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

501.AD/4–2946

Memorandum of Conversation, by Carl M. Marcy of the Division of International Organization Affairs

[Washington,] April 29, 1946.

Participants:	SPA–Mr. Hiss and Mr. Ross
	OA–Messrs. Maktos, Stokes, Halderman Reiff and Marcy

The meeting was held to discuss the draft commentary prepared by OA on the Draft Site Convention. The following matters were discussed:

1. There was discussion as to whether a treaty could be concluded between the United States and the United Nations. It was generally agreed, in line with the conclusion reached by Mr. Halderman in a memorandum on the subject, that such a treaty could be concluded.

2. The question was raised as to whether the substance of the Site Convention should be incorporated in a treaty or in an executive agreement, concluded with the consent of Congress. It was pointed out that the United Nations apparently prefers a treaty. It was felt, however, that there would be many advantages to having the agreement an executive one approved by a joint resolution since that method would bring the House of Representatives into active participation and since supplementary legislation will be necessary. Furthermore, it would be much easier to amend a joint resolution, in the event that is necessary, than to negotiate a new treaty.

3. It was agreed that the comments on the Draft Convention should be revised so as to leave open the question of whether the agreement will be a treaty or an executive agreement.

4. The question was raised as to whether the legal effect of an executive agreement is the same as a treaty. This question has been examined from a number of points of view, but will need to be reexamined with the site agreement in mind. Thus, it may be necessary in this agreement for the United States to relinquish jurisdiction over United States territory—query whether an executive agreement, with or without state consent, can do this?

5. There was considerable discussion of the extent, if any, to which a state may need to be a party to any agreement between the United States and the United Nations in view of the likelihood that some jurisdiction may be relinquished. It was pointed out that the Constitution requires the federal government to have state consent before the federal government can take jurisdiction over land which it acquires by purchase or by condemnation, and that when the federal government transfers its title to a third party, jurisdiction over the land reverts to the state. The question was raised as to whether this was true in the field of foreign relations, since, under the doctrine of United States v. Curtis-Wright Export Corp., the Supreme Court took the position that in the field of foreign relations the United States can do anything that a sovereign state can do. It was agreed that this question needs further examination.

6. Mr. Stokes outlined the inter- and intra-departmental conversations which have thus far taken place. He pointed out that in connection with the acquisition of land for the Organization, Mr. Flournoy³³ had suggested the possibility of creating a corporation to act for the benefit of the United Nations. It was observed that although the idea, of a corporation might be difficult to “sell” to the United Nations, it presented possibilities which should be kept in mind as the negotiations proceed.³⁴

[Here follows examination of certain sections of the draft, convention.]

33. Richard W. Flournoy, Assistant to the Legal Adviser.

34. During April, May, and June the Department engaged in an intensive study of the legal and constitutional problems pertaining to a site agreement between the United States and the United Nations which would spell out the conditions governing the acquisition and control of the permanent headquarters of the United Nations. Numerous working and position papers were drafted and a draft agreement was drawn to reflect United States thinking. Within the Department this activity tended to center in the Division of International Organization Affairs and in the Office of the Legal Adviser, while outside the Department close liaison was established with the Department of Justice where several papers were formulated on that aspect of the situation involving Federal-State relations. These papers are scattered throughout the Department’s central indexed files, particularly the 501.AD file, and in the IO Files, specifically in series SD/Le/1–SD/HQC/1–, and a 1947 background book entitled “Arrangements Respecting Permanent Headquarters of the United Nations” (hereafter cited as “Background Book”). Appropriate information from these papers and the United States draft of the convention itself were passed on to the United Nations Secretariat in the course of preliminary and informal exchanges in May.

    Exchanges between the Department and the Secretariat resulted in an agreement by May 23 to start formal talks in Washington on June 10.