Foreign Relations of the United States, 1950, The United Nations; The Western Hemisphere, Volume II

Legal Adviser’s Files: Opinions by the Legal Adviser, et al.

Memorandum by the Legal Adviser (Fisher)¹

[Washington,] February 24, 1950.

[Subject:] Visas for Chinese Communist Representatives to the United Nations

FE, UNA and CON have raised the question whether, under the laws of the United States, limited visas may be issued to the Chinese Communist regime who may be seated by United Nations organs while the United States Government does not recognize that regime.

Section 11 of the Headquarters Agreement between the United Nations and the United States, approved by Joint Resolution of August 4, 1947,² provides in part as follows:

“The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations, … or the families of such representatives or officials,”

and Section 12 of the Agreement provides that:

“The provisions of Section 11 shall be applicable irrespective of the relations existing between the governments of the persons referred to in that section and the Government of the United States.”

These are the only provisions of the agreement pertinent to the above subject. It is thus clear that the obligation of the United States to the United Nations is limited to permitting representatives of Members freely to go to and from the headquarters district, that this obligation is to unrecognized (by the United States) as well as to recognized governments, and conversely that the United States has no obligation to allow such representatives to travel in the United States generally.

It is urged, however, that although the United States admittedly has no obligation under the Headquarters Agreement to allow representatives of Members of the United Nations access to all parts of the United States, that, nevertheless, the United States has unilaterally bound itself to permit such representatives free access to all parts of the United States if, in fact, such access is permitted to officers and employees of foreign governments and members of their families. This contention is based on the provisions of Section 7(a) of the International Organizations Immunities Act³ which read as follows:

“Persons designated by foreign governments to serve as their representatives in or to international organizations … , and members of the immediate families of such representatives, … other than nationals of the United States, shall, in so far as concerns laws regulating entry into and departure from the United States, alien registration and fingerprinting, and the registration of foreign agents, be entitled to the same privileges, exemptions, and immunities as are accorded under similar circumstances to officers and employees, respectively, of foreign governments, and members of their families.”

The International Organizations Immunity Act was approved December 29, 1945.

It has been suggested that the “foreign governments” referred to in Section 7(a) of the Immunities Act must be governments recognized by the United States. In view of the position taken below with respect to other provisions of Section 7(a), it is unnecessary, at least for the present, to decide this point.⁴

The provisions of Section 7(a) are applicable only “insofar as concerns laws regulating entry into and departure from the United States, …”. It may be doubted that conditions imposed upon the duration or place of residence of persons admitted to the United States are “regulating entry”. It is apparent from the provisions of Section 13 of the Headquarters Agreement that Congress regards “laws and regulations in force in the United States regarding the entry of aliens” (Sec. 13(a)) as distinct from “laws and regulations in force in the United States regarding the residence of aliens” (Sec. 13(b)). In any event it is clear from the provisions of Section 7(d) of the Immunities Act that persons given Section 3 (7) visas (representatives of foreign governments to international organizations)⁵ are along with other non-immigrants to be admitted to the U.S. “for such time and under such conditions as may be by regulations prescribed …”. Thus representatives of foreign governments to international organizations receive the same treatment as accorded by law under similar circumstances to officers of foreign governments since the time and conditions under which both may reside here are subject to limitation. No basis is seen for the assumption that the words “as are accorded” in Section 7(a) mean as are accorded in fact. The usual meaning would seem to be as are accorded in law. The duration of stay and the conditions of residence might conceivably be different for officers of different governments. So far as the law is concerned for instance there is nothing to prevent the government from limiting officers of the Soviet government to the Capital area and permitting officers of other governments free access to all parts of the United States. Thus practice would afford no certain standard.

To summarize, under the Headquarters Agreement the United States has no obligation to permit representatives of Members of the United Nations free access to the United States and under Section 7(a) of the International Organizations Immunities Act such representatives have no greater rights than are accorded by law to officers and employees of foreign governments, i.e. their admission to the United States shall be for such time and under such conditions as may be by regulations prescribed.

It is concluded that representatives of the Chinese Communist regime who may be seated by the United Nations need not be issued unlimited visas.

1. Addressed to the Deputy Assistant Secretary of State for Far Eastern Affairs (Merchant) and to the Assistant Secretary of State for United Nations Affairs (Hickerson).
2. Senate Joint Resolution 144 was approved by President Truman on August 4, 1047, as Public Law 357. For text of the joint resolution and text of the Headquarters Agreement, see 61 Stat. 756 or Department of State Treaties and Other International Acts Series (TIAS) No. 1676. Relevant Congressional documentation, 80th Congress, 1st Session, includes Senate Report No. 522, Senate Report No. 559, House (of Representatives) Document No. 376, and House Report No. 1093. For texts of notes exchanged between the United States Representative at the United Nations (Austin) and the Secretary-General of the United Nations (Lie), November 21, 1947, bringing the Headquarters Agreement into effect, see 61 Stat. (pt. 4) 3437 or United Nations Treaty Series, vol. xi, pp. 38 ff. For documentation relating to the negotiation of the above-named instruments, see Foreign Relations, 1947, vol. i, pp. 22 ff.
3. Public Law 291, 79th Congress, 1st Session, was approved on December 29, 1045, and was entitled “An Act to extend certain privileges, exemptions and immunities to international organizations and to the officers and employees thereof.…” (cited as the “International Organizations Immunities Act”); for text, see 59 Stat. 669. For documentation regarding the enactment of this legislation, see Foreign Relations, 1945, vol. i, pp. 1557 ff.
4. In the source text, this paragraph is “scratched” with pencil markings, so as to suggest the intent of eliminating it.
5. Regarding Section 3 (7) visas, see Yingling memorandum, April 19, infra.