L/UNA files, “Privileges & Immunities, General, 1944–1954”
The Secretary-General of the United Nations (Lie) to the United States Representative at the United Nations (Lodge)1
Sir: I have the honour to invite your attention to my note relating to the United States Immigration and Nationality Act and dated 4 August 1952,2 to which no reply has been received.
I there referred to two legal questions of importance to the United Nations which were posed by the terms of Section 247 of that Act. That Section requires the Attorney General of the United States to adjust to the appropriate non-immigrant (international organization) status any officer or employee of the United Nations who has been admitted to the United States for permanent residence. I therefore stated the understanding of the United Nations that, although the Section did not in terms appear intended to affect privileges and immunities accorded to an international organization rather than to the individual as such, nevertheless the Act would not be interpreted [Page 256] in any manner inconsistent with the legal status, privileges and immunities owing to the United Nations under the Charter, in particular as might relate to the immunity from legal process for acts performed in the course of official duty as already accorded without regard to nationality or residence by Section 7 (b) of the International Organizations Immunities Act.
I likewise recalled that the exemption from income taxation on the salaries and emoluments paid by the United Nations was understood to have been accorded for the benefit of the Organization and not for the relief of the individual, and that the General Assembly had so regarded this exemption when calling for its extension to all the staff without respect to nationality. Any action by United States authorities to treat the tax exemption accorded by Section 4 of the International Organizations Immunities Act as capable of being waived by the individual seeking to retain his personal status as a permanent resident in the United States must be expected to impose an additional financial burden on the United Nations, by application of the tax reimbursement policies established by the General Assembly. You will therefore understand why it remains necessary for me to receive an assurance that the Section in question will not be interpreted in such manner as to affect the resources of the United Nations or to require specific budgetary action and other internal administrative adjustments.
My note of 4 August 1952 was written at a time when the Immigration and Nationality Act had not yet come into force, and it expressed the hope that some appropriate action could be taken in the preparation by the Attorney General of the Regulations to be issued under Section 247, in order to make plain the protected status of the Organization. Since that date, however, the Act has entered into force and the Regulations have appeared and been brought into effect without clarifying in any way the scope of the Section. Moreover, the provisions for the waiver of all privileges and immunities have been applied against affected members of the staff of the United Nations in a sufficient variety of situations that it is no longer consistent with the effective functioning of the Organization for me further to defer their execution of the waiver on the grounds that it was first desirable to seek an explanation from the United States authorities of the intent and legal effect of this legislative requirement. Thus, for example, departures from the Headquarters on travel affecting the operations of the United Nations have been seriously delayed because the immigration authorities of the United States have declined to issue re-entry permits to staff having permanent residence status unless they first executed the waiver in the general and inclusive language used by the Act.
I am therefore authorizing members of the staff under certain conditions to execute the waiver if required by the appropriate authorities. [Page 257] I do this with every confidence that your Government will not apply its legislation in such manner as to impinge upon the legal status already granted the Organization as such, and this action does not constitute in any sense a waiver on behalf of the United Nations of any privilege, immunity, exemption or facility to which it might hereafter lay claim in any specific situation. It is the position of the United Nations that it would be a violation of Article 105 of the Charter for any governmental authority to treat the immunity from legal process relating to acts performed by an employee in his official capacity as waivable by the individual without the express authority in each instance of the Organization as such. This plainly conforms with the language of Section 7(b) of the International Organizations Immunities Act itself. Therefore, the authority which I now propose to give to staff members to execute the waiver relates only to any personal privileges and immunities contemplated by Section 247 which they may enjoy, and in no way relates to the immunity from legal process.
Finally, unless I should receive an authoritative indication from you to the contrary, I shall not be in a position to advise the staff members affected that by reason of such a waiver federal income taxes are payable by them on the salaries paid them by the United Nations. This is for the reasons already stated, and in the meantime there has come to my attention no amendment to the Internal Revenue Code, or to Regulations issued thereunder, on which I might rely as in any way altering the exclusion from income taxation on such salaries which was expressly written into law by Section 4 of the International Organizations Immunities Act amending the Internal Revenue Code.
Accept, Sir, the assurances of my highest consideration.