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

320/9–2650

Memorandum by the Legal Adviser (Fisher) to the Assistant Secretary of State for United Nations Affairs (Hickerson)

Washington, September 26, 1950.

Subject: Visas for Representatives of Non-Governmental Organizations to Attend Meetings of the General Assembly

In a memorandum dated September 21, 1950, Mr. Sandifer of UNA requested the opinion of this Office concerning the interpretation of Section 11(4) of the Headquarters Agreement between the United States and the United Nations.¹ In a memorandum of September 19, 1949, to Messrs. Sandifer and Boykin,¹ it was formally stated as the opinion of this Office that the “representatives of non-governmental organizations recognized by the United Nations for the purpose of consultation under Article 71 of the Charter” include representatives who are coming for any purpose which is part of consultation as defined by the Council—not merely for consulting with the Economic and Social Council itself but also for consultation with the Council through its committees and commissions, and through attendance at meetings of the Council, its committees and commissions. Subsequent to that time, the Legal Department of the United Nations Secretariat has taken the position that Section 11 (4) also covers representatives of non-governmental organizations for attendance at meetings of the General Assembly.

As Mr. Sandifer’s recent memorandum states, the question has become acute because of at least two current cases involving the exact point in issue. Mr. George Fischer, a representative of the World Federation of Trade Unions, was being held by the immigration authorities on Ellis Island.² The Reverend Michael Scott, a representative of the International League for the Rights of Man, is in London awaiting action on his visa application. There are also several other parallel cases in the offing.

It is the opinion of this Office that under Section 11 (4) of the Headquarters Agreement the United States is obligated to admit representatives of recognized non-governmental organizations only when they are proceeding to the Headquarters District for purposes of consultation with the Economic and Social Council or its Subsidiary bodies; there is no obligation to admit them for attendance at the proceedings of other organs of the United Nations, including the General Assembly. Our reasoning is as follows.

Section 11 of the Headquarters Agreement provides, in part:

“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 of specialized agencies as defined in Article 57, paragraph 2, of the Charter, or the families of such representatives or officials, (2) experts performing missions for the United Nations or for such specialized agencies, (3) representatives of the press, or of radio, film or other information agencies, who have been accredited by the United Nations (or by such a specialized agency) in its discretion after consultation with the United States, (4) representatives of nongovernmental organizations recognized by the United Nations for the purpose of consultation under Article 71 of the Charter, or (5) other persons invited to the headquarters district by the United Nations or by such specialized agency on official business.”

The words that are in issue are the following in subsection (4): “recognized by the United Nations for the purpose of consultation under Article 71 of the Charter”. Due to the phraseology and the lack of punctuation, several interpretations as to the exact meaning intended by the parties are possible.

The United Nations Secretariat is of the opinion that the intent of the drafters would be fulfilled if the words were read as a single limitation upon the words “representatives of non-governmental organizations”. Thus construed, they would then be purely descriptive of what non-governmental organizations would be qualified to send representatives. Once an organization had been designated by the Economic and Social Council under Article 71 of the United Nations Charter, that organization could henceforth send representatives to the Headquarters District without any limitations as to time or as to the purpose of their visit.

It is our opinion that this interpretation does not represent the intent of the parties. It is our definite view that the part of the subsection following the word “organizations” contains two limiting phrases, one designating which organizations were eligible to send representatives and other limiting the purposes for which, these representatives could come to the Headquarters District. Thus construed, it would be no violation of the rules of legislative construction to paraphrase Section 11(4) as follows: “The … authorities … shall not impose any impediments to transit to or from the headquarters district of … (4) representatives of nongovernmental organizations, which are recognized by the United Nations, for the purpose of consultation under Article 71 of the Charter.” It is this meaning which we believe that the parties had in mind when they made the Agreement.

We are led to our conclusion not only by considering the general tenor of the Agreement, but also by closely examining the construction of Section. 11 as a whole and the other subsections contained therein. In the various subsections we discover three different types of elements: (a) a nominative element, such as “representatives of members” or “experts”;.(b) a purely descriptive element which helps define the nominative element, such as “as defined in Article 57, paragraph 2, of the Charter”; and (c) an element limiting time or purpose, such as “performing missions, etc.” in subsection (2). Subsections (1) and (3), covering representatives of Members or officials of the United Nations and representatives of the press, etc., do not contain the third element. This is only natural since the persons covered therein are interested in all phases of the work which is done by all of the various organs of the United Nations, and they would be expected to be in attendance at any and all times. Conversely, Subsections (2) and (5) do contain the third element, and the persons described therein are closely limited as to time and purpose of visit. Contrary to the view held by the Secretariat, it is our opinion that only the words “recognized by the United Nations” are used to describe which organizations are eligible to send representatives, and subsection (4) also has the third element, i.e., a limitation of purpose, which is contained in the words “for the purpose of consultation under Article 71 of the Charter”.

The interests of such organizations are limited. In relation to the whole field of United Nations activities, their individual interests are narrow. Collectively, their interests do not come close to covering the whole broad field of United Nations work, but they are generally limited to the social and economic areas. In the Charter, mention of the non-governmental organizations was made only in connection with the chapter dealing with the Economic and Social Council, and that organ was singled out as the one through which they would normally make their influence felt and with which they would consult. It is this normal activity which the Headquarters Agreement was intended to cover. Logic leads us to the conclusion that the representatives of non-governmental organizations are much more analogous to those persons covered in subsections (2) and (5) than to those in subsections (1) and (3) who have unlimited interests. Hence it seems correct to read subsection (4) as though it contained both a descriptive phrase (“recognized by the United Nations”) and a phrase limiting the purpose of their visits.

It should also be noted that if organs of the United Nations, other than the Economic and Social Council and its subsidiary bodies, wish to consult with representatives of non-governmental organizations, they need only invite such representatives and they will be subject to admission under Section 11(5) of the Agreement. Section 11(4) is to provide for the ordinary, rather than the extraordinary, consultation of representatives of non-governmental organizations with the United Nations.

Also, if the Secretariat’s interpretation were permissible, all of the words following the words “United Nations” would appear to be superfluous. It would have been sufficient to say “representatives of non-governmental organizations recognized by the United Nations”, since under the Charter it is the Economic and Social Council which alone is mentioned in regard to the making of arrangements for consultation with non-governmental organizations. If the Secretariat were correct, the drafters probably would have phrased it, “representatives of non-governmental organizations recognized by the Economic and Social Council” and would have omitted any mention of “purpose, etc.” In effect it is our definite conclusion that the parties intended by their words to limit the obligation to visits by representatives of non-governmental organizations to the Headquarters District to consult with the Economic and Social Council and its subsidiary bodies, but not with other organs of the United Nations.

Conceding that their interpretation of the words of Section 11 (4) is very broad, and that our interpretation may be proper, the Secretariat makes a further argument. They maintain that even if one reads the section with a limitation as to purpose therein, as we submit is proper, it is necessary to interpret the intent and the meaning of the words of the limitation itself. They submit that “for the purpose of consultation under Article 71 of the Charter” is the equivalent of “to engage in consultation concerning economic and social matters, in accordance with arrangements made by the Economic and Social Council under Article 71 of the Charter”. The Secretariat further contends that if one examines Article 71 itself, and the arrangements made thereunder, that it will be concluded that the Economic and Social Council not only has the power to make arrangements for the consultation of representatives of non-governmental organizations with organs of the United Nations other than the Council and its subsidiary bodies, but also has exercised such power in the arrange-merits which it has made. We believe that this does violence to the words of Article 71, the position of this Article in the Charter, and the general theory of the division of powers and functions among the various organs of the United Nations.

Article 71 provides as follows:

“The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.”

The words of this Article clearly imply that the Economic and Social Council can make arrangements for its own consultation with non-governmental organizations. There is neither specific mention nor implication that the Council is to arrange for consultation between the non-governmental organizations and any other organ of the United Nations, other than its own subsidiary bodies. Such an implication would belie the whole theory of division of powers and functions. Each organ makes its own arrangements for consultation by itself and its subsidiary bodies with other entities.

The Secretariat maintains that the Economic and Social Council has made arrangements for the consultation of representatives of nongovernmental organizations with the General Assembly, and that the United States, by its vote in favor of such arrangements, acquiesced in such arrangements. It is the opinion of this Office that the Council did not make any such arrangements. It lacked both the power and the intent to make them. However, for the sake of argument, we will briefly examine the consultative arrangements which the Council has made.

New consultative arrangements were established by the Economic and Social Council at its Tenth Session by its Resolution of February 27, 1950 (E.1646). It is necessary to examine this resolution as a whole to see if we can discover any intent on the part of the Council to prejudge the arrangements for consultation which the General Assembly might or might not make with the various non-governmental organizations.

The resolution is prefaced with the following words:

“Considering that consultations between the Council and its subsidiary organs and the non-governmental organization should be developed to the fullest practicable extent,

“Approves the following revised arrangements for consultation:”

The resolution is a long and detailed one and is divided into ten parts. The first nine of these are concerned with the detailed arrangement for consultation by non-governmental organizations with the Economic and Social Council and its numerous subsidiary bodies. There is no reference to consultation with other organs of the United Nations.

The tenth part is entitled “Consultation with the Secretariat”. Since the Secretariat is to service the Council and its subsidiary bodies, it is only natural to expect that certain arrangements between the Secretariat and the representatives of non-governmental organizations would be dealt with in the Council resolution. The first three paragraphs of the tenth part deal with the internal organization of the Secretariat, consultation with officers of the Secretariat, and the preparation of studies by certain non-governmental organizations at the request of the Secretary-General.

The last paragraph provides:

“40. The Secretary-General shall be authorized, within the means at his disposal, to offer to non-governmental organizations in consultative relationship facilities which include:

(a) Prompt and efficient distribution of such documents of the Council and its subsidiary bodies as shall in the judgment of the Secretary-General be appropriate.

(b) Access to the press documentation service at the United Nations Headquarters.

(c) Arrangement of informal discussions on matters of special interest to groups of organizations.

(d) Use of the libraries of the United Nations.

(e) Provision of accommodation for conferences or smaller meetings of consultative organizations on the work of the Economic and Social Council.

(f) Appropriate seating arrangements and facilities for obtaining documents during public meetings of the General Assembly dealing with matters in the economic and social fields.”

There would appear to be nothing explicitly or implicitly in these words to justify a conclusion that it was the intent of the Economic and Social Council to decide with whom the General Assembly should or should not consult.

The words of paragraph 40 are far from strong or compelling. The Secretary-General is “authorized”, not “requested” or “instructed”. He is to act “within the means at his disposal”. He is to “offer” certain “facilities”. According to subsection (f), two such “facilities” are “seating arrangements and facilities for obtaining documents during public meetings of the General Assembly, etc.” The authorization is to the Secretary-General to offer certain facilities under certain implied conditions. The conditions are fulfilled if and when representatives of non-governmental organizations are invited by the General Assembly to attend or consult with the General Assembly. Upon such invitation, certain facilities will be extended by the Secretary-General. There is no authorization here for non-governmental organizations to attend meetings of the General Assembly. There is no authorization to the Secretary-General to extend such invitations on the part of the Economic and Social Council.

Certain non-governmental organizations have permanent representatives residing in the United States. These representatives are free to attend the public meetings of the General Assembly. However, attendance at the meetings of the General Assembly and consultation with the General Assembly are entirely different things. All that the Economic and Social Council resolution purports to do is authorize the Secretary-General to arrange seating facilities, etc., for representatives of non-governmental organizations when they attend public meetings of the General Assembly. If the General Assembly wished, that no special facilities be extended to them, its wish would certainly override the Council’s “authorization”. To this extent it can control their attendance. It also has complete control over its own consultation with non-governmental organizations.

Non-governmental organizations which do not have resident representatives in the United States and which desire to send representatives to attend meetings of the General Assembly, as distinguished from the Economic and Social Council and its subsidiary bodies, must be invited by the General Assembly to send representatives to the Headquarters District on official business. The invitation can be for purposes of attendance and/or consultation. Entry into the United States will be granted in accordance with Section 11(5) of the Headquarters Agreement.

We do not believe that it was the intent of the Economic and Social Council to usurp the powers of the General Assembly to deal with whom it pleases and no one else. If, however, such was the intent of the Council, the United States did not understand it as such at the time the resolution was passed, and the United States was and is of the opinion that such an attempt would be an illegal usurpation of power which legally belongs to the General Assembly itself.

In conclusion, it is the definite opinion of this Office that there is nothing in either the Headquarters Agreement, Article 71 of the Charter, or the consultative arrangements made by the Economic and Social Council that obligates the United States to permit entry of representatives of non-governmental organizations into the United States for the purpose of consulting with, or attending the proceedings of, any United Nations organ other than the Economic and Social Council and its subsidiary bodies.

Adrian S. Fisher

1. Not found in Department of State files.
1. Not found in Department of State files.
2. Fischer arrived in New York on September 19 without a valid visa and was deported on September 22. For a later phase of the Fischer case, see extract from minutes of the United States Delegation to the General Assembly October 30, p. 77.