L/UNA files, “Privileges & Immunities, General, 1944–1954”
Memorandum by the Assistant Legal Adviser for Inter-American Affairs (Whiteman)
Use of Franking Privilege by Delegations From the American Republics to the United Nations
I have been asked to review the matter of whether or not delegations from the American Republics to the United Nations are entitled to the franking privilege under the Postal Convention of the Americas and Spain.
While under international law the property of a foreign state is not subject to taxation, postal fees are not in the nature of taxes but rather in the nature of charges for services rendered. Also, under international law, a receiving state has the obligation freely to permit and protect official communications of diplomatic missions. There is, however, no obligation for the receiving state to extend the franking privilege to diplomatic missions. Whether diplomatic officers are entitled to the franking privilege is therefore to be determined by reference to applicable provisions of treaties, if any, or to domestic law, or both. There is no authority under which foreign diplomatic officers in the United States may, in the absence of an agreement, use the frank in connection with the despatch of mail.
The Act approved December 29, 1945, “To extend certain privileges, exemptions, and immunities to international organizations and to the officers and employees thereof, and for other purposes”, Pub. L. 291, 79th Cong., 1st sess., 59 Stat. 669, contains provisions in Section 2 that—
“(d) Insofar as concerns …1 the treatment of official communications, the privileges, exemptions, and immunities to which international organizations shall be entitled shall be those accorded under similar circumstances to foreign governments.”
By Section 9 of the Act it is provided that the benefits provided for therein “shall be granted notwithstanding the fact that the similar privileges, exemption, and immunities granted to a foreign government, its officers, or employees, may be conditioned upon the existence of reciprocity by that foreign government”. Accordingly, the official communications of the United Nations as a “designated” organization [Page 225] under the Act are entitled to such treatment as the United States accords to foreign governments under similar circumstances and without regard to reciprocity. Foreign governments generally are not entitled to the franking privilege.
Article 5 of the Headquarters Agreement for the United Nations, signed June 26, 1947, TIAS 1676, provides with respect to “Resident Representatives to the United Nations” that they—
“shall, whether residing inside or outside the headquarters district, be entitled 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 Joint Resolution of August 4, 1947, the Congress authorized the President to bring the Headquarters Agreement into effect, thus approving this executive agreement. Pub. L. 357, 80th Cong., 1st sess. From this it appears that “Resident Representatives”, as defined in the Headquarters Agreement—and they are defined—are entitled to the “same privileges” as the United States accords to accredited diplomatic envoys, subject to the same conditions and obligations. But the United States does not extend the franking privilege generally to diplomatic envoys accredited to it. It extends the privilege pursuant to treaty obligations.
So far as non-resident representatives to the United Nations are concerned, Section 11 of Article IV of the draft General Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly February 13, 1946, but as yet unapproved by the United States, would stipulate:
“Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities:
* * * * * * *2
“(g) such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from exercise [excise] duties or sales taxes.”
Section 16 of Article IV provides that “In this article the expression ‘representatives’ shall be deemed to include all delegates, deputy delegates, advisers, technical experts and secretaries of delegations.” It is unnecessary to dwell on the scope of these provisions for the reason that the Convention is not legally in effect. Even if it were, it would not include the franking privilege as diplomatic envoys generally do not in the absence of specific treaty provision enjoy the franking privilege.
[Page 226]Under the Pan American Postal Union Convention, signed at Buenos Aires September 15, 1921, 42 Stat. 2154, provision was made in Article 6 for granting the franking privilege to members of the Diplomatic Corps of the Contracting Parties. The Convention signed at Madrid November 10, 1931, for the Postal Union of the Americas and Spain, likewise contained provision for the extension of the franking privilege to members of the Diplomatic Corps, among others. 47 Stat. 1924. The Convention for the Postal Union of the Americas and Spain, revised from time to time, was last revised at Madrid November 9, 1950.
Article 14 of the 1950 Convention for the Postal Union of the Americas and Spain, TIAS 2286, contains the following provisions with reference to the franking privilege:
“1. The contracting parties agree to grant the franking privilege in their domestic service and in the Americo-Spanish service:
* * * * * * *
- “b) To correspondence of members of the Diplomatic Corps of the signatory countries.
- “c) To official correspondence which Consuls and Vice Consuls acting as Consuls send to their respective countries; to that which they exchange among themselves; to that which they address to the authorities of the country in which they are accredited and to that which they exchange with their respective Embassies and Legations, provided reciprocity exists.
* * * * * * *
- “e) To the official correspondence sent and received by the Pan American Union in Washington.
* * * * * * *
“5. The exchange of correspondence of the Diplomatic Corps, between the Secretariats of State of the respective countries and their Embassies or Legations, will be reciprocal between the contracting countries, and will be effected in open mail or by means of diplomatic pouches, in accordance with the provisions of Article 107 of the Regulations of Execution. These pouches will enjoy the franking privilege and all the safeguards of official despatches.
“6. The franking privilege dealt with in this Article does not apply to the air service nor to the other special services existing in the Americo-Spanish regime or in the domestic regimes of the Contracting countries.”
By Article 14 it is accordingly provided that members of the Diplomatic Corps of the Contracting Parties shall reciprocally be granted the franking privilege for all correspondence generally, and not merely “official correspondence” as designated for Consuls and Vice Consuls, and that the franking privilege shall also be granted to the official correspondence sent and received by the Pan American Union in Washington. The privilege does not extend to the air service nor to other special regimes existing in the Americo-Spanish regime or in the domestic regimes of the contracting countries.
[Page 227]Accordingly, “All correspondence (official and personal) of members of the diplomatic corps of Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, Spain, Uruguay, and Venezuela” is entitled to admission in the domestic and international mails by surface means free of charge. United States Official Postal Guide, July 1951, Part I, Ch. III, Art. 72; and Part II, Ch. II, Art. 31, Sections 37.1 to 37.21, Postal Laws and Regulations, 1948.
By the Act approved July 10, 1952, “To extend certain privileges to representatives of member states on the Council of the Organization of American States”, Pub. L. 486, 82d Cong., 2d sess., it is provided that the President is authorized to extend, or to enter into an agreement extending, “to the representatives of member states (other than the United States) on the Council of the Organization of American States, and to members of their staffs, the same privileges and immunities, subject to corresponding conditions and obligations, as are enjoyed by diplomatic envoys accredited to the United States.”
On July 22, 1952, the Bilateral Agreement between the Organization of American States and the Government of the United States of America, was signed, under Article 1 of which it is provided:
“The privileges and immunities which the Government of the United States of America accords to diplomatic envoys accredited to it shall be extended, subject to corresponding conditions and obligations:
- “a) To any person designated by a Member State as its Representative on the Council of the Organization of American States;
- “b) To all other permanent members of the Delegation regarding whom there is agreement for that purpose between the Government of the Member State concerned, the Secretary General of the Organization, and the Government of the United States of America.”
It certainly was not intended by the drafters of the United Nations Headquarters Agreement that there should be a differentiation as between classes of diplomatic envoys to the United Nations (representatives of members of the Postal Union for the Americas and Spain and non-members of the Union) in the type of diplomatic privileges which they should enjoy. The United States draftsmen did not so intend. And there is nothing to indicate that the Congress of the United States in approving the Headquarters Agreement so intended.
The Convention for the Postal Union of the Americas and Spain was revised in November 1950, and there is nothing to indicate that the drafters of the Agreement intended that the provision granting the franking privilege reciprocally to members of the Diplomatic Corps of the signatory countries should be understood to refer to representatives to the United Nations. A similar provision had been in the preceding agreements relating to the Postal Union of the Americas and [Page 228] Spain and to the earlier Pan American Postal Union. The language was not changed with the advent of the United Nations having its site located in the United States. In addition, the Convention for the Postal Union of the Americas and Spain contains an express provision with reference to the franking privilege and the Pan American Union. Further, for the United States to assume the cost of paying for the postal services for the representatives of the other States Parties to the Convention so far as their representation in the United Nations is concerned, would place an inequitable burden on one member of the Postal Union of the Americas and Spain. Presumably this was not intended. Finally, the granting of the franking “privilege” is not to be lightly read into a Convention by implication, as it involves a serious financial burden on the part of the United States.
For all these reasons, it seems doubtful that the Department should take the position that the resident representatives of the American Republics to the United Nations are entitled to the franking privilege.