Foreign Relations of the United States, 1949, The United Nations; The Western Hemisphere, Volume II

L/UNA Files¹

Memorandum by Mr. Louis Henkin of the International Staff²

[Washington,] January 10, 1949.

Subject: Acceptance by the United States of the United Nations Laissez-Passer as a Valid Travel Document.

Background:

Article VII (Section 24) of the General Convention on Privileges and Immunities authorizes the United Nations to issue Laissez-Passer to its officials, and provides that “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 General Convention was first presented to Congress (along with the Headquarters Agreement) the Department assured Congress that:

“this language does not authorize or require the UN or any member state to issue or accept a document which is a substitute for a passport or other documentation of nationality. It provided only for a certificate attesting to the UN affiliation of the bearer in respect to travel and will be accepted by the United States as such a document. Article VII, in other words, would not amend or modify existing provisions of law with respect to the requirement or issuance of passports or other documents evidencing nationality of citizens or aliens.” (Senate Report 559, 80th Congress, 1st Session, Page 7.)

To make this point perfectly clear, the Senate Foreign Relations Committee approved an amendment to S.J. 136, the legislation providing for United States accession to the Convention, adding the following paragraph:

“Nothing in Article VII of the said convention with respect to laissez-passer shall be construed as in any way amending or modifying the existing or future provisions of the US law with respect to the requirement or issuance of passports or other documents evidencing nationality of citizens or aliens, or the requirement that aliens visiting the US obtain visas.”

This provision was retained in H.R. 6802, the Omnibus Bill prepared and reported out by the House Foreign Affairs Committee at the end of the Second Session of the 80th Congress.

This interpretation by the United States of Article VII and the Senate provision based thereon were a cause of concern to the United Nations. In a letter to the Legal Adviser, Dr. Ivan Kerno, Assistant Secretary-General in Charge of Legal Affairs, noted the following:

“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.”

The matter was also considered by the Sixth Committee of the General Assembly. The report of this Committee also placed on the Laissez-Passer provisions of Article VII an interpretation different from that of the United States Government. The Committee accordingly expressed that hope that “further discussions on this point between the Secretary-General and the appropriate authorities 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.” The position and recommendation of the Sixth Committee were incorporated in the annual report of the Secretary-General for the year ending June 30, 1948.

Problem:

The views expressed to Congress by the Department in 1947, and the reactions of the United Nations thereto, have been set forth in the letter re-submitting the General Convention on Privileges and Immunities to Congress for action at the 1st Session of the 81st Congress. It may be expected that the Department will have to take a position with regard to the Laissez-Passer either in response to a specific request by Congress or in discussions with Congressional committees. Should the Department recede from its restrictive construction of Article VII and urge the acceptance by the United States of the Laissez-Passer as a travel document equal to a passport?

Discussion:

a. Reasons for Recognition by the United States of the UN Laissez-Passer.

The reasons why the United States should accept the UN Laissez-Passer as a full travel document are numerous and persuasive:

1. In Article 105 of the United Nations Charter, the United States obligated itself to accord to the United Nations such privileges and immunities as are necessary to the fulfillment of its purposes. These privileges are not specified in the Charter, but the General Convention represents, in effect, the views of the General Assembly under Article 105(3) as to certain obligations imposed by Article 105 of the Charter (paragraphs 1 and 2). In effect, then, by including Article VII in the Convention, the General Assembly concluded that the use of the Laissez-Passer is a privilege and facility contemplated by the Charter as necessary to the fulfillment of the Organization’s purposes.

2. It is the policy of the United States to cooperate with the United Nations in every way possible. With regard to the Laissez-Passer, the United Nations is asking merely that its travel document be accorded the same recognition that is given to the travel documents of each of the members of the international community, including even the smallest and youngest of countries. In the absence of strong evidence that it would be inimical to legitimate interests of the United States, our general United States policy of supporting the United Nations would require recognition of the United Nations Laissez-Passer. (As to how accepting the Laissez-Passer might affect United States interests, see Section b below.)

3. The interest of the United Nations in recognition by Member States of its Laissez-Passer is not based on any desire to establish its place as a “sovereign” among the nations of the world. The fact is that in order effectively to carry on its numerous functions over all parts of the globe, it is important that United Nations officials be able to travel, often at very short notice, without the hindrance involved in having to procure a national passport. In several cases, United Nations officials have been unable to obtain a national passport, or have experienced protracted delay before getting one. Experience has also shown the frequency with which emergency travel on official business is required of UN officials, under circumstances which do not offer them an opportunity to get a passport.

Thus, the failure of the United States to recognize the Laissez-Passer has been a source of delay, and of ensuing friction between the United States and the United Nations. There is also an unfortunate flavor and appearance to the national passport in these cases, as though the United Nations had to get the clearance of a particular government before it could send one of its officials on a particular mission.

4. The Charter of the United Nations contemplates an international secretariat of international civil servants, free from the influence and control of their national governments in the performance of their United Nations duties. Such freedom is impossible so long as the individual must periodically turn to his government for a national passport. It is in the interest of the United States that the United Nations have a strong and independent international secretariat whose members need not constantly fear that their actions on behalf of the Organization might bring upon them the wrath of their own government and the refusal or loss of a passport. Recognition of the United Nations Laissez-Passer in lieu of a national passport would enable individuals on the secretariat better to live up to their oath of undivided loyalty to the Organization, and would enable them better to resist pressure by the government of the country whose nationality they bear.

5. The recognition of the Laissez-Passer would mean, inter alia, that American nationals on the secretariat would not be required to have a United States passport to travel on official business of the United Nations. This, too, would frequently prove to be in the interest of the United States. Occasionally, the Department of State does not wish to issue a passport to some member of the United Nations secretariat. Nevertheless, this Government is obligated to permit the individual to travel abroad on United Nations business. (See discussion below, Section b–1.) If it is established as a general policy that such individuals may travel on a United Nations Laissez-Passer, the United States can refuse the individual a passport without creating an incident or causing the Department and the United Nations unnecessary embarrassment, as has unfortunately happened in several instances in the past year. And these cases will therefore not create pressure on the Department to issue a passport, and give the protection and “sponsorship” of the United States Government to an individual whose travel abroad would not be facilitated by the Department in the absence of a United Nations connection.

6. To date, 28 nations have acceded to or ratified the General Convention on Privileges and Immunities of the United Nations. None of these 28 has imposed any reservation or limitation with regard to the Laissez-Passer. These countries are willing to accept United States nationals employed by the United Nations if they present a United Nations Laissez-Passer. They are also willing, in effect, to let their own nationals travel free from their passport control. If the United States refuses to accept the Laissez-Passer, it will, in effect, be compelling these countries to issue passports to their nationals employed by the United Nations.^*

7. While half the countries of the United Nations have not adhered to the General Convention, it may be presumed that many of these countries are awaiting action by the United States and may emulate the United States in any reservations which this country might make. It is important, therefore, that the United States avoid weakening the effectiveness of the General Convention by reservation as to the Laissez-Passer.

b. The Position of the Department in the Past.

Since the Department has in the past taken a position in favor of limitations on the Laissez-Passer, it is important to consider the reasons behind the Department’s earlier view. These involve apparently two sets of considerations corresponding to the two kinds of cases in which the Laissez-Passer might be used:

1. Laissez-Passer for United States Nationals.

With regard to United States nationals employed by the United Nations, recognition of the Laissez-Passer would permit any such individual to travel abroad on United Nations business without obtaining a United States passport. This would, pro tanto, remove such travel from control and regulation by the Department.

Whatever the arguments in favor of such control in general, they do not apply with regard to United States nationals traveling on United Nations business.

By the Charter of the United Nations, a treaty of the United States and therefore the law of the land, the United States agreed that the Organization shall have the privileges necessary for the fulfillment of its purposes, and that officials of the Organization shall enjoy the privileges and immunities necessary for the independent exercise of their functions. The ability of such officials to travel on official business is obviously essential to the fulfillment of the purposes of the Organization within the meaning of Article 105. In an opinion of August 17, 1948, the Legal Adviser of the Department stated that the United States could not, consistent with its obligations under the Charter, refuse to permit the travel of an American national sent abroad by the United Nations. Either the Department must issue him a passport, or it must waive the passport requirement. While the Department might issue a passport valid only for travel to the countries in which his official business takes him, there is no real control over the movements of these individuals.

It must be remembered, moreover, that the regulations which at present forbid an American national from leaving the United States without a passport are merely war-time regulations and obtain at present only because juridically the state of war still exists. There are no permanent provisions in the laws of the United States which regulate or control the travel of American nationals in this manner. Indeed, Congress has in the past refused to confer upon the Department such peace-time control.

There is, then, no permanent peace-time policy in this country which requires a national passport of an American who would travel abroad. On the other hand, in the case of American nationals going abroad on United Nations business, the United States is not only required to permit their travel, but, as indicated above, the interest of the United States would militate against requiring that they obtain passports, and should support the acceptance of the Laissez-Passer. If a particular individual wishes the additional protection of an American passport, there would be nothing to prevent him from applying for one. If he did not desire such a passport, or if the Department saw fit not to issue him one, he would travel on his Laissez-Passer, visaed by the countries to which he would travel. This would also permit the United Nations to send an individual abroad in an emergency without the delay, and without the unfortunate appearance of seeking United States clearance for a United Nations mission, when it seeks a United States passport for its official. It would be a reaffirmation by the United States of its obligations under the Charter to recognize the international status of international civil servants, and not to attempt to control them in the performance of their official duties. There would also be an end to incidents and recriminations such as have occurred in the past year when the Department delayed or was unwilling to issue a passport. And the United States would not have to give its protection and assume responsibility for the action of an individual whose going abroad may not be regarded by the Department as in the interest of the United States.

2. Aliens.

With regard to alien employees of international organizations, the General Convention contemplates that such individuals would not require national passports, but would present their Laissez-Passer for visa. The Visa Division has noted, however, that a national passport issued to an individual in effect commits the issuing government to accept the individual in the event that the United States sees fit to deport him for misconduct, or upon the termination of his right to stay in this country. If the United States agrees to recognize a Laissez-Passer instead of demanding such a passport, there is no longer any assurance that some country will be required to accept the individual in the event of his deportation by the United States.

Examination of this argument reveals that in fact there is nothing in a passport as such which commits the issuing government to accept the individual. The effect attributed to the passport in this regard is based on the fact that a passport is prima facie evidence of nationality, and the additional principle, generally recognized in international law, that a country is required to admit its own nationals. On this analysis, it would appear that what is important is not a passport as such, but some evidence of nationality.

It is relevant to note that it is the official policy of the United Nations to hire only nationals of Member nations. To effectuate this policy, the Organization is compelled to inquire into the nationality of every applicant for employment. The nationality of the individual can be written into the Laissez-Passer. While this would offer only secondary evidence of the individual’s nationality rather than the more direct evidence implied in a national passport, the difference should not be a decisive factor in view of the positive reasons for acceptance of the Laissez-Passer by the United States.

It might also be pointed out that the objection raised by the Visa Division is to a large extent theoretical. In fact, members of the Secretariat may stay on at the headquarters of the United Nations in the United States long after their passport has expired and they no longer have a valid passport. Secondly, in the overwhelming majority of cases, the members of the Secretariat are entirely acceptable to the countries from which they come, and there would be no obstacle to their return. In those cases where the individual has broken with his government, it is still entirely likely that the government will be glad to take him back so that they might do with him what they will. It is in those cases, indeed, that the United States would never in fact seek to deport the individual, as, for example, in the cases of refugees from Czechoslovakia or other eastern European countries. In general, it may be said that the people using the Laissez-Passer would either be able to get a national passport were it required, and, therefore, there would be no obstacle to their return to the country of their nationality or residence; or, they would not be able to get a passport in the first instance, in which case the United States is in any event committed to admitting them without such passport. And these are the cases in which it is extremely unlikely that the United States would wish to deport this individual to the fate that might await him upon his return to his country of origin. It is important to note that there has been no case in which the United States has sought to deport an individual who came here on United Nations business, but has been unable to do so because no country would accept him.

Recommendation:

It is recommended that the Department should accept the United Nations interpretation as to the intended effect of the Laissez-Passer provisions in the General Convention, and should oppose any efforts in Congress to insert, in the legislation providing for accession by the United States to the Convention, any language limiting the effectiveness of the Laissez-Passer as a travel document in lieu of a passport.

1. Files retained by Assistant Legal Adviser for United Nations Affairs.
2. Marginal notation: “Shown to Sandifer.” Durward V. Sandifer was Acting Director of the Office of United Nations Affairs.
3. The 28 nations in question include such countries as France, the United Kingdom, the Netherlands, Belgium, Denmark, Norway and Sweden. It might be noted that insofar as of [sic] eastern Europe countries are concerned, those of their nationals working for international organizations who have not broken with their governments can always get passports without difficulty. [Footnote in the source text.]