Foreign Relations of the United States, 1946, General; the United Nations, Volume I

IO Files: USGA/Ia/LeCom./4¹²

United States Delegation¹³ Working Paper

secret

[London,] January 19, 1946.

Privileges and Immunities Pertaining to UNO

Factual Background

Article 104 of the Charter provides that the Organization shall enjoy such legal capacity as it requires for the performance of the functions and the fulfillment of its purposes.

Article 105, paragraphs (1) and (2), provides that the Organization itself as well as its officials and the Representatives of Members shall enjoy such privileges and immunities as are necessary for the performance of their functions.

Article 105, paragraph (3) provides that the General Assembly may make recommendations with a view to determining the details of the applications of paragraphs (1) and (2) of the same article, or may propose conventions to the members of the United Nations for this purpose.

The Preparatory Commission, in its Report (p. 60), recommends “that the General Assembly, at its First Session, should make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of Article 105 of the Charter, or propose conventions to the Members of the United Nations for this purpose[”].

The Preparatory Commission also transmits for the consideration of the General Assembly a Study on privileges and immunities and a draft multipartite convention on the same subject, which might be adhered to by all the members of the Organization.¹⁴

The Study has as its purpose the drawing of attention to the various problems involved.

The Convention undertakes to crystallize the various topics in the form of draft articles. It contains provisions which are not in accord with the existing law of the United States, both as to points of major importance and as to subsidiary details. The major points will be considered subsequently in this paper.

Status of the Draft Convention

There has never been a decision by the Preparatory Commission recommending that the Assembly propose such a general convention. The convention was proposed by Canada in a subcommittee of Committee 5, and was espoused by the United Kingdom. It appeared fairly clear to the United States Delegation that it was intended to be a factor in the question of the site of the Organization, then under debate. Various objections to the draft were made both in the subcommittee and in Committee 5, but it was insisted in reply that it was understood that everything was reserved and that this was merely a working paper.

Policy of the United States

It is therefore not a foregone conclusion that a general convention should be proceeded with. There are three particular reasons why it appears undesirable to do so, at least at this time.

1. It is difficult to know at this time just what is required. The situation varies from country to country, depending on the state of their existing law. The basic quesition still remains open, namely what is the proper method of approach to the problem. This in itself is a complex problem, and it is doubtful whether sufficient time is available at this session to give it the study which it requires. A fortiori, it appears impossible to negotiate the details of a convention at this session, should this course be decided upon.

2. Since any decisions taken on this subject should be consistent with any special agreements arrived at between the Organization and the Government of the United States with respect to the permanent headquarters, and since we consider that the latter negotiations will be carried out in the United States and after the site is selected, the detailed discussion of the general question appears premature at this time.

3. The Office of the Secretary-General has a direct and legitimate interest in this question, since it concerns the status of the Organization and its officials. The legal section of this office is probably in the best position to give this subject the detailed and concentrated study which it requires. Also it is our view that the special agreement on the site will be negotiated, on the side of the Organization, by the Secretary-General.

The United States Delegation should therefore endeavor, first, to have it understood that a general convention is only one of several possible methods of approaching the question, and second, to have the whole question referred to the Secretary-General for study and report.¹⁵

Major Points of Difficulty for the United States Contained in the Draft Convention on Privileges and Immunities Submitted With the Report of the Preparatory Commission (pp. 72–74)

Even though it favors postponing the substantive discussion of these problems, the Delegation of the United States may find itself under the necessity of going on record as to the following major points.

Diplomatic Privileges and Immunities (Articles 5 and 6 of Draft Convention)

We agree that Representatives of Members and officials of the Organization shall enjoy immunity from legal process in respect of things done or omitted to be done in the course of the performance of official duties.

The question is whether Representatives and higher officials should be accorded diplomatic privileges and immunities. This would mean, in effect, immunity from all forms of legal process, civil and criminal, and inviolability of residential premises.

The Charter does not provide diplomatic status for such officials, but only requires that they be accorded such privileges and immunities as are necessary for the independent exercise of their functions. The Committee of the San Francisco Conference which drafted this article of the Charter (Committee IV/2) stated in its report that it considered this standard more “appropriate” than that of “diplomatic” status.

The United States takes the position that diplomatic privileges and immunities are not necessary to the independent exercise of functions in connection with the Organization. This is in line with H. R. 4469, recently enacted into law.¹⁶

The position of diplomatic envoys does not constitute a precedent for the Organization. The concept of diplomatic status derives from that of state sovereignty, and the privileged position of the sovereign. It has developed over a period of centuries, and has thus become sanctified in international law.

The situation with respect to the Organization is different. To concede diplomatic status to its officials and to Representatives of its Members would be to create a new privileged class in an age when the tendency is in the other direction. This tendency is exemplified by the decision of San Francisco, above referred to, and by making equal rights a basic principle of the Charter. Unless action of this kind is found to be necessary to the independent exercise of functions in connection with the Organization it would seem wisest to avoid it.

Diplomatic Status of Representatives of Members (Article 5 of Draft Convention)

If member states desire that their Representatives to UNO have diplomatic status, they may themselves make the necessary arrangements by conferring on them an appropriate title and status vis-à-vis the host state.

If diplomatic status for Representatives is adopted despite our objections, the United States will then have to insist upon a clarification of the categories of officials so affected. (Paragraph 4 of Article 5). In any event it would appear that diplomatic status for delegates and alternate delegates would be sufficient.

Officials of the Organization (Article 6 of Draft Convention)

This article is divided into two parts. Paragraph 2, conferring diplomatic privileges and immunities on the higher officials, has been considered above. Paragraph 1, conferring certain privileges on all officials, is objectionable to the United States in so far as it would exempt American citizens from its own tax and national service legislation (paragraph 1(b) and (c)). It is known that several other countries take the same view.

Freedom from Judicial Process, Requisition and Expropriation (Article 2 (1) and (2) of Draft Convention)

The draft convention provides that the property and assets of the Organization shall enjoy immunity from every form of judicial process, unless waived. The United States law (H.R. 4489) contains a similar provision (sec. 2(b))

The draft convention next provides that the property and assets shall be immune from “search, requisition, confiscation, expropriation and from any other form of seizure”. The United States bill which relates to international organizations generally contained a similar provision in its original form, but the exemptions as to “requisition” and “expropriation” were deleted. The law now provides immunity from search and confiscation. The policy of the United States must therefore be deemed to be in opposition to immunity from requisition and expropriation for international organizations generally as distinguished from the United Nations specifically. (This must be regarded as applying to premises, and not to archives and similar property. There is a confusion of terminology involved, as “inviolability of archives”, to which we agree, undoubtedly means that they are free from requisition or subpoena, while “inviolability of premises” means that the local authorities are to stay off, but not that they are immune from expropriation procedures.)

As to premises in general (i.e., of specialized agencies and branch offices of the United Nations Organization as distinguished from the permanent headquarters of the United Nations, which are to be dealt with in a separate agreement), a good case can be made if it is determined to adhere to the Congressional policy. The right of eminent domain is a basic attribute of sovereignty and exists for the protection of the people of the locality in such matters as health, conflagration, communications, etc. It is not to be conceived that the Organization will have any wish to impede the needs of the local authorities in such matters, nor is it to be supposed that the local government will ever exercise its sovereign rights in these respects as regards property of the Organization. Should it not, therefore, refrain from any attempt to invade the local sovereignty in such a basic matter?

It is to be noted that even if the words “expropriation” and “requisition” are deleted in Article 2(2), there will still exist in Article 2(1) a general immunity from “every form of judicial process”, which applies to property of the Organization. The same situation came about in our own legislation and is apparently not regarded as involving an inconsistency.

United Nations Passports (Article 7 of Draft Convention)

The United States does not favor United Nations passports. Such documents are regarded as superfluous, especially as most delegates will probably wish to carry their own national passports in addition.

Steps are being taken to obtain a policy directive from the Department. If this subject should come up in the meantime, we should reserve our position.¹⁷

12. Master files of the Reference and Documents Section of the Bureau of International Organization Affairs, Department of State.
13. For information regarding the United States Delegation to the first part of the first session of the General Assembly which convened in London on January 10, 1946, see p. 4.
14. United Nations, Report of the Preparatory Commission of the United Nations, pp. 60 ff.
15. The experts of the Delegation had also prepared a draft statement (dated January 19) for use by the United States member on the Sixth Committee in advancing this position. It was contemplated in the statement that a motion would be made requesting the Secretary-General to undertake studies and formulate recommendations on the whole question in the light of privileges and immunities already available. (IO Files, document USGA/Ia/LeCom./3) Whether this view was ever presented is not clear from available records. The subject was referred by the Sixth Committee to a subcommittee on privileges and immunities on January 24 apparently without any discussion, and on January 28 was reported back by the subcommittee in a document which recommended that implementation of Article 105 should proceed with the formulation of a general convention. (United Nations, Official Records of the General Assembly, First Session, First Part, Sixth Committee, pp. 14, 16 and 44–45; hereafter cited as GA(I/1), Sixth Committee.) At the same meeting on January 28 the subcommittee was charged with the drafting of such a general convention.
16. Public Law 291, 79th Congress, 1st Session (December 29, 1945), “An Act To extend certain privileges, exemptions and immunities to international organizations and to the officers and employees thereof. …” (cited as the “International Organizations Immunities Act”), 59 Stat. 669. For documentation regarding the interest of the Department of State in the enactment of this legislation, see Foreign Relations, 1945, vol. i, pp. 1557 ff.
17. See telegram 665, January 19, 11 a.m., infra.