861.20211 Gubitchev, Valentine/3–3049
The Embassy of the Soviet Union to the Department of State
No. 31
The Embassy of the Union of Soviet Socialist Republics, referring to the Aide-Mémoire of the Department of State of March 24, 1949, concerning the arrest by American authorities of the Soviet diplomat V. A. Gubichev, has the honor, by instruction of the Soviet Government, to state the following:
The Soviet Government continues to insist that the actions of the American authorities with regard to the Soviet diplomat, a member of the Secretariat of the United Nations, V. A. Gubiehev, who has the diplomatic rank of Third Secretary, are an indisputable violation of elementary generally recognized norms of international law, which guarantee the personal immunity of persons having diplomatic status.
The arguments adduced by the Department of State in the above-mentioned Aide-Mémoire in support of the allegation that V. A. Gubiehev has lost his diplomatic status are completely unfounded and are based on data which do not correspond to the facts.
It has been asserted in the above-mentioned Aide-Mémoire of the Department of State that “Gubiehev came to the United States in 1946 as a member of the Soviet Delegation to the United Nations”. This assertion is not in accordance with the facts. It must be known to the Department of State that V. A. Gubiehev left for the U.S.A. as a member of the Secretariat of the United Nations with the diplomatic [Page 785] rank of Third Secretary and with an American visa on his diplomatic passport.
The foregoing is corroborated:
- 1.
- By note no. KO–62676 of June 13, 1946 from the Ministry of Foreign Affairs of the U.S.S.R., addressed to the Embassy of the United States at Moscow, in which was requested the issuance of a diplomatic visa and a carte blanche to Valentin Alekseevich Gubichev, Third Secretary, a member of the Secretariat of the United Nations.
- 2.
- By V. A. Gubichev’s diplomatic passport no. 12032 issued June 10, 1946 by the Ministry of Foreign Affairs of the U.S.S.R., on which it was indicated that V. A. Gubichev is a member of the Secretariat of the United Nations and has the rank of Third Secretary.
- 3.
- By diplomatic visa no. 202, affixed to the said diplomatic passport of V. A. Gubichev on June 24, 1946 by the Embassy of the U.S.A. at Moscow.
It is stated in the above-mentioned Aide-Mémoire of the Department of State that V. A. Gubichev had been granted a diplomatic visa because at that time he was coming to the United States as Third Secretary of the Soviet Delegation to the United Nations. The above-mentioned documents refute this assertion also, in as much as it can be seen from these documents that V. A. Gubichev was coming to the United States as a member of the Secretariat of the United Nations and in that capacity he received a diplomatic visa for entry into the U.S.A.
The Department of State asserts further in the said Aide-Mémoire that “Gubichev’s visa was valid for a period of one year. After coming to the United States, Gubichev did not seek or obtain an extension of his visa”. However, the diplomatic visa affixed to the diplomatic passport of V. A. Gubichev by the Embassy of the U.S.A. at Moscow does not specify any period of stay in the United States or the necessity of an extension of this visa. Furthermore, none of the other Soviet diplomats in the United States has hitherto been obligated by the American authorities to extend the American visas affixed to their passports. Therefore, the above-mentioned assertion of the Department of State that V. A. Gubichev’s visa was valid for one year can only mean that V. A. Gubichev could enter the United States within a year from the date of issuance to him of the visa, which, however, has no bearing on the question raised by the Department of State in the above-mentioned Aide-Mémoire concerning the period of validity of the visa in the territory of the U.S.A.
The said position of the Department of State is the more unfounded because it is stated on the stamp which was affixed by the immigration inspector to V. A. Gubichev’s diplomatic passport upon his arrival in New York in July 1946 that he “is admitted to New York on July 20, 1946 in accordance with paragraph 7, article 3 of the Immigration Act of 1924 for the period his status is maintained”. It is evident from [Page 786] the documents adduced above that V. A. Gubichev’s status has not changed.
It should be added that the period of validity of a visa only limits the period of entry into a country but has no bearing on the period of residence in that country. This is also corroborated by corresponding regulations of the U.S.A. For instance, in Supplement Two of Immigration Laws and Regulations published by the Immigration and Naturalization Service of the Department of Justice, page 108, paragraph 60.3, article (a) it is stated “that the 12-month period of the visa’s validity concerns entry into the U.S.A. and territory under the jurisdiction of the United States”.*
In the light of the foregoing, the reference contained in the Aide-Mémoire to V. A. Gubichev’s failure to extend his visa during his stay in the U.S.A. is irrelevant.
In the said Aide-Mémoire of the Department of State it is asserted: “When Mr. Gubichev became an official of the United Nations in this manner, he ceased to be a member of the Soviet Delegation and therefore could not be entitled to diplomatic immunities in the United States by virtue of any official relations to the Soviet Government”.
This assertion of the Department of State is also lacking in any foundation because, in accordance with the generally recognized norms of international law and in accordance with the law of the U.S.A. of December 29, 1945, article 7, paragraph (b), officials or employees of international organizations shall be immune from suit and legal process except insofar as such immunity may be waived by the foreign government or international organization concerned,† which was not the case in regard to V. A. Gubichev.
Moreover, the aforementioned documents prove undeniably that V. A. Gubichev left for the United States as a member of the Secretariat of the United Nations and that no changes occurred in his position during all the time of his stay in the U.S.A. up to his arrest.
At any rate, the question of diplomatic immunity guaranteed to V. A. Gubichev as a Soviet diplomat by the fact of the issuance of an [Page 787] American diplomatic visa on his diplomatic passport was not raised by the Department of State before Gubichev’s arrest.
The references contained in the aforesaid Aide-Mémoire of the Department of State to article 100 of the United Nations Charter and to V. A. Gubichev’s “dual status” invented by the Department of State have no bearing on this case, in as much as the said article only defines the duties of members of the Secretariat of the United Nations, which does not affect Gubichev’s diplomatic status as recognized by the Department of State by the fact of the issuance of a diplomatic visa to him.
In view of the above, the statement contained in the aforementioned Aide-Mémoire of the Department of State to the effect that Gubichev cannot at the same time that he is an official of the United Nations Secretariat enjoy a diplomatic status is unfounded.
As for V. A. Gubichev’s duties with respect to the United Nations according to article 100 of the United Nations Charter, this question relates exclusively to the jurisdiction of the United Nations. Gubichev’s duties with respect to the United Nations do not in the least affect his diplomatic status, recognized from the very beginning by official agencies of the U.S.A.
The actions of the American authorities in regard to Gubichev are illegal and represent an unprecedented violation of generally recognized norms of international law.
In view of the foregoing, the Soviet Government insists on the immediate release of V. A. Gubichev, whose right to diplomatic immunity is indisputable.1
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Translator’s note:
The full text of article (a) in the English original reads as follows: “A regular diplomatic visa, which, provided the passport to which it is affixed remains valid and provided the status of the holder does not change, will be valid for a period of 12 months during which time the holder may make any number of applications for entry into the United States and territory under the jurisdiction of the United States”. (TC) [Footnote in the source text.]
↩ -
Translator’s note:
The full text of paragraph (b) in the English original reads as follows: “Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned”. (United States code, 1946 edition, Titles 16–26, page 2296, paragraph 288 (b). /TC/.[)] [Footnote in the source text.]
↩ - The Embassy of the Soviet Union sent its note No. 43 dated April 15 to the Department of State requesting that an answer to note No. 31 be expedited.↩