501.AC/1–349
The Acting Secretary of State to the Speaker of the House of Representatives (Rayburn)
My Dear Mr. Speaker: There is transmitted herewith a copy of the Convention on Privileges and Immunities of the United Nations which was approved by the General Assembly by a resolution, adopted on February 13, 1946, proposing the Convention for accession by each Member of the United Nations.2 This agreement is designed to implement [Page 39] Articles 104 and 105 of the Charter of the United Nations3 which read as follows:
Article 104:
“The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.”
Article 105:
“1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.
“2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.
“3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.”
The Convention is submitted to you with the request that the Congress give consideration to the passage of a joint resolution authorizing the President to accede to it on behalf of the United States. A draft of a proposed joint resolution is enclosed. This draft is identical, except for the first part of the preamble thereof, to that submitted by the Department of State to the 80th Congress.
Various references to the General Convention appear in the Headquarters Agreement between the United States and the United Nations,4 approved by the 80th Congress in Public Law 357. The Headquarters Agreement is a bilateral agreement between the United States and the United Nations and refers only to matters arising out of the special relationship of the United States as host to the United Nations. The privileges of the General Convention are general, applicable equally to all Members of the United Nations, and will confer privileges and immunities without relation to the fact that the United Nations headquarters is in this country. In connection with the relationship between the General Convention and the Headquarters Agreement, it is pointed out that Section 26 of the Agreement provides as follows:
“The provisions of this agreement shall be complementary to the provisions of the General Convention. In so far as any provision of this agreement and any provisions of the General Convention relate to the same subject matter, the two provisions shall, wherever possible, be treated as complementary, so that both provisions shall be applicable [Page 40] and neither shall narrow the effect of the other; but in any case of absolute conflict, the provisions of this agreement shall prevail.”
Since our acceptance of this Convention will give effect to Articles 104 and 105 of the Charter of the United Nations, the Department of State believes that the Convention should be submitted to Congress for its approval by joint resolution.
The Convention gives certain privileges and immunities to the United Nations, as an organization, to its officials, and to representatives of Member states to the various organs of the United Nations. Many of the privileges and immunities for which provision is made in the Convention have already been conferred upon the United Nations by virtue of the provisions of the International Organizations Immunities Act, approved December 29, 1945 (Public Law 291, 79th Congress, 1st Session5). In some respects, however, the Convention on the Privileges and Immunities of the United Nations goes beyond the terms of the International Organizations Immunities Act. Thus, for example, there is provision in Section 19 of the Convention for giving the Secretary-General and all Assistant Secretaries-General of the United Nations, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law. There is provision in Section 22 of the Convention for extending certain limited privileges and immunities to experts on missions for the United Nations. In other respects, on the other hand, the Convention may be less liberal than the provisions of the International Organizations Immunities Act. For example, Section 11(f) and (g) of the Convention limit the free entry privilege to “personal baggage”, a term which is narrower in scope than the term “baggage and effects”, as used in Sec. 3 of the Act. The International Organizations Immunities Act was designed to cover all international organizations. The Convention meets the special needs of the United Nations and reflects also the additional experience of the Organization and the problems it has encountered. The effect of approval of the enclosed draft resolution will be to supplement or replace certain provisions of the International Organizations Immunities Act, and the draft joint resolution provides that in the case of absolute conflict the provisions of the Convention shall prevail.
At the meeting of the General Assembly of the United Nations in February, 1946, the United States Delegation voted for the General Assembly resolution opening the Convention on Privileges and Immunities for accession by each Member of the United Nations. At that time Senator Vandenberg reserved the position of the United States [Page 41] with respect to provisions in the Convention regarding tax immunities and regarding national service exemptions in these words:
“I rise only to make the position of the delegation of the United States perfectly plain in regard to the reports of the fifth and sixth Committees. We have reserved our position in respect of tax immunities in regard to the reports of both Committees. The Constitution of the United States gives the American Congress sole power to exempt American citizens from taxation. The distinguished delegate of the United Kingdom made a very interesting and moving appeal in respect of rival allegiances, and suggested that a man cannot serve two masters. Quite in the spirit in which the able delegate of the United Kingdom spoke, the delegation of the United States does not propose to serve two masters. Its master is the Constitution of the United States. This does not, however, mean that the attitude of the Government of the United States is not totally at one with a cooperative attitude, and wholly hospitable in regard to all cooperation which we, as the host country, shall undertake to give to this great institution when it goes upon its way. Indeed, even so far as privileges and immunities are concerned, I am very happy to say that the last session of the American Congress has already passed a statute which includes, I should say, about 95 percent of the things which the report and the general convention from the sixth Committee anticipate.
“The delegation of the United States also reserves its position in respect of national service exemptions under the general convention reported by the sixth Committee. This again is due to the fact that the Constitution of the United States permits no authority other than the American Congress to deal with this matter, and we are not in a position to prejudge that ultimate consideration.
“With these exceptions, we have been very happy to accept the balance of the report of the fifth Committee, and we are very glad to vote, with these reservations, for the general convention.
“So far as the special convention is concerned, we shall abstain from voting, because the special convention is one to which the Government of the United States will be a party, and we consider it would be inappropriate for us to prejudge the case here. [This reference is to the Headquarters Agreement, subsequently approved in Public Law 357, 80th Congress.]6
“In this entire attitude, I want to repeat that the purpose and the intention, and heartfelt desire, not only of the delegation of the United States, but of the American people, I am sure I speak with complete justification, is to extend every consideration, and to give every possible cooperation, to the United Nations Organization as it proceeds upon the greatest and most hopeful adventure in the history of human kind.”
With respect to the question of income tax immunity for officials of the United Nations, I wish to point out that Section 118(h) (1) of the Internal Revenue Code, as amended, exempts alien employees of public international organizations from the payment of a Federal [Page 42] tax on income received from such international organizations. United States nationals employed by international organizations, however, are subject to the Federal tax on income received from the United Nations. Section 18(b) of the enclosed Convention would extend this tax exemption now granted alien officials of the United Nations. It would also grant immunity from state income taxes on such income both for aliens and United States citizens.
The General Assembly has considered whether or not officials of international organizations, regardless of their nationality and place of residence, should be exempt from national taxation. The Assembly concluded at its first session in London that “there is no alternative to the proposition that exemption from national taxation for salaries and allowances paid by the Organization is indispensable to the achievement of equity among its Members and equality among its personnel”. This proposition was accepted unanimously, the United States Delegation abstaining. The Convention submitted herewith was also approved unanimously by the General Assembly, although the United States Delegation reserved its position with respect to the question of tax immunity as noted above.
When the Convention was submitted to the 80th Congress7 for approval, the Senate inserted in the legislation (S. J. Res. 136) a reservation with regard to the taxation of United States nationals. The reason for the Senate action, as stated in the report of the Committee on Foreign Relations (Report No. 559, 80th Congress, page 6) was that “the Committee considered it undesirable to create within the United States a group of nationals not subject to the normal responsibilities of citizenship”. H. R. 6802, however, as reported out by the House Foreign Affairs Committee, did not contain this reservation. This action by the House Committee was based on new developments with regard to this matter set forth on pages 16–18 of House Report No. 2291, 80th Congress. Briefly stated, the United Nations, in the light of the reservation by the United States and by Canada, was compelled to reconsider the entire question of national taxation of United Nations officials. Since it appeared that the principal objection of these two governments was to the creation of a class of their own citizens which enjoyed a privileged, tax-free status, the United Nations considered the adoption of a staff contributions plan whereby all employees of the United Nations would pay a tax to the Organization. The rates of this tax, it was proposed, would be somewhat greater than those imposed by tax laws of the United States. In this way, international civil servants would not have privileged status but would pay to the [Page 43] United Nations a tax not unlike that paid by other individuals to their own government, and these individuals would thus be contributing to the United Nations directly, as their fellow citizens in their home countries contribute to the United Nations indirectly through the payment of national taxes.
The United Nations staff contributions plan has now been adopted by the General Assembly at its third regular session in Paris, 1948, with the support of the United States Delegation. The Assembly recognised, however, that success of this plan depended on the agreement of Member governments, with particular reference to those which had indicated a reservation in this regard, not to impose an additional tax on their nationals employed by the United Nations. On November 18, therefore, the Assembly passed the following resolution:
“The General Assembly,
Desiring to achieve both equity among the Member States and equality among members of the staff of the Organization, and
Noting that certain Members have not yet taken the necessary action to that end,
Requests
That Members which have not acceded to the Convention on Privileges and Immunities of the United Nations or which have acceded to it with reservation as to its article 18 (b), take the necessary action, legislative or other to exempt their nationals employed by the United Nations from national income taxation with respect to their salaries and emoluments paid to them by the United Nations, or in any other manner to grant relief for double taxation to such nationals.”
In view of the general policy of the United States to give its full support to the United Nations, it is the opinion of the Department of State that this Government should comply with recommendations of the General Assembly wherever it can do so without prejudice to overriding considerations affecting the vital interests of the United States. For this reason, the Department hopes that the Congress will not insist on a reservation that tax immunity should be inapplicable to United States nationals.
With respect to Section 18(c) of the Convention which would give officials of the United Nations immunity from national service obligations, I believe it would be well for this Government to reserve its position. A provision to that effect is incorporated in the enclosed draft resolution. The Selective Service Act of 1948, and regulations issued by the President pursuant thereto, provide for the exemption of officials of international organizations other than United States nationals and aliens who have declared their intentions of becoming citizens.
[Page 44]Article VII of the Convention authorizes the United Nations to issue a Laissez-Passer to its officials. Section 24 of Article VII provides:
“These Laissez-Passer shall be recognized and accepted as valid travel documents by the authorities of Members, taking into account the provisions of Section 25.”
When the Convention was considered by the Assembly, the United States Delegation made no reservation with regard to this provision. However, in transmitting the Convention to the 80th Congress, the Department of State made the following statement:
“This language does not authorize or require, and is not interpreted by the Department of State as authorizing or requiring the United Nations or any Member state to issue or accept a document which is a substitute for a passport or other documentation of nationality; it provides only for a certificate attesting to the United Nations affiliation of the bearer in respect to travel and will be accepted by the United States as such a document. Thus Article VII, if approved, will not amend or modify existing provisions of law with respect to the requirement or issuance of passports or of other documentation evidencing nationality of citizens or aliens.”
This statement was quoted by the Senate Committee in Report 559, and the Committee also inserted in the legislation this understanding of this provision. When brought to the attention of the United Nations, however, the United Nations, in a letter to the Department of State from the Assistant Secretary-General for Legal Affairs, stated as follows:
“No reservations or restrictive interpretations have been signified to the Secretary-General by any of the Members who up to now have acceded to the Convention and in fact the Laissez-Passer has already been utilized by various members of the Secretariat during their travels for the Organization. National visas have been affixed, in several instances, to the Laissez-Passer and the document has been accepted and recognized by the authorities of several States.
“In view of the fact that the Headquarters of the United Nations is established in the United States and that practically all of the United Nations officials return to the United States after their trips, an interpretation by the United States of Article VII of the Convention different from that given to it by the States who have acceded so far to the Convention would affect to the greatest extent the significance and the usefulness of the Laissez-Passer.”
A similar construction of Article VII is also contained in the report of the sixth Committee of the General Assembly, quoted again in the recent report of the Secretary-General for the year ending June 30, 1948. In its report the Committee expressed the hope that
[Page 45]“further discussions on this point between the Secretary-General and the appropriate authority of the United States might lead to a modification of the views of the United States Government as hitherto expressed to the Secretary-General, with the result that the provisions of Article VII relating to the Laissez-Passer should produce the full effects which they were designed to procure.”
Twenty-eight nations have already adhered to the General Convention on Privileges and Immunities, and others, it may be assumed, are awaiting United States action. In view of the special role of the United States as host to the United Nations, and the fact that the General Convention was intended as an agreement complementary to the Headquarters Agreement between the United States and the United Nations which became law in the 80th Congress (Public Law 357), the Department of State believes that approval of the enclosed Convention is a matter of urgency.
A similar letter is being sent to the President pro tempore of the United States Senate.
The Department has been informed by the Bureau of the Budget that there is no objection to the presentation of this proposal to the Congress for its consideration.8
Sincerely yours,
- For text, 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, p. 25.↩
- Signed at San Francisco, June 26, 1945, 59 Stat. (pt. 2) 1031.↩
- Signed at New York, June 26, 1947, 61 Stat. 758. For documentation on its negotiations, see Foreign Relations, 1947, vol. i, pp. 22 ff.↩
- 59 Stat. 669.↩
- Brackets appear in the source text.↩
- For documentation on this phase, see Foreign Relations, 1948, vol. i, pp. 34 ff.↩
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Later in January the Department was informed that Mr. Sol Bloom, Chairman of the Committee on Foreign Affairs of the House of Representatives, did not wish to proceed on this and other Department sponsored legislation without knowing that the new Secretary of State personally approved of certain specific items (memorandum, Carl Marcy, Office of the Counselor, January 27, 1949, 811.032/1–2749). On February 1 Mr. Bloom informed Secretary Acheson in a telephone conversation that he felt the time was inopportune for presenting the Department’s proposed legislation regarding the General Convention, and “that unless the Secretary thought differently it should be held for a while. The Secretary saw no objection to this and thought it proper to take Bloom’s advice.…” (memorandum, Marshall Carter of the Secretary’s Office to Miss Florence Kirlin of the Counselor’s Office, February 1, 1949, 811.032/2–149). In a memorandum to the Secretary the next day from the Counselor of the Department (Bohlen) the reason for the time not being “propitious” is stated (in an attachment) to be “because of Congressional fear that Communists may get into the United States through the UN” (Bohlen memorandum, February 2, 1949, 811.032/2–249). It is not clear whether Mr. Bloom stated it in this way to Secretary Acheson. In his memorandum of February 1 to Miss Kirlin, General Carter questioned whether the Secretary had been sufficiently briefed as to whether the proposals concerning the General Convention were “important legislation” as the Department considered it to be.
This episode seems to have been decisive in the legislative history of the General Convention for 1949, despite occasional hopeful statements made by the Department that the legislation might be enacted. The situation does not seem to have been affected by the death of Mr. Bloom on March 7, 1949, and the accession to the committee chairmanship of Representative John Kee. Neither House of Congress took any action on the General Convention in 1949. The impact of the Gubitchev case on public and Congressional opinion was undoubtedly a factor. Documentation on this matter is scheduled for publication in volume v.
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