USUN files, “IO, Privileges & Immunities, Delegations (Apr. 1949–1955)”

Memorandum by Albert F. Bender, Jr., of the Mission at the United Nations1

confidential
  • Subject:
  • Jiri Stary Case—Effect of Section 6 Reservation to Headquarters Agreement

Problem:

USUN and the Department presently face the problem of what action, if any, is to be taken in view of the exchange of notes, dated respectively June 10, 1952 and June 16, 1952 between USUN and the SYG UN, concerning the denial of a visa to Jiri Stary, a Czech representative to ECOSOC. USUN’s note, based upon the Department’s instructions, advised the SYG UN that in denying the visa, the U.S. acted within the authority reserved to it by the provisions of USUN’s note to the SYG UN of November 21, 1947, making the U.S. acceptance of the Headquarters Agreement subject to Section 6 of PL 357–80th Congress. The SYG UN’s reply noted that, if Section 6 had been intended as a reservation to the Headquarters Agreement, it had never been considered by the GA nor accepted by it and accordingly, whether or not it conditioned U.S. obligations under the Headquarters Agreement was a question for the GA.

Recommendations:

1.
A reply to the SYG UN’s note of June 16, 1952 should be deferred for the present to ascertain whether the Czech Government intends to raise the issue in ECOSOC.
2.
If the Czechs raise the issue in ECOSOC, a reply should be made to the SYG UN’s note of June 16 pointing out that U.S. action in denying a visa to Stary is based upon Section 13 of the Headquarters Agreement wholly apart from the Section 6 reservation, and concentrating on the justification of the visa denial under Section 13. With [Page 215] reference to the Section 6 reservation, the reply should state that the U.S. is prepared to discuss fully with the SYG UN the interpretation and effect of that Section.
3.
If the issue is not raised by the Czechs during the ECOSOC session, a reply should be made to the SYG UN’s note of June 16 after the close of the session, suggesting the need for consultation and discussion of the interpretation and effect of the Section 6 reservation.

Discussion:

The recent exchange of communications between USUN and the SYG UN, dated respectively June 10 and June 16, 1952, re the application of the Section 6 reservation to the Headquarters Agreement to the case of Jiri Stary, a Czech representative to ECOSOC, raises a serious problem.

USUN’s note, charging that Stary had engaged in espionage activities when previously in the U.S. as a member of the Czech Permanent Delegation to UN, stated in accordance with the Department’s instructions: “The Secretary of State also considers that in refusing a visa to Mr. Stary, the U.S. is acting within the authority which it reserved to itself by the provisions of the U.S. Representative’s note of November 21, 1947, making the U.S. acceptance of the Headquarters Agreement subject to Section 6 of PL 357–80th Congress.” The note earlier stated “Section 6 of PL 357–80th Congress provided in substance that nothing in the Headquarters Agreement shall abridge, diminish or weaken the right of the U.S. to safeguard its security.”

The SYG UN’s reply took note of USUN’s reference to the Section 6 reservation and stated “In this connection, however, the SYG notes that, in the event that this provision had been intended to constitute a reservation, it was never considered by the GA nor accepted by it. Accordingly, whether or not it has the effect of conditioning obligations under the Headquarters Agreement is a question for the GA, which adopted the Agreement and authorized the SYG to bring it into force”.

USUN’s note to the SYG also made reference to Section 13 of the Headquarters Agreement indicating that, if Stary were at present in the U.S., it would now be necessary to require, in accordance with the provisions of that Section, that he depart from the U.S. because of his abuse of his privileges of residence while here.

The SYG’s reply noted this reference to Section 13 and stated that “The SYG is unable to take any position as to the applicability of Section 13 of the Headquarters Agreement in the present case, since he is in receipt of no official information from the Government concerned”.

Although the Czech government has been informed of the denial of Stary’s visa in a note almost identical with that sent to the SYG UN, it has not and perhaps will not make an issue in the UN of the denial [Page 216] of a visa to Stary. The Government did file an official protest with the Embassy in Prague almost two months ago charging that the failure to issue a visa constituted a violation of the Headquarters agreement and of the Charter, but no publicity was given to it. There has been some publicity given in the Washington, but not New York, newspapers and on the radio to our note of June 10 to the SYG UN, but as yet no publicity has been given to the SYG UN’s note of June 16.

It appears advisable to await possible action by the Czech Government during the ECOSOC session before replying to the SYG UN’s note of June 16. A reply at this time might give rise to further publicity and induce the Czechs to take action in ECOSOC which they otherwise would not take. The U.S. position in ECOSOC has already been prejudiced by the discussion of visa problems of ECO representatives, and further discussion of such problems in that forum should be avoided, if at all possible.

A reply will obviously have to be made to the SYG UN’s note of June 16 if the Czech Government raises the issue in ECOSOC. Feller (US) has previously advised that he believed the Secretariat could go along with a contention that the denial of Stary’s visa could be justified upon the principle of Section 13 of the Agreement which provides that a person such as Stary may be required to leave the U.S. for abuse of his privileges of residence. In his note of June 16, the SYG UN specifically left open the question of the applicability of this section to the instant case “since he is in receipt of no official information from the Government concerned”. Accordingly it seems advisable, should the Czechs raise the issue in ECOSOC, to reply to the SYG UN’s note of June 16 by concentrating on the justification of U.S. action under Section 13 and advising the SYG UN that the U.S. is prepared to discuss with him the interpretation, application and effect of the Section 6 reservation. For reasons stated below, such consultation is necessary in any case.

Should the ECOSOC session conclude without such a protest, it appears desirable to make a reply at that time. The Department has taken the position with the Congress that Section 6 is effective as a reservation and does condition U.S. obligations under Sections 11 and 13 of the Agreement. In my opinion, the Department would be subject to Congressional criticism at a later date if it did not pursue the matter further after having received the SYG UN’s note. In any case, clearly the matter at issue is so important that an attempt ought be made in the near future to resolve it with the SYG UN, by negotiation if possible, or failing that, by arbitration.

To understand the matter at issue between the U.S. and the SYG UN, it is necessary to review the history of the negotiation of the Headquarters Agreement.

[Page 217]

[Here follows a lengthy exposition of the negotiation of the Headquarters Agreement and the events bringing it into effect.2]

In view of the history of the negotiation of the Headquarters Agreement and of the notes bringing it into effect it would appear that one of the following situations exists:

a.
It is the Department’s position as I understand it that the Headquarters Agreement is in effect and the obligations of the U.S. contained in Sections 11 and 13 of the Agreement (not to impose impediments to transit to or from the Headquarters District of certain categories of aliens regardless of laws and regulations of the U.S. relating to the entry of aliens) are conditioned by the provisions of Section 6 of PL 357. This position is based upon the Department’s belief that the legislative history of Section 6 indicates a Congressional intent to condition U.S. obligation under Section 11 and 13 of the Agreement, upon the fact that the provisions of Section 6 were specifically called by the SYG to the attention of the GA which approved the Agreement, and the fact that Ambassador Austin’s note of November 21, 1947 specifically stated that the U.S. was prepared to apply the Headquarters Agreement “subject to the provisions of PL 357”.
b.
The position of the SYG UN as I understand it is that the language of Section 6 is such that on its face it indicates no intention on the part of the U.S. to reserve the right to deny access to the Headquarters District should it believe its security was endangered and, accordingly, Section 6 does not condition obligations contained in Section 11 and Section 13 of the Agreement. The SYG UN presumably will claim that neither he nor the GA had cognizance of or was bound by the legislative history of Section 6 in the Congress, and that both he and the GA were entitled to rely upon a normal reading of the language of Section 6 when approving and bringing the Agreement into effect. Accordingly even though Section 6 was called to the attention of the GA which approved the Agreement and even though Ambassador Austin’s note contained the above-mentioned reference to PL 357, the Agreement came into effect with the exchange of notes without any reservation by the U.S. conditioning its obligations under Sections 11 and 13 of the Agreement. The SYG UN has support for his position in the fact that the U.S. Representative in the Sub-Committee of Committee 6 of the GA opposed any discussion of the effect of Section 6 on the Agreement, and no attempt was made by the U.S. to make clear the position which it now asserts either in Committee 6, in the Plenary or in Ambassador Austin’s note.
c.
If the U.S. insists that its interpretation of Section 6 was made clear to the GA when the Agreement was approved and to the SYG UN when notes were exchanged bringing the Agreement into effect, and if the SYG UN maintains his position that this interpretation was not understood by the GA or himself, then it can be argued that there never was a meeting of minds and that the Agreement has never become effective. This is clearly a position which neither the SYG nor the Department would want to have established.

[Page 218]

The SYG UN’s note of June 16, 1952 appears to be incorrect in stating that whether or not Section 6 had the effect of conditioning the obligations of the U.S. under Sections 11 and 13 of the Agreement is a question for the GA. Presumably, if the SYG UN cannot be convinced by consultation of the soundness of the U.S. position, there should then be sought a decision by an appropriate tribunal with respect to the combined legal effect of the enactment of PL 357, the approval of the Agreement by the GA and of the exchange of notes purporting to bring the Agreement into effect. Such a legal determination could be had under the arbitration provisions of Section 21 of the Agreement. Although Section 6 is not a part of the Agreement as signed, nevertheless its invocation by the U.S. has now given rise to a “dispute between the UN and the U.S. concerning the interpretation or application of this Agreement” within the meaning of Section 21. This Section, of course, provides for arbitration only where such a dispute “is not settled by negotiation or other agreed mode of settlement”.

It is my personal opinion that a court of arbitration might well refuse to uphold the position of the Department. I think it is clear that the arbitrators would consider the legislative history of Section 6 to be irrelevant since the Congressional intent claimed by the Department to be disclosed by that history was never brought officially to the attention of the SYG UN or of the GA when the Agreement was approved and brought into effect. Accordingly, only the language of Section 6 would be considered by an arbitration panel. While Section 6 does state that “nothing in the Agreement shall be construed as in any way diminishing, abridging or weakening the right of the U.S. to safeguard its own security.…”, it contains in the same sentence a specific clause dealing with the reservation by the U.S. of its right to control the entrance of aliens. The right reserved is that “completely to control the entrance of aliens into any territory of the U.S. other than the Headquarters District and its immediate vicinity as to be defined and fixed in a supplementary agreement between the Government of the U.S. and the UN in pursuance of Section 13(3) (c) of the Agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries”. (Underlining inserted.) In view of this language it might well be held that Section 6 did not evidence as intent to reserve any right of the U.S. to control the entrance of aliens into the Headquarters District, its immediate vicinity and areas to be traversed in transit. Further, in view of the specific language in Section 6 dealing with the control of the entrance of aliens, it would be unusual statutory construction to read into the general provision reserving the right “to safeguard its own security” an intent relating to the control of entrance of aliens. Full effect could be given to this general provision as relating to [Page 219] matters other than the control of the entrance of aliens. It is conceivable that the security of the U.S. might be threatened by the manner in which UN attempted to exercise rights granted to it in provisions of the Headquarters Agreement other than those of Sections 11 and 13, for example, the provisions of Section 4 permitting the UN to establish and operate short wave radio broadcasting facilities, and the provisions of Section 5 permitting the UN to establish and operate an airdrome.

  1. Forwarded by Bender on July 1 under cover of a memorandum to Kerry of the Division of International Administration (USUN files).
  2. For documentation on these matters, see Foreign Relations, 1946, vol. i, pp. 60116, and ibid., 1947, vol. i, pp. 22 ff.