Foreign Relations of the United States, 1947, General; The United Nations, Volume I

L/UNA Files

Memorandum by the Legal Adviser (Gross) to Mr. Charles Fahy of the United States Delegation¹

confidential

[Washington, October 6, 1947.]

As suggested in the second paragraph of your memorandum,² I would appreciate it very much if you would draft the exchange of notes to bring the Headquarters Agreement itself into effect as well as the exchange of notes which would make it applicable to the temporary headquarters.

As regards the implementation of Section 15 of the Headquarters Agreement, with respect to the temporary headquarters, I would like to suggest the following:

(a) I assume you will consider the desirability of consulting the representatives of the City and State of New York who were concerned with the negotiation of the Agreement as well as the local officials at Lake Success.

(b) As regards the three alternatives which you mention for determining who is to receive full diplomatic status:

(1) I agree that the first alternative—insisting on separate agreements with each of the delegation[s]—is undesirable with respect to the provisional arrangements applicable to the temporary headquarters.

(2) Your second alternative—inclusion of all officers of missions:—would seem too generous, at least for the start of negotiations, although I would see no serious objection to receding to it if, in your judgment, this seems desirable in the course of negotiations. It is my understanding that this would not place missions to the United Nations on the same footing as missions to the United States, since diplomatic status for the latter includes clerical and other personnel as well as “officers”.

(3) I agree that a position between the extremes of the first and second alternatives is the best to take at the outset, but I would suggest that you consider modifying your third alternative so as to base it purely on rank rather than on a combination of rank and number. It seems to me that the imposition of maximum numerical limitations has the following disadvantages:

(i) It would be difficult to agree on any numerical limitations that will not seem arbitrary and unsatisfactory as applied to individual delegations, unless they are so generous as to be almost meaningless. In this connection I note that the numerical limits suggested in your draft would not seem to exclude any of the officers listed in the first part of the delegation list attached to your memorandum except in the cases of Argentina, China and the Philippine Republic, plus the members of the Military Staff Committee if military staffs are not to be separately provided for.

(ii) The limits might be deemed inequitable as regards the five delegations having representatives on the MSC unless separate provision is made for them.

(iii) Objections might also be made by members represented on the Atomic Energy Commission and the Conventional Armaments Commission who do not get any greater allowance than those who are represented only on the ECOSOC or the Trusteeship Council.

(iv) Difficulties of interpretation may apply in the case of those who have diplomatic status independently by reason of being also attached to embassies in Washington.

(v) Embarrassing situations may develop where a member ceases to be represented on one of the Councils but does not wish to make a corresponding reduction in force.

Incidentally, I am advised that much of the pressure for full diplomatic privileges has been manifested at meetings of the Secretaries General of the delegations. For this reason, it might be expedient to make sure that whatever definition is adopted would include them. The Protocol Division has some question about the term “Second Secretary of Legation or its equivalent”. It is suggested that in lieu of the language “of the staffs of principal resident representatives to the United Nations, if they have at least the rank of a Second Secretary of Legation, or its equivalent” the following language might be used “of the staffs of principal resident representatives to the United Nations holding positions of trust and responsibility as officers of their respective governments”.

It is further suggested that after the words the following language be included in the Agreement as a protection to the United States:

“The Government of the United States reserves the right to decline to extend diplomatic privileges and immunities to any individual who does not, in its opinion, meet with the foregoing qualifications”.

(c) I would also suggest revising the clause beginning “without prejudicing its freedom” to read somewhat as follows:

“… on a provisional basis and without prejudicing the rights of the United States, or of any member of the United Nations, in respect of the negotiation of definitive agreements between, the Secretary General, the Government of the United States and the governments of such members, as contemplated under Section 15(2) of the Headquarters Agreement”.³

The purpose of this change is to make clear that the Secretary General, in agreeing to the proposed classification, would not be prejudicing the rights of the members to claim a broader classification when the tripartite agreements contemplated by Section 15 are negotiated and thus to relieve him of the necessity of getting the individual concurrences of the affected members. There is some question in my mind whether under the terms of the Agreement it would be possible for the Secretary General and the United States to dispose of the question alone. As far as any unilateral right of the United States to withdraw the privileges is concerned, I should think this would be adequately covered by the words “subject to corresponding conditions and obligations” in Section 15 and by the deportation provisions of Section 13(b).

You may also wish to consider clarifying the language with respect to:

(1) Status of families and domestic servants. Mr. Stokes says that, according to his recollection, the minutes of the negotiations which he believes Mr. Marcy has with him in New York will show that it was contemplated that families should be included and that domestic servants were either to be excluded or their status was left in doubt.

(2) Statics of the United States Mission. I assume that we do not want diplomatic privileges for the members of our mission. This raises the question whether they should be expressly excluded in the Agreement or whether the United States should merely file with the SYG a general waiver of immunity as applied to members of the United States Mission. I would be glad to leave this to your discretion.

I attach, for your consideration, a redraft embodying the suggestions made in this memorandum.

[Attachment]

Draft

In order to implement Section 15(2) of the Headquarters Agreement, the United States Government, on a provisional basis and without prejudicing the rights of the United States, or of any member of the United Nations, in respect of the negotiation of definitive agreements between the Secretary General, the Government of the United States and the governments of such members, as contemplated under Section 15 of the Headquarters Agreement, will extend to resident members of the staffs of principal resident representatives to the United Nations holding positions of trust and responsibility as officers of their respective governments, the same privileges and immunities, subject to corresponding conditions and obligations, as it [the United States] accords to diplomatic envoys accredited to it.

The United Nations agrees that it will, in consultation with the United States, make arrangements for keeping the United States currently informed of the names of the individuals entitled to such status.

The Government of the United States reserves the right to decline to extend diplomatic privileges and immunities to any individual who does not, in its opinion, meet with the foregoing qualifications.

1. This text is based on a draft which, although dated September 29, apparently incorporated revisions in drafting effected during October 1–6.
2. Mr. Fahy’s memorandum of September 22 is printed supra.
3. Omission indicated in the original memorandum.