Art. 11 reads:

Article 11

In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence

(a) under the law of the State of execution; or

(b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration. Art. 23 reads:

Article 23

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

See, further, the 1977 Digest, pp. 490-492.

87

Sovereign Immunity

Governmental Activities

United States Veterans Administration

The widow of a member of the Philippine Scouts, whose claim for benefits had been disallowed by the United States Veterans Administration (on the basis of evidence that he had aided an enemy of the United States or its Allies during World War II), brought suit for damages in the Court of First Instance of Manila, Republic of the Philippines, Sixth Judicial District, Branch XXV, against the director of the Veterans Administration's regional office at Manila, two adjudication officers in the regional office, and a regional office field investigator. The last mentioned individual was of Philippine nationality; the other three were Americans attached to the American Embassy at Manila.

The Philippine Department of Foreign Affairs forwarded the complaint to the Embassy on December 12, 1977, with a summons requiring the defendants to file their answer to the complaint within 15 days after actual service of the summons. After consulting with the Department of State, the Embassy returned the summons and complaint to the Department of Foreign Affairs, by its note No. 759, December 27, 1977, reading in part:

The plaintiff, by her complaint, proposes to litigate the correctness of the decision of the United States Veterans Administration disallowing her claim for monetary benefits as widow of the veteran . . ., attributing to the named defendants the denial of the claim.

The Embassy wishes to note that although the complaint is couched in terms of a suit against individual officials and employees of the United States Veterans Administration, it is readily apparent that the suit is in reality one against the United States Veterans Administration and seeks to subject to Philippine court review a determination of the United States Veterans Administration. The administration of the Veterans Benefits Act concerns a government activity of the United States of the highest order, the responsibility for which Congress has vested in the United States Veterans Administration, with limited review exclusively in the courts of the United States. This is fully recognized in the decision of the Philippine Supreme Court dated September 8, 1972, in the case of Tafalla v. Francisco et al., UDK-1117, holding that, it is well settled

in this jurisdiction that respondent United States Veterans Administration and its director or manager as such are mere agents of the government of the United States of America, which, under the Philippine law, as well as under international law, may not be sued without its consent."

The Embassy also wishes to inform the Department that the plaintiff is not without an administrative remedy. Open to her is the right of appeal to the Board of Veterans Appeals in Washington, D.C., within one year from March 16, 1977, the date she was notified of the decision on her claim. The records of the United States Veterans Administration in Manila indicate that she has availed herself of this remedy and her case is pending before the appellate board.

Finally, it should be noted that the individually named defendants are immune from suits of this kind pursuant to the Vienna Convention on Diplomatic Relations and accepted practice in international law. Mr. Price holds the rank and title of Attaché for Veterans Affairs and is a diplomatic agent within the meaning of article 31 of the Convention. As Adjudication Officers, Mr. Miller and Mr. Brockman are members of the administrative and technical staff of the mission within the meaning of article 37 of the Convention. As a Field Examiner, Mr. Solano is also a member of the mission staff against whom a suit of this kind would clearly constitute an undue interference with the performance of the functions of the mission impermissible under article 38 of the Convention.

On Feb. 9, 1978, Judge Pedro A. Ramirez dismissed the plaintiff's complaint, by an order quoting the excerpt from the Embassy's note, ante, "to which observations this Court agrees."

Civil Case No. 112117, Court of First Instance of Manila, Sixth Judicial District, Branch XXX.

The plaintiff then applied to the Supreme Court of the Republic of the Philippines for certiorari, which denied the petition for lack of merit.

Tel. 11232 from Manila to Dept. of State, July 5, 1978.

Information Centers

In Gittler v. German Information Center, 408 N.Y.S. 2d 600 (1978), the widow and executrix of Lewis Gittler sued the German Informa

tion Center in New York City and a public relations firm for allegedly unpaid compensation and other benefits arising out of a purported agreement between the deceased and the Center for the production of a series of documentary-type films. The plaintiff claimed that the Center had employed her husband from 1953 until shortly before his death in 1974, and that it had contracted with him, additionally, to produce films outside the scope of his regular employment, for which the Center had promised additional compensation apart from his regular salary.

The Center was established in 1961 to provide the American public with information on issues and developments involved in the domestic and foreign policies of the Federal Republic of Germany, in order to strengthen friendly relations between it and the United States. The Center carried out its task by answering individual information requests, providing research facilities, promoting and assisting conferences at leading American universities, and cooperating with all forms of American media. It also maintained a 7,000-volume library, a reading room with an extensive selection of German and American periodicals, a newspaper and photo archive on German subjects, and a film lending library for schools, colleges, clubs, civic organizations, and television stations. The Center charged no fees for use of the films, which it distributed at its own cost, as a service.

The Center moved to dismiss the complaint for lack of personal and subject matter jurisdiction. An affidavit of its Director, who was also a Deputy Consul General of the Federal Republic of Germany, in support of the motion to dismiss, alleged that: (1) the Center was a section of the Consulate General, and under 28 U.S.C. 1351, Federal courts had exclusive jurisdiction over actions against foreign consuls [Note: Since enactment of Public Law 95-393, approved September 30, 1978, such Federal exclusive jurisdiction is limited to civil actions. See Chapter 4, section 1, this Digest, ante.]; (2) the purported service of process on the Center was prohibited by articles 31 and 43 of the Vienna Convention on Consular Relations [1963]; and (3) as a section of the Consulate General, the Center was an integral part of the government of a foreign country and therefore immune from suit under the doctrine of sovereign immunity. The affidavit stated in part:

10. The German Information Center is not a separate legal entity but is a section of the Consulate General of the Federal Republic of Germany. The Director of the German Information Center is a Deputy Consul General of the Federal Republic of Germany. The Deputy Director of the German Information Center is a Consul of the Federal Republic of Germany. Both officials are duly registered as such with the United States Department of State.

11. The German Information Center is financed by the Federal Republic of Germany and does not engage in any commercial activities. Its sole function is to disseminate government information concerning the Federal Republic of Germany to the American public.

12. . . . [T]he German Information Center is, in any event, entitled to both consular immunity against an action of this nature pursuant to article 31 of the Vienna Convention on Consular Relations, 21 UST 78, and to sovereign immunity as part of the government of a foreign country.

By a note, May 24, 1976, the Embassy of the Federal Republic of Germany requested the Department of State to suggest to the court sovereign immunity from jurisdiction. The Department initially declined to make a determination, because of its "uniform practice" (prior to enactment of the Foreign Sovereign Immunities Act of 1976, Public Law 94-583, October 21, 1976, effective January 19, 1977, 90 Stat. 2891, 28 U.S.C. 1330, 1332, 1391, 1441, 1602-1611), of not making determinations of immunity from jurisdiction while other procedural defenses were unresolved. Counsel for the German Information Center withdrew the issues of Federal jurisdiction and improper service, with prejudice, and the Department of State proceeded to consider the parties' views. On October 14, 1976, Justice Sidney H. Asch granted the Center's request to stay its motion to dismiss (that raised sovereign immunities issues) pending consideration of the matter by the Department of State.

Counsel for the Center submitted a memorandum in support of the request for a suggestion of sovereign immunity, putting at issue the allegations of fact concerning deceased's status as a Center employee and describing him, instead, as an employee of the Center's public relations consultant firm, its co-defendant in the action. On the law side, the memorandum argued that the Center's activities were public acts of a foreign state carried out by consular officials in the regular course of their duties, duties which clearly fell within the definition of consular functions contained in article 5(b) of the Vienna Convention on Consular Relations, and thus immune from suit in both Federal and State courts.

The Department of State's determination against a suggestion of sovereign immunity (see the 1977 Digest, pages 1079-1080) did not address the question of consular functions, but stated that the employment or engagement of persons to perform public relations services was not a uniquely governmental activity, and was essentially of a commercial or private law nature. Justice Asch did not agree, however, and in his opinion of June 30, 1978, said:

Under all of the circumstances, the Court will consider the opinion of the Department as something akin to expert testimony

and, while according it some weight, will decline to treat it as controlling. Indeed, long before the passage of the Foreign Sovereign Immunities Act, the courts refused to be bound "never [to] grant immunity unless the State Department specifically requests it." (Victory Transport Inc. v. Comisaria General, 336 F.2d 354 at 358)

The landmark case of Victory Transport Inc. v. Comisaria General, supra, sets forth at page 360 the workable guideline that a claim for sovereign immunity should be denied "unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive."

The development of "economic, cultural and scientific relations" and the promotion of "friendly relations" are recognized as diplomatic functions by the 1961 Vienna Convention on Diplomatic Relations, 23 UST 3229, article 3.

Accordingly, the court finds that the alleged employment of plaintiff's decedent was "an act concerning diplomatic activity"; the defense of sovereign immunity is therefore afforded to defendant GIC, and the complaint is dismissed as to it.

The memorandum submitted on behalf of the German Information Center's request for a suggestion of sovereign immunity had argued in part:

In summary, the activities of the German Information Center, even as alleged by plaintiff, are proper consular functions, as defined by the Vienna Convention on Consular Relations and as recognized by the court of appeals in the Heaney [Heaney v. Government of Spain, 445 F. 2d 501] case, which are entitled to immunity as "public acts" of a foreign state under the sovereign immunity doctrine.

The German Government and the individual German states have at all times accorded the same privileges to the United States Information Centers ("Amerika Haeuser"). For example, in a letter to the Minister of Finance, dated December 13, 1962, the German Foreign Office stated that the activities of the "Amerika Haeuser" fall within the scope of consular functions and that the "Amerika Haeuser" would be treated as a part of the American consular representation in Germany with all the privileges accorded to consular agencies. Further, the State of Bavaria recently wrote to the German Foreign Office in a letter dated October 20, 1976, that the "Amerika Haus" in Munich is treated as a part of the American Consulate General in Munich and that the director and deputy director of the Amerika Haus are recognized as consular officials.

The United States Government has also consistently taken the position that the activities of the U.S. Information Centers in Germany constitute diplo matic and consular functions. As recently as March 18, 1976, Verbal Note No. 89 from the United States Embassy in Bonn to the German Foreign Office stated:

"In this respect, the Information Centers, popularly known as Amerika Haeuser, were established by the United States Government in the Federal Republic of Germany to promote friendly and cultural relations between peoples of the two countries. They were covered as functions of diplomatic and consular missions by articles 3(e) and 5(b) of the Vienna Conventions on Diplomatic and Consular Relations, respectively. Amerika Haeuser are a function of the United States Information Service (USIS) in Germany and, as such an integral part of the diplomatic and consular missions in Germany. In recognition of the diplomatic and consular status and function of Amerika