Foreign Relations of the United States, 1948, General; the United Nations, Volume I, Part 1

USUN Files

Memorandum by the Deputy Secretary-General of the United States Mission at the United Nations (Power)¹

[New York,] April 19, 1948.

Implementation of Headquarters Agreement in Respect to Diplomatic Privileges and Immunities and Accreditation of Public Information Personnel

The Headquarters Agreement between the United States and the United Nations, which came into force on November 21, 1947, presented novel legal and administrative problems for the United States in providing for the creation in New York of a Diplomatic Corps accredited to an international organization rather than the host country.

As was the case with the League of Nations in Geneva, the Diplomatic Corps at the United Nations is unusual in that there can be no provision for reciprocal treatment for United States officials, which is the usual basis in international comity on privileges and immunities.

The Chatter, in Article 105, provides that representatives of Members of the United Nations should enjoy “such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization”.

In the discussions of this article in San Francisco, there was general agreement that diplomatic privileges and immunities were anachronistic, and that all that was necessary was to provide protection against interference with the official duties of the representatives. It was clearly the intention that diplomatic status should be conferred upon only a small group of permanent Delegates, and that the nature of the privileges and immunities should be narrowly restricted.

However, the permanent Delegations at Headquarters have been most anxious that their privileges and immunities should not be less than those ordinarily granted a Diplomatic Corps. The arrangements for diplomatic privileges and immunities had to await the coming into force of the Headquarters Agreement.

However, the United States had made provision for the limited and essential type of immunity foreseen in the Charter with the passage of Public Law 291, 79th Congress, on December 29, 1945. It provided that representatives of foreign governments to international organizations and members of their immediate families should enjoy the same privileges, exemptions, and immunities as are accorded to officers and employees of foreign governments in respect to regulations concerning entry into and departure from the United States, alien registration and fingerprinting, and the registration of foreign agents, and provided that they shall be immune from suit and legal process relating to acts performed by them in their official capacity except insofar as immunity may be waived by the foreign government concerned.

The Headquarters Agreement, which is enacted as Public Law 857, 80th Congress, provides (Section 15) that every person designated by a member as the principal resident representative to the United Nations with the rank of ambassador or minister plenipotentiary, and such resident Members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned, shall, whether residing inside or outside the Headquarters District, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as are accorded to diplomatic envoys accredited to the United States.

Accordingly, the Department of State has, through the United States Mission, negotiated with the Secretary-General and other Delegations to establish a list of members of Delegations who are entitled to diplomatic privileges and immunities.² The criteria for inclusion on the list have been established without a supplementary formal agreement. The Assembly, in approving the Headquarters Agreement, had suggested to the United States and the Secretary-General that Article 16 of the General Convention on Privileges and Immunities of the United Nations might be used as a guide in deciding which members of the staffs should be included on the diplomatic list. Article 16 of the General Convention defines “representatives” to include all Delegates, Deputy Delegates, Advisers, Technical Experts, and Secretaries of Delegations.

With the General Convention and the provision for equality of treatment with the Diplomatic Corps in Washington as guides, the principle has been accepted that there should be accredited in New York only members of delegations with diplomatic rank or performing professional duties who would be included on the diplomatic list if serving in Washington; that is, persons down through the rank of Third Secretary, or its equivalent. A delegation member to qualify must be regularly resident in New York; not there just for a specific Council or Commission meeting. The list of members of United Nations delegations who are entitled to diplomatic privileges and immunities under the terms of the Headquarters Agreement now comprises 278 officers of 41 permanent delegations.³

Members of the immediate families of diplomatic personnel who are regularly resident with them are also entitled to privileges and immunities. Privileges and immunities are not extended to clerical or administrative members of the delegations, nor to domestics, chauffeurs or other members of the household staff. Such criteria result in a more restricted arrangement than that in Washington. With families, our list includes only 736 persons compared with the list of 1,550 in Washington. The Washington list includes about 750 officers of Embassies and Legations.

In requesting recognition, delegations submit names of their members whom they believe entitled to privileges and immunities to the Secretary-General who certifies their status to the Mission.

Members of delegations who are in New York temporarily, junior officers, other alien employees and their families do, however, enjoy the limited type of privileges and immunities under Public Law 291–79th Congress.

The Headquarters Agreement provides that in the case of member governments which are not recognized by the United States privileges and immunities need be extended to their representatives and staffs only within the Headquarters District, at their residences and offices, and in transit between the district and such residences and offices, and in transit on official business to or from foreign countries.

At present the Byelorussian and Ukranian Delegations, which have recently been established in New York, are the only Delegations of Governments not recognized by the United States. However, the United States has extended to members of those two delegations privileges and immunities identical with those given to other delegations. It has been pointed out to the Secretary-General, however, that this act is a matter which may be revised by the United States, and was taken without prejudice to the right of the United States under the Headquarters Agreement.

Privileges and immunities in respect to federal laws and taxation were quickly established by the Federal government through administrative action. The legal authority for this already existed in the U.S. Code, Title 22, Sections 251–255 so that it was only necessary by administrative action to extend to UN delegations the same provisions applicable to the diplomatic corps in Washington.

The Headquarters Agreement, having treaty force under an Advisory Opinion of the Acting Attorney General, dated August 20, 1946,⁴ is binding upon states and municipalities. It provides that the Federal Government will make the administrative arrangements with state and local authorities. Accordingly, the United States Mission has negotiated with New York State and local authorities. In all cases, it has been found that no new legislation was needed and that on the basis of opinions by the appropriate counsel that the question of privileges and immunities could be handled administratively. The Attorney General of the State of New York ruled on March 1, 1948, that New York should accord privileges and immunities from arrest and conviction for crimes and traffic infractions to members of delegations listed by the Department of State as entitled to diplomatic privileges and immunities under Public Law 357–80th Congress. The New York State Department of Taxation rendered a similar opinion in respect to taxation on February 10, 1948. The State of New Jersey Department of Taxation and Finance found similarly in respect to New Jersey State taxes on March 17, 1948. The Corporation Counsel of New York City made a similar ruling regarding city taxes as reported in a letter from the Deputy Mayor on March 22, 1948.

Members of delegations enjoying privileges and immunities are immune from all legal process, including traffic violations. In the event that they become involved in such process, the Head or Chargé d’Affaires of the delegation notifies the Mission. The Mission thereupon notifies the appropriate judicial authority of the status of the delegation member and arranges that the legal process be dropped.

In respect to summonses for traffic violations, arrangements have been made with the City, County and State Police to forestall the issuance of summonses, thereby making unnecessary an appeal to the Courts. However, a record of the incident is made and forwarded to the United Nations and the Mission. In case of flagrant violations of laws, the United States would take steps, in conjunction with the Secretary-General to declare the individual persona non grata and, if necessary, request his recall.

Delegation members are, of course, expected to observe all laws and regulations. We have specifically pointed out to them that New York State requires automobile operators to carry insurance against accidents involving personal injury since there was a lack of understanding of this regulation.

Members of Delegations are exempt from Federal personal income taxes on income received as salary from foreign Governments; all customs and import duties; the 20 per cent retail excise taxes on jewelry, furs, cosmetics, and luggage; taxes on telephone, telegraph, and cable charges, and transportation taxes. Exemption from manufacturers’ excise taxes is possible only if the article is bought directly from the manufacturer.

We have also arranged exemption from the New York State income tax, gasoline tax, liquor taxes and fees on imports, auto registration and license fees; the City Sales Tax and the Hotel occupancy tax; and New Jersey liquor taxes.

To secure exemption on each transaction, the buyer must file an exemption form, except in the case of liquor imports, with the merchant. Appropriate forms have been worked out in numerous conferences with the Bureau of Internal Revenue, New York and New Jersey State, and New York City authorities.

In order that merchants would understand the system and that it would function smoothly, we have explained it to many retail trade associations, individual stores, petroleum distributing companies and others. We distribute our monthly diplomatic list to several hundred merchants as well as to federal, state and local officials.

1. The USUN Files contain documentation in depth on the information described in this memorandum, in the central subject file at the Mission itself, particularly under the following headings: “IO: Privileges & Immunities: Correspondents”, “IO: Privileges & Immunities: Delegations”, and “IO: Privileges & Immunities: Headquarters”. This memorandum is in the first named subject-file.
2. There is a relevant documentation in the USUN Files on this phase of discussion between the Mission and the Department of State on what should be the criteria for establishing the United Nations diplomatic list, during which Ambassador Austin communicated with the Department’s Chief of Protocol, Stanley Woodward. There is a very sparse documentation on this matter in the Department of State’s central indexed file 501.AC.
3. In a formal identic note sent on February 5, 1948 Ambassador Austin informed 32 permanent delegations to the United Nations of the United States action in formally establishing a list of resident representatives at the United Nations and certain members of their staffs whom the United States recognized “as entitled in the territory of the United States to the privileges and immunities of a diplomatic envoy under the terms of the Headquarters Agreement, Section 15.…” The persons involved (211) were informed individually by letter by Ambassador Austin on February 17, 1948 of United States recognition of their diplomatic status under the Headquarters Agreement. This letter of recognition was accorded to all persons “who were recognized by the U.S. as entitled to diplomatic privileges and immunities and for whom the Mission had received full information as respects functions, families, home addresses, and photographs.” (Memorandum for files, by USUN Deputy Secretary-General Power, February 17) Diplomatic privileges and immunities were extended also by the United States “to the members of the families of persons so recognized who are regularly resident with them” but did not extend to domestics or other members of the household staff (Austin letter, February 17). (USUN Files)
4. See bracketed note, Foreign Relations, 1946, vol. i, p. 97. For text of the opinion, see letter from Attorney General McGranery to the Secretary of State, August 20, 1946, Department of State Bulletin, December 8, 1946, pp. 1068–1070.