
annual instructions to posts by cable on how to handle such requests.
Appropriate officers, as identified in the cable,
should review that material.
c. If after a thorough review of the instructions, a
post feels it needs further guidance in an emergency situation, it should
contact the Operations Center. The Operations Center will alert the appropriate
Department personnel who will provide post with assistance on how to proceed.
2 FAM 227.2 Background
(CT:GEN-481; 11-02-2017)
a. General Policy: The general policy of the United
States is to encourage local or regional resettlement of refugees and
international burden-sharing among governments providing third-country
resettlement opportunities. Therefore, in routine cases involving asylum
seekers from third countries, refer individuals to the United Nations High
Commissioner for Refugees (UNHCR), or, if the host country has satisfactory
asylum procedures, to the host government for adjudication of the refugees
asylum claim.
b. Asylum: Posts may not grant or in any way promise
asylum to any foreign national. Although foreign nationals may request
asylum, posts should be aware that the term has specific meaning in U.S.
immigration law. Persons may apply for asylum under U.S. law only if they are
physically present in the United States or at a land border or port of entry
and may be granted asylum only if they meet the definition of a refugee under
U.S. law and are otherwise admissible. The United States does not recognize the
granting of asylum at posts abroad. Requests for asylum by persons in the
United States are handled by the Department of Homeland Security (DHS) and the
immigration courts of the Executive Office for Immigration Review within the
Department of Justice. Refer questions relating to such procedures to the
Department, Bureau of Democracy, Human Rights and Labor, Office of Multilateral
and Global Affairs (DRL/MLGA).
c. Refugees: Posts may not in any way promise that an
individual will be admitted to the United States as a refugee. A U.S. embassy
may refer any individual who appears to meet the definition of a refugee to the
U.S. Refugee Admissions Program for consideration. Embassies may refer someone
to ensure protection or provide a durable solution in compelling circumstances.
Due to resource constraints and other foreign policy concerns, posts usually
refer individuals only because of a significant humanitarian concern; a
particular U.S. Government interest; or an especially close link to the United
States. Acceptance of a referral by the program does not guarantee that an
individual will be admitted to the United States as a refugee. See 9 FAM 203,
Refugees and Asylees, for guidance on embassy referrals.
2 FAM 228 THROUGH 229 UNASSIGNED