# **VIA TELEFAX**

**[(561) 778-7211]{.underline}**

# 

#  March 24, 2000

Dean J. Merten, Esq.

# Assistant State Attorney

Office of the State Attorney

19^th^ Judicial Circuit of Florida

# 2000 Sixteenth Avenue, Suite 329

# Vero Beach, FL 32960

[RE: State of Florida v. xxxx, County Court, Nineteenth Judicial
District, xxxx]{.underline}.

Dear Mr. Merten:

I am writing in response to your inquiry concerning xxxx, an employee of
the Taipei Economic and Cultural Representative Office ("TECRO,"
formerly known as \"CCNAA,\" the \"Coordination Council for North
American Affairs\", [see]{.underline} Executive Order No. 13014 of
August 15, 1996, and the Taiwan Relations Act, 22 U.S.C. §3301
[et]{.underline} [seq]{.underline}.\[\"TRA\"\]) in Miami, who has been
charged with xxxx. xxxx has asserted jurisdictional immunity from the
xxxx charge.

As background, in 1979 the U.S. Government established diplomatic
relations with the People's Republic of China (PRC), and recognized the
PRC Government as the sole legal government of China. Both the U.S. and
the PRC agreed that the people of the United States would maintain
cultural, commercial and other unofficial relations with the people on
Taiwan. The TRA provides the legal framework for the conduct of these
unofficial relations. It provides, [inter]{.underline} alia, that
programs, transactions, and other relations conducted or carried out by
the President or any agency of the U.S. Government with respect to
Taiwan shall, in the manner and to the extent directed by the President,
be conducted and carried out by or through the American Institute in
Taiwan (AIT). AIT was established at the direction of Congress and is
under contract to the Department of State to carry out the functions
specified in the TRA.

Taiwan has established TECRO as AIT\'s counterpart organization in the
United States. TECRO has its U.S. headquarters in Washington, D.C., and
other offices (Taipei Economic and Cultural Offices, or \"TECO\'s\") in
major cities around the United States, including Miami. The unofficial
relations between the people of the United States and the people on
Taiwan are carried out through these organizations.

The jurisdictional immunities of TECRO employees in the United States
are set forth in the "Agreement on Privileges, Exemptions and Immunities
Between the American Institute in Taiwan and the Coordination Council
for North American Affairs" ("Agreement")(copy attached). Under article
2(b) of the Agreement, persons must be notified to and accepted by AIT
if they are to enjoy the benefits of the Agreement. AIT has confirmed to
us that xxxx was duly notified and accepted as a TECRO employee, and
that he is, therefore, covered under the Agreement. Article 5(e) of the
Agreement provides that:

> Designated employees of each sending counterpart organization shall be
> immune from suit and legal processes relating to acts performed by
> them within the scope of their authorized functions, unless such
> immunity be specifically waived by the sending counterpart
> organization.

Under this provision, xxxx has immunity from the xxxx charge only if his
conduct occurred "within the scope of his authorized functions." (It
bears emphasis that this type of \"official acts immunity\" is not
peculiar to TECRO. Similar immunity attaches to a significant number of
other foreign government officials who work in this country as well.) In
United States practice, the federal government does not dictate the
result when official duty questions arise. Rather, such issues are left
to the courts, which will make the appropriate determination based on
their application of governing laws to the facts and circumstances of
the particular case.

To determine whether xxxx is entitled to immunity, the Florida court
would presumably first wish to examine the functions of TECRO in the
United States. TECRO's functions and those of AIT, its counterpart
United States entity, are addressed generally in the Taiwan Relations
Act. In particular, section 7 of the TRA authorizes the provision of
consular services by AIT; section 10 contemplates that Taiwan's
counterpart entity, TECRO, will perform comparable functions in the U.S.
In practical terms, TECRO employees in the United States perform
functions much like those provided by the consular officials of foreign
governments with which the United States maintains formal consular
relations. The traditional consular functions are enumerated in article
5 of the Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S.
6820 (1963)("VCCR"). The VCCR sets a standard for immunity that is
similar to that contained in the Agreement (i.e., "official acts"
immunity). VCCR, article 43 provides that "consular officers . . . shall
not be amenable to the jurisdiction of the judicial or administrative
authorities of the receiving State in respect of acts performed in the
exercise of consular functions."

In the consular context, courts have adopted the following analytical
framework. The court first determines whether the performance of a
recognized consular function is implicated in the case. If the alleged
act (in the instant case, xxxx) does implicate the performance of a
legitimate consular function in some way, then the court assesses
whether the particular act at issue was performed in the course and
scope of the exercise of that function. In making this assessment, the
court determines: 1) whether there is a logical nexus between the act
and the consular function, and 2) whether the act can reasonably be
considered part of the course of action appropriate to the performance
of the function. It is also important to recognize, however, that a
consular or TECRO employee's acts may be inconsistent with local penal
law but still warrant a finding of jurisdictional immunity.

We attach for your information copies of two submissions that the United
States has previously filed in cases involving consular immunity. These
statements provide further legal analysis of consular immunity and refer
to cases and the negotiating history of the Vienna Convention on
Consular Relations.

I hope you will this information helpful. Please contact us again should
you have further questions.

Sincerely,

Linda Jacobson

Assistant Legal Adviser

#  Diplomatic Law and Litigation

Enclosures:

1.  AIT/TECRO Agreement

2.  United States Brief, [Gerritsen v. Hurtado]{.underline}

3.  United State Brief, [Indiana v. Strom]{.underline}

#