L/UNA Files

Memorandum by the Legal Adviser (Fahy) to the United States Representative at the United Nations (Austin)

confidential

Subject: United Nations Headquarters Agreements

The purpose of this memorandum is to provide a brief survey of the situation as it now stands. More elaborate background material and documentation are contained in the book entitled “Arrangements Respecting Permanent Headquarters of the United Nations”1 which was prepared for you as part of the documentation for the second part of the first session of the General Assembly.

Status of Negotiations

At the first part of the first session, the General Assembly passed on February 13, 1946, a resolution authorizing the Secretary-General (with the assistance of a committee composed of persons appointed by ten member governments) to negotiate the appropriate arrangements between the United Nations and the United States. The General Assembly submitted a “Draft Convention” to the Secretary-General for his use in the negotiations as a basis for discussion.

Formal negotiations in June 1946 resulted in the draft of June 20, 1946 which, as indicated in an exchange of letters between Dr. Kerno2 and myself, was to be regarded purely as a working draft.

The official report of the negotiations was published in the attached UN Document A/67, with text of the draft agreement as Annex I and the exchange of letters as Annex II.3

In the course of discussions with Dr. Kerno, the United States took the position that it would prefer to have the arrangements in the form of an executive agreement to be authorized by joint resolution of the Congress rather than by a treaty to be acted on only by the Senate. An opinion from the Acting Attorney General approving the legality of [Page 25] this procedure was obtained under date of August 20, 1946 and was published as Annex III of Document A/67.4

It was originally hoped that the agreement would be negotiated in final form during the fall session of the General Assembly. However, the late date of the decision as to location of the permanent headquarters made this impractical. The General Assembly adopted a resolution on December 14, 1946 authorizing the Secretary-General to negotiate the appropriate agreement and stating that in such negotiations he “shall be guided by the provisions of the draft agreement” of June 20, 1946. It was stipulated that the agreement should not come into force until approved by the General Assembly although the Secretary-General was authorized to make, without further approval, interim arrangements with respect to the temporary headquarters.

Further negotiations were held on February 13 and 14, 1947 with Mr. Feller5 and Dr. Saba6 of the Secretariat and representatives of the City and State of New York as well as the Department of Justice. These negotiations were based on the Department’s revised draft of January 14 (of which a copy is attached)7 together with additional proposals which were submitted informally at the meeting. The negotiations were followed by correspondence and telephone conversations on various points. As a result, there is now tentative agreement8 on all matters except the following:

Remaining Questions To Be Negotiated

(1) Applicability of United States deportation laws to personnel of the United Nations and delegations. This is discussed separately in my memorandum for the Acting Secretary of March 28, of which a copy is attached.9 The Acting Secretary has indicated his approval of the course suggested, except that he apparently does not feel we should [Page 26] confine the matter to deportation activities endangering the public safety.

(2) Status, pending settlement by arbitration, of regulations governing the headquarters which may be adopted by the United Nations but contested by the United States. This is discussed in the same memorandum. The Acting Secretary has indicated that, if we yield on this point, we should do so ad referendum.

(3) Diplomatic privileges for resident representatives of Member Nations. As regards representatives to the United Nations, Section 1510 provides that full diplomatic privileges shall be accorded to principal resident representatives, resident representatives with the rank of ambassador or minister, and such resident members of their staffs as may be agreed upon. As regards representatives to specialized agencies, full privileges are accorded only to principal resident representatives with the rank of ambassador or minister. This is all we thought we agreed to at the last conference in New York, but Dr. Saba of the Secretariat seems to think we agreed that representatives to specialized agencies should be treated the same as those to the United Nations. Unfortunately he has relayed this impression to representatives of the specialized agencies.

Unless we are to make full privileges available to virtually all of the officers of delegations to the United Nations, I believe we should adhere to the present draft with respect to resident representatives to specialized agencies, for they may actually occupy very junior positions in the permanent delegations of their governments.

[Page 27]

Your telegram 360 of April 17 raises the question whether we should grant full diplomatic privileges and immunities to officers of delegations to the United Nations on the same basis as they are granted to officers of diplomatic missions in Washington. At the time of the negotiations last summer, it was our feeling that the creation of a large group enjoying diplomatic privileges in a relatively small community in Westchester or Fairfield County would create a serious public relations problem, since the local citizens would not understand why so many foreigners should be entirely above the law. The representatives of the United Nations appreciated this point of view, which was strongly held also by the representatives of the States of New York and Connecticut. At that time we were also faced with vigorous local opposition to the establishment of the headquarters on any basis.

Now that the headquarters are to be in New York City, the political and public relations aspects may be quite different. The feelings of suburban citizens cannot, of course, be ignored since many of the members of delegation staffs will live in the suburbs. I think, however, that we might consider some extension of the class entitled to full diplomatic privileges. Such an offer might, as you point out, be especially useful from the bargaining point of view in handling the very difficult question of deportation discussed above. As a matter of courtesy we should first consult the New York City and State authorities and perhaps also those of Connecticut and New Jersey where many of the representatives will live.

If we do extend the class entitled to full diplomatic privileges, we should probably be prepared to make some concessions also with respect to delegations to the specialized agencies, which would not involve a very significant number.

Assuming that our provision with respect to deportation is accepted, its applicability to persons enjoying diplomatic privileges is not entirely clear. In the case of diplomats accredited to this Government, diplomatic privileges would seem to involve immunity from deportation laws as well as others, although it is always possible to send diplomats home by declaring them persona non grata. Since representatives to the United Nations or specialized agencies are not accredited to this Government, we cannot technically declare them persona non grata. Section 15 of our proposed draft11 states that the privileges accorded to representatives of member nations by the United States are to be “the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.” The phrase “subject to corresponding conditions and obligations” was the subject of some discussion at our last [Page 28] meeting with representatives of the United Nations.12 So far, they have neither accepted nor rejected it, although Mr. Feller seemed personally inclined to accept it.

On the assumption that full privileges would be confined to the small class contemplated in the present draft, I had thought it best not to raise the question of deportation laws as applied to them. If, however, we are to grant full privileges to all officers on delegation staffs, this problem becomes more important and perhaps we should try to have the minutes of the negotiations show that the quoted phrase permits revocation of privileges for those who abuse them, with the result that they would then become subject to the deportation provision.

(4) Use of broadcasting facilities for other types of communications. There is some disagreement as to the extent to which the United Nations should be allowed to use its own radio facilities for point-to-point communication. Mr. DeWolfe, Chief of the Telecommunications Division, has been handling this directly with the telecommunications officials of the United Nations. I believe we can leave this to be settled by the experts.

(5) Changes in form. Since the negotiations of February, we have prepared a new draft of the agreement which rearranges the order of the sections and makes a number of minor changes in wording. This is the draft of March 20, 1947 which is attached. I do not anticipate any serious objections to this revision which is intended to be one of form only. It is being submitted informally to the Secretariat, the Department of Justice and New York City and State representatives for comment.13

(6) Annexes. Completion of one or more annexes defining certain rights of New York City with respect to public utilities and similar matters can probably be worked out satisfactorily by direct negotiation between the city and United Nations authorities.

Further Steps

The following steps remain to be taken:

(a)
Completion of negotiations on the outstanding questions referred to above. The first three are the only ones which, I believe, will require your personal participation and that of the Secretary-General.
(b)
Signature of the agreement by the Secretary of State and the Secretary-General in the form finally agreed upon.
(c)
Transmission of the agreement as signed to the Congress (after clearance through normal channels of the Bureau of the Budget) together with a draft of joint resolution authorizing the President to put the agreement into effect. The latest draft for such a resolution is attached.14 It is important that the resolution be adopted at the current session.
(d)
Approval of the agreement by the General Assembly at its next regular session.
(e)
Putting the agreement into effect by exchange of letters between the United Nations and the United States.
(f)
Conclusion of interim arrangements with respect to temporary headquarters. The Secretary-General has been authorized to do this by the resolution of last December, and the President would be authorized to do it by the proposed joint resolution. This step could, therefore, be taken any time after passage of the joint resolution.

General Convention

The first part of the first session of the General Assembly, in addition to proposing specific arrangements between the United Nations and the United States, proposed a “Convention on the Privileges and Immunities of the United Nations” (commonly referred to as the “General Convention”15 to distinguish it from the specific agreement with the United States) which was recommended for adherence by all member nations. It is designed to define the privileges and immunities of the United Nations and its personnel in all member nations. Contrary to the wishes of the United States, the General Convention was put in final form before the Headquarters Agreement had been negotiated. As a result there is some overlapping and inconsistency between the two. However, the Headquarters Agreement provides that both shall be given effect wherever possible and that, in case of absolute conflict, the Headquarters Agreement shall prevail.

The United States Delegation expressly reserved its position with respect to the application to United States nationals of the provisions of the General Convention creating immunity from income tax on United Nations salaries and immunity from national service.

It is proposed to submit the General Convention to the Congress for authorization by joint resolution, separately from the Headquarters Agreement although the hearings on the two documents may well be [Page 30] combined. The proposed submission has, for several months, been held up in the Treasury Department, but that Department’s comments as finally received present no serious obstacles, and it is expected that the Convention will be submitted to the Congress in the near future.

Summary of Headquarters Agreement

Attached as a separate document is a brief summary of the latest draft of the Headquarters Agreement.16 This also shows the corresponding section numbers of the draft of June 20 which is the only one that has become an official United Nations document.

  1. See Foreign Relations, 1946, vol. i, footnote 34, p. 81.
  2. Ivan S. Kerno, U.N. Assistant Secretary-General for Legal Affairs.
  3. United Nations Doc. A/67 is not printed in the Foreign Relations series; it may be found in depository libraries of the United Nations.
  4. For text of this opinion, see Department of State Bulletin, December 8, 1946, p. 1068.
  5. Abraham H. Feller, General Counsel and Principal Director, Legal Department, United Nations Secretariat.
  6. Hanna Saba, Director of Division of Privileges and Registration of Treaties, Legal Department, United Nations Secretariat.
  7. Not printed. This draft, with earlier preliminary drafts and accompanying documentation relating thereto, is in L/UNA Files in folder “Headquarters Agreement General—1947.”
  8. Incorporated in a newly revised draft dated March 20, not printed. The draft is found in the source described in the footnote immediately preceding.
  9. Not printed. The relevant section of the memorandum read:

    “2. The Agreement provides in Sections 11 and 13 that personnel of the United Nations, of the delegations of member governments and of the specialized agencies shall have the right of access to the headquarters district without regard to immigration restrictions. The Visa Division has expressed some concern as to this provision, and I agree that this Government should reserve the right to require persons to leave who abuse their special privileges of entry.

    “There have already been two cases where the United Nations has requested visas for appointees to the Secretariat whose records indicate that they might be expected to engage in subversive activities prejudicial to the public safety of the United States. In the first case, the appointment was withdrawn by the Secretary-General at the request of the Acting United States Representative. In the second case a similar request has been made and the Secretary-General has stated that the appointment will be cancelled.

    “The present draft of Section 13 includes a provision that although immigration restrictions may not prevent the entry of official personnel, the United States retains the right to cause such persons to leave the country on account of any activities constituting cause for deportation under United States laws and in which such persons might engage otherwise than in their official capacity. This provision has been rejected by the United Nations, in the attached letter of March 11 [not printed, L/UNA Files] from Dr. Saba, Director of the Division of Privileges and Registration of Treaties, in which he says that he has submitted the matter to the Secretary-General.

    “Dr. Saba proposes, instead, that the Secretary-General write a letter, of which he attaches a draft [not printed, L/UNA Files], to the effect that the Secretary-General will investigate all cases of United Nations personnel about whom the United States complains with a view to applying such administrative penalties as may be required, including, if necessary, dismissal. In my opinion, this would not be a satisfactory arrangement. It would leave the Secretary-General as the sole judge as to whether the privileges of staying in this country should be withdrawn.

    “3. I suggest, if you approve, that I arrange with Senator Austin that he or I, or both of us, see the Secretary-General personally and seek to impress upon him the reasons for our original proposal and the importance which we attach to it. I think we should be prepared to modify it, if necessary, to the extent of making it applicable only to deportation on account of activities endangering the public safety of the United States.”

  10. The substance of section 27 of the drafts of June 20, 1946, and January 14, 1947, are incorporated into section 15 of the March 20 draft.
  11. That is, the March draft.
  12. The qualification “subject to corresponding conditions and obligations” was especially desired by this Government so that persons covered by section 15 would not receive broader privileges and immunities than would diplomatic envoys accredited to the President of the United States, and that such persons, like diplomatic envoys, could be declared personae non gratae and made subject to recall.
  13. The text was sent to the United Nations Secretariat on April 23, via a letter by Charles Fahy, Legal Adviser, to Dr. Kerno, the United Nations Assistant Secretary-General for Legal Affairs, not printed (501.AD/4–2347).
  14. Not attached to file copy.
  15. For texts of the resolution of February 13, 1946 (Resolution 22(1)) and accompanying draft general convention on privileges and immunities of the United Nations, see United Nations, Official Records of the General Assembly, First Session, First Part, Resolutions Adopted by the General Assembly during the First Part of the First Session, pp. 25 ff.
  16. Both the draft and the summary are dated March 20, 1947, neither printed. Both documents are in L/UNA Files, in folder “Headquarters of the UN: Headquarters Agreement General—1947.”