L/UNA Files, “Headquarters Agreement, General, Privileges and Immunities, 1948–1951”

Memorandum by Mr. H. Linde of the Office of the Assistant Legal Adviser for United Nations Affairs 1

Memorandum on Picketing of Foreign Delegations

1.
The specific issue which gives rise to this memorandum is the extent of the obligation, if any, of the United States to protect the New York Headquarters of foreign delegations to the United Nations against disturbance by group demonstrations, specifically against picketing.
2.
The problem has arisen out of complaints by the USSR Mission to the United Nations concerning incidents in front of the Mission’s building at 680 Park Avenue, New York, on June 30, July 7, July 14, July 28, August 2 and August 4, 1951. The facts of these incidents appear as follows:

Undisputed facts: (Sources: Exchange of notes and New York Times)

Picketing of the USSR Mission at the above address was organized by the American-Hungarian Federation to protest against deportation of Hungarians to Russia. The New York police had been informed of the plans to picket the Mission and had apparently indicated no objection thereto but had sent additional personnel to the scene. The first few demonstrations involved no personal violence, although the Mission complained of noise, hostile shouts and damage to Mission limousines. The number of individuals participating in the demonstrations on the different dates seems to have varied from about 20 to 100. On the earlier occasions the Mission directed its objections to Amb. Austin. The present exchange of notes between the Embassy of the USSR and the State Department concerns the incident of August 2.2

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Disputed facts:

As to this incident the two Soviet notes allege that two employees leaving the Mission were subjected to insults and threats from the pickets; that Mr. Polyanski, a First Secretary of the Mission, who followed them, was surrounded, insulted and threatened by about 10 demonstrators, three of whom hit him on the head with sticks, injuring him “in the region of his parietal bone”; that the police did nothing to protect Mr. Polyanski; that immediately after the incident a plainclothes officer, who came to the Mission, asked for—and was given—the name of the injured Russian and stated that the attacker was known to the police.

The Department’s answer, based upon a report of the New York police, states that access to the building was adequately maintained by the police; that “the delay experienced by Mr. Polyanski in reaching his automobile” was due to his effort to force himself through the picket line; that no claim of injury to anyone was made when the plainclothes officer visited the Mission; and that the instructions given the New York police to keep a clear path from the building entrance to the curb constituted adequate measures for the protection of the Delegation.

There was also some disagreement by the Soviet and US notes on proximity of the pickets to the building entrance and whether, and from what date, the police undertook to keep the sidewalk clear.

The New York Times reported the incident of August 2 as follows:

“A Russian was thumped on the back last night by a woman marcher in an American-Hungarian Federation picket line in front of the office of the Soviet Union’s United Nations delegation at 680 Park Avenue. Among the slogans on signs carried by the pickets was ‘Rather hooligans than Communists’.

“The incident occurred during a two-hour demonstration when three Russians came out of the building at 7:15 p. m. and attempted to enter a car parked at the curb. Seven of the 150 pickets crowded the trio, booing, hissing and shouting: ‘Stop the deportations’, ‘Stalin, you dirty dog’,’Gangsters’and’Hooey’.

“Policemen rescued the Russians, two of whom departed in the car while the one who was hit turned back into the building.

“It was the first violence in six demonstrations by the group …”

3. The obligations of the United States towards delegations to the UN Headquarters in New York are governed by the Headquarters Agreement rather than by the customary international law concerning foreign representatives accredited to the United States Government. However, the applicable provision of the Headquarters Agreement, Section 15, entitles delegations to the United Nations “… in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.” By that Agreement United States [Page 63] practice as to ordinary diplomatic privileges and immunities has thus been made the measure of United States obligations towards UN delegations.* With reference to the present problem, then, it is necessary to establish the prior US position on picketing of buildings occupied by “diplomatic envoys accredited to it”.

4. In general expositions of international law, picketing, which in the form familiar in the United States is a fairly recent phenomenon, has received little attention. It is mentioned, if at all, in connection with the security of the person and effects of envoys, or sometimes with the question of the privilege of foreign sovereigns and national ambassadors to be protected from insult and defamation. With the abandonment of common law rules of criminal libel and an increasing respect for freedom of speech, press and other expressions of popular opinion, the latter privilege retains only doubtful validity (but see E. D. Dickinson in 22 AJIL 840); but the former principle is unquestionably recognized. (A representative selection of discussions, with edition citations includes: Oppenheim, 7th Edit., Vol. I, p. 707; Hyde, 2d Edit., Vol. II, pp. 1249, 1252; Hackworth, Vol. IV, p. 511; Harvard Research in International Law, 26 AJIL Supp., p. 90; 31 AJIL 705.)

The Draft Convention on Diplomatic Privileges and Immunities of the Harvard Research, Art. 3(2), provides “A receiving state shall protect the premises occupied or used by a mission, or occupied by a member of a mission, against any invasion or other act tending to disturb the peace or dignity of the mission or of the member of a mission; provided that notification of such occupation or use has been previously given to the receiving state.” (26 AJIL Supp. P. 50) On the specific application of this rule to picketing, the Comment states: “The special duty of protection of premises would include protection against crowds or mobs collected in the vicinity of the premises for the purpose of expressing abuse, contempt or even disapprobation of the sending state or of its mission, or of the members of the mission. A similar duty would seem to exist to protect such premises against so-called ‘picketing,’ this being an act tending to disturb the peace and dignity of the mission.” (P. 56)

5. While this work, published in 1932 gives no authority for its propositions, the other sources quoted above cite as evidence of adoption of this view of picketing a 1937 United States statute which specifically prohibits the picketing of foreign missions in the District of Columbia: “It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party, [Page 64] or organization, or to intimidate, coerce, harass, or bring into public disrepute any officer or officers or diplomatic or consular representatives of any foreign government, or to interfere with the free and safe pursuit of the duties of any diplomatic or consular representatives of any foreign government, within five hundred feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes, except by, and in accordance with, a permit issued by the superintendent of police of the said District; or to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District. (Feb. 15, 1938, 52 Stat. 30, Ch. 29, Title 1.)

“The police court of the District of Columbia shall have jurisdiction of offenses committed in violation of sections 22–1115, 22–1116; and any person convicted of violating any of the provisions of said section shall be punished by a fine not exceeding $100 or by imprisonment not exceeding sixty days, or both: Provided, however, that nothing contained in said section shall be construed to prohibit picketing, as a result of bona fide labor disputes regarding the alteration, repair or construction of either buildings or premises occupied for business purposes, wholly or in part, by representatives of foreign governments.” (Feb. 15, 1938, 52 Stat. 30, Ch. 29, Title 2.) These sections are now in Title 22–1115 and Title 22–1116 of the District of Columbia Code.

It may be argued that this statute, of itself, makes protection from picketing one of the “privileges and immunities which the United States accords to diplomatic envoys accredited to it” and to which the Missions in New York are, therefore, also entitled. On the other hand, the Statute is on its face only a local regulation of the District of Columbia. Consideration of collateral materials is relevant to determine whether and to what extent the Statute represents a recognition in United States practice of international privileges and immunities of foreign envoys.

6. The legislative history and judicial application of the Statute are sparse. There were no hearings before its adoption by Congress, and favorable committee reports in both Houses (S.R. No. 1072, H.R. 1516, 75th Cong., 1st Sess.) consist solely of reprints of a letter by Secretary of State Hull, urging passage for the following reasons:

“If we are to obtain for our representatives in foreign countries that degree of protection to which they are entitled, we should be in a position to show a like consideration for representatives of other governments in this country. Unless we extend such reasonable protection to representatives of other governments, we cannot hope to receive protection for our representatives abroad.

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“It is extremely embarrassing to the Department to be reminded by representatives of foreign governments in the United States that their missions are being interfered with by individuals or groups, particularly when existing domestic law does not seem to cover the situations of which complaint is made. By the comity of nations, representatives of foreign governments in countries where law and order are supposed to prevail are entitled to freedom from any attempted intimidation or coercion.”

During debate on the floor of the Senate, the Statute (then S.J. Res. 191) was in the hands of Senator Pittman. His statements elaborate the objectives stated in Secretary Hull’s letter and indicate that the law was thought to be appropriate in execution of an international obligation toward foreign diplomats; but that the motive for its adoption at that time was the desire, not to live up to international law, but to assure the security from mob demonstrations of Americans abroad (Congress. Record Vol. 81, Pt. 8, pp. 8586 to 8593).

The purposes of the Statute were also considered in sustaining its constitutionality in the only case to bring it to an appellate court, Frend v. United States, 100 F. 2d 691 (CA D.C. 1938), cert. den. 306 US 640. (See separate note on First Amendment protection of the right to picket.) The Court found Congressional power both in the Constitutional provision for the Government of the District of Columbia, Art. 1, Sect, 8, Cl. 17, and in Cl. 10, which authorizes Congress to “define and punish … Offenses against the Law of Nations.” In Judge Groner’s opinion, the Statute is squarely founded in the Law of Nations.

7. There is other evidence that the ban on picketing represents an American view of the rights of foreign representatives in the United States. When the British Embassy was picketed by Irish sympathizers April 2, 1920, an opinion of the Solicitor of the Department of State (by J. R. Baker, 1920 Vol. I, p. 395) concluded that the British Chargé had been insulted “in violation of the Law of Nations” and recommended prosecution under Sect. 4062 R.S., which applied only to assaults in violation of that law. (Now 18 U.S.C. 112)

In 1937 the Secretary of State, in answer to an inquiry from a group proposing to picket the Japanese Embassy, asked them to refrain from doing so; he did not refer to international law (Press Release of August 26, 1937). When in the same year Congress, in response to the increasing practice of picketing Axis Missions here, passed the Statute discussed above, a commentator in the American Journal of International Law welcomed the law as a fulfilment of American obligations under international law. E. C. Stowell: “It is to be regretted that the application of this remedial legislation is limited to the District of Columbia. The responsibility of the Federal Government is as broad as our national jurisdiction. … In an effort to escape [Page 66] responsibility, it will not avail to plead lack of legislative sanction, since Congress might well have enlarged the scope of the anti-picketing resolution.”—Art. I, Sect. 8, C1. 10, of the Constitution. (32 AJIL 344.)

8. It has been pointed out that, in view of the recent development of picketing, it is doubtful that there has developed a rule which obligates a receiving government to prevent picketing as such (Preuss, “Protection of Foreign Diplomatic and Consular Premises against Picketing”, 31 AJIL 705). But, in the absence of such a general rule it may still be concluded that in United States law and practice protection from picketing has been recognized as a privilege to be accorded envoys accredited to this Government. If so, it remains to establish the extent of the privilege for the purpose of its application, under the Headquarters Agreement, to foreign United Nations missions in New York.

9. Suggested Conclusions: On the basis of the foregoing facts and the additional note on constitutionality,3 the following conclusions are suggested:

The Headquarters Agreement does not entitle U. N. Missions in New York to the exact equivalent of the District of Columbia’s anti-picketing statute. As Sec. 15 of the Agreement guarantees missions certain rights, not in New York City, but “in the territory of the United States”, it is reasonable to assume that the section means “the same privileges and immunities … as it accords to diplomatic envoys accredited to it” in the territory of the United States. The anti-picketing statute, of course, only applies in the District of Columbia.

The specific provisions of that statute go beyond the extent of an established United States recognition of an international diplomatic “privilege against picketing”. The evidence examined above, including the statute, nevertheless indicate some such recognition in United States practice. Application of this practice in the present situation requires the development of more particular standards based on considerations of law and policy.

On the one hand, in this country the “right to picket” has won both legal and ideological recognition. The Department should naturally be slow to seek restrictions on a privilege so closely related to our basic democratic premises. In view of the constitutional question, recourse to formal legislation should certainly be avoided.

On the other hand, the privileged position of picketing is a consequence of its function as an agency of public information. The right should be thought of as one of demonstrating the viewpoint of a segment [Page 67] of American public opinion rather than of badgering an “adversary”. Neither law nor policy extends its favors to picketing by unreasonably large numbers or attended by shouting or other noise and the physical annoyance of mission personnel. The constitutionality of narrowly formulated police standards governing the number of pickets permitted in a given area, the required distance from the building, and orderly conduct is virtually certain. Ideologically, the right of Americans to express to representatives of foreign governments their opinions of the policies of those governments must be balanced by recognition of the fact that the missions in New York are there to represent their nations, not in the United States, but in the United Nations; that the position of the American people in this instance is that of a privileged host, not of a party to normal international intercourse.

The standards to be applied in New York should probably be stricter than those appearing from the police and press reports, though not as stringent as those in the D.O. Code. Specifically, the group picketing at any time should, with due regard to the size of the premises, be limited to a reasonable number—certainly considerably less than the maximum of over 100 reported from New York. Shouting or noise of any kind should be avoided in consideration of working conditions in the mission buildings. Finally, there should be no “name-calling” posters which communicate nothing but abusive epithets. Enforcement of such standards would demonstrate our determination to extend appropriate protection to our U.N. guests without infringing any of our popular liberties.

  1. Apparently this memorandum was drafted in three sections, on November 9, 14, and 15, respectively. An attached “Note on Possible Constitutional Limitations on Control of Picketing”, not printed, was drafted on November 14. The memorandum was sent to USUN (Bender) under cover of an L/UNA memorandum of December 6, not printed.
  2. The notes hereunder reference are not printed.
  3. Examination of the U.N. “legislative history” of the agreement sheds no further light on this problem. [Footnote in the source text.]
  4. The “Note on Possible Constitutional Limitations …” is not printed. The final paragraph of the memorandum reads: “It must be concluded from the above that it is impossible to state flatly any definite rules concerning the constitutionality of steps which might be taken to restrict the New York pickets.”