711.5622/12–1251
Memorandum by the Assistant Secretary of State for United Nations Affairs (Hickerson) to the Deputy Assistant Secretary of State for Far Eastern Affairs (Johnson)1
Subject: Bomber Shot Down by the Soviet Union.
We have discussed with the Legal Adviser’s Office legal problems involved in further steps in regard to the bomber shot down by the Soviet Union.
1. The step which would raise least difficulties would be a direct diplomatic protest by the United States to the Soviet Government. We have hestitated to pursue this course because we have insisted that the plane in question was on a United Nations mission not on a national mission of the United States. (It was for that reason that this year, as once before, our representative in Moscow was reluctant to accept the Soviet note charging violation, and indicated that any protest should be made to the United Nations.) In fact, however, a United States Government protest in this case is entirely consistent with the fact that the plane in question was on a mission for the United Nations. Neither the plane nor the crew lost their national character by virtue of being assigned to the United Nations. Indeed, according to the Legal Adviser’s Office, only the United States Government has authority to make a diplomatic claim for the loss of the plane and of the crew. It should be possible, therefore, in a note to the Soviet Government to make it clear that the claim is being made by the United States Government as the owner of the plane and as the Government whose nationals were lost with the plane, although the plane was engaged in a United Nations action. While the Legal Adviser’s Office doubts that the fact that the United States as the Unified Command in Korea gives it the right to make diplomatic claims for damage to personnel or equipment engaged in the action, [Page 1309] it should be possible to mention the fact that the United States is the Unified Command in an appropriate context to underline the United Nations character of the flight in question.
2. The Legal Adviser’s Office informs us also that while the United Nations cannot make a claim for the loss of the personnel and plane in question, it perhaps has the capacity to make a diplomatic protest to the USSR for damage to and interference with the United Nations action in Korea, and request an apology and assurances. The Legal Adviser’s Office is also of the view that under a General Assembly resolution of December 1, 1949 (365–IV), the Secretary General might have the authority to make such a representation on behalf of the United Nations. It might be possible, therefore, to request the Secretary General to do so. We are not sure, however, it would be wise to involve the Secretary General in this incident in this way. He might not be willing to make such a representation, particularly in the light of the lack of conclusive evidence.
On balance, we recommend that the Department explore further and pursue the first alternative, i.e., a direct protest to the Soviet Government.
- The memorandum was also addressed to Mr. Walworth Barbour of the Office of Eastern European Affairs.↩