Foreign Relations of the United States, 1952–1954, United Nations Affairs, Volume III

L/UNA files, “Privileges & Immunities, General, 1944–1954”

¹

Memorandum by Richard J. Kerry, Administrative Attorney, Division of International Administration²

I. Privileges & Immunities

[Washington,] March 28, 1952.

The Charter of the UN³ provides:

article 104

The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.

article 105

1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

The charters, constitutions or conventions of the Specialized Agencies contain the following provisions concerning privileges and immunities:⁴

1. International Monetary Fund, Articles of Agreement between the U.S.A. and other powers: Article IX.

2. International Bank for Reconstruction and Development, Articles of agreement between the U.S.A. and other powers: Article VII.

3. ICAO Convention, Article 60.

4. WHO Constitution, Chap. XV: Articles 66–68.

5. UNESCO Constitution, Article XII.

6. FAO Constitution, Article XV.

7. ILO Chap. IV, Article 39 & 40.

8. WMO Convention Part XIV, Article 27.

II. International Character of Staff.

The Charter of the UN provides:

article 100

1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.

2. Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

article 101

1. The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.

2. Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council, and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat.

3. The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.

The charters, constitutions or conventions of the specialized agencies (except the Universal Postal Union) contain similar provisions:

1. IMF Act XII, Section 4.

2. I.B.R.D. Article V, Section 5.

3. ICAO Article 58 & 59.

4. WHO Article 35, 37.

5. UNESCO Article VI 4 and 5.

6. FAO Article VIII.

7. ILO Article 9.

8. WMO Article 21, 22.

III. Privileges and Immunities—Public Law 291, 79th Congress⁵

This act provides certain privileges, exemptions and immunities for international organizations as defined in section 1 of the act, for Foreign Government representatives to such international organizations and for officers and employees of such international organizations.

The act recognizes the legal personality of international organization; confers upon the property and assets of such organizations’ immunity from search and confiscation; makes the archives of such organizations inviolable and grants to such organizations same treatment with respect to customs, duties, taxes on importation, registration of foreign agents and treatment of official communications as is accorded to foreign governments. (Section 2)

The Act grants to international organizations’ aliens immunity from customs duties and importation taxes on original entry. (Section 3); exempts from U.S. income taxes aliens employed by international organizations. (Section 4) International organization employees are exempted from the provisions of the Federal Insurance Contributions Act, the Federal Unemployment Tax Act (Section 4) and the Social Security Act. (Section 5)

Foreign government representatives to international organizations and officers and employees of international organizations are accorded the same treatment as is accorded foreign government officers and employees with respect to entry into and departure from the U.S., alien registration and finger-printing and the registration of foreign agents. International organization employees are immune from suit and legal process for acts performed in an official capacity. (Section 7)

Section 7 also amends the Immigration Act of May 26, 1924⁶ by creating a new category of non-immigrants for visa and entry purposes: representatives of foreign governments to international organizations and employees of international organizations. Section 1 of the Act provides that the President may at any time revoke the designation of an organization as being entitled to privileges and immunities under the act or may extend in part only, or revoke in part, privileges and immunities under the Act.

Section 8 provides that the Secretary of State may revoke the privileges and immunities of individuals when their continued presence in the U.S. is no longer desirable.

IV. Headquarters Agreement⁷—Access of Aliens to the Headquarters

(a) Section 11 of the Headquarters Agreement.

(b) Section 13.

(c) Section 6, Public Law 357, 80th Congress.

V. Headquarters Agreement—Diplomatic Privileges and Immunities

Section 15 of the Headquarters Agreement. Privileges and immunities pursuant to the foregoing included the following: General immunity from legal process and immunity from arrest, exemption from personal property tax, exemption from fees for drivers’ license and automobile plates, exemption from federal excise taxes and, in case of UN, from New York City sales tax and New York State fuel tax.

VI. Privileges and Immunities—General Convention⁸

The general convention on privileges and immunities of the United Nations has been acceded to by 38 members, but not by the United States.

Section 18 (b) of the Convention provides for exemption of salaries and emoluments of officers of United Nations from U.S. income tax. Section 18(c) provides for the exemption of officials of the UN from, national service obligations. In so far as these two sections might, in the absence of a reservation, apply to nationals of an acceding nation, they represent the principal differences between the privileges and immunities of the Convention and those currently provided for by P.L. 291, 79th Congress and section 15 of the Headquarters Agreement.

1. Files retained by the Assistant Legal Adviser for UN Affairs.
2. Handwritten notation at top of page: “For McCarran from Kerry”. The reference presumably is to Senator Patrick A. McCarran, Chairman of the Senate Judiciary Committee.
3. Signed at San Francisco, June 26, 1945, 59 Stat, (pt 2) 1031.
4. For appropriate text citations, see Marjorie M. Whiteman, Digest of International Law (Washington: Government Printing Office, 1968), vol. xiii, pp. 44 and 45.
5. The International Organizations Immunities Act, Dec. 29, 1945, 59 Stat. 669.
6. 43 Stat. 153.
7. The Headquarters Agreement between the United States and the United Nations, June 26, 1947, 61 Stat. 758. For documentation, see Foreign Relations, 1947, vol. i, pp. 22 ff.
8. The General Convention on Privileges and Immunities of the United Nations. and related instruments, was adopted by the General Assembly in Resolution 22 (I), Feb. 13, 1946. For text see United Nations, Official Records of the General Assembly, Resolutions Adopted during First Part of First Session, p. 25.