L/UNA files, “Headquarters Agreement—Section 6”

Memorandum Prepared in the Office of the Assistant Legal Adviser for United Nations Affairs (Meeker): Part I

I. The Secretariat’s Legal Contentions

On April 10, 1953 the Secretariat issued a memorandum (E/2397), prepared by its Legal Department, upon the legality of the United States action in refusing to grant visas to two NGO representatives under Section 11(4) of the Headquarters Agreement. The memorandum was drawn up at the request of ECOSOC in connection with the applications for admission to the United States of Mrs. Luckock and Mr. Dessau. The memorandum makes two main submissions: that the reservation to the original Agreement made in Public Law 357, 80th Congress, was never made effective and that, in any event, it would not be applicable to the cases at hand.

In regard to the first point, paragraph 9 of the Secretariat memorandum states:

“But in the event that the provision in Section 6 of the Joint Resolution had been intended by the United States to constitute a reservation, it was never made known to the General Assembly as such, and it was never considered by the General Assembly nor accepted by it.”

The referenced Joint Resolution is S.J. Res. 144, 80th Congress, which was enacted as Public Law 357, 80th Congress. It is difficult to see how a contention can be made that the reservation was never made known to, considered by, nor accepted by the General Assembly.

The complete text of Public Law 357, 80th Congress, was published in the official records of the Second Session of the General Assembly, 6th Committee, as Appendix I to Annex 11 (pp. 333 et seq.). Appendices II and III to the same Annex consist of an exchange of letters between the Legal Adviser to the State Department and the Assistant Secretary-General in charge of the Legal Department of the United Nations. Both of these letters make specific reference to Public Law 357. In addition, the report by the Secretary-General to the Assembly on the proposed Agreement (A/371, the document which formed [Page 263]the basis of study by Subcommittee 1 of Committee 6, contains this passage:

“As a result of the President’s approval on 4 August, this Joint Resolution became Public Law 357 (Appendix 1). Both the joint resolution and Public Law 357 refer to the interpretation placed on the Agreement by Congress, in particular to the right of the United States to control’ the entry of aliens into the territory of the United States. In this connection it would appear desirable to draw the General Assembly’s attention to section 6 of Public Law 357.”

Subcommittee 1 of Committee 6 was not only well aware of the reservations, but devoted a great deal of serious debate to them. Mr. Fahy, the United States representative on the Subcommittee, reiterated time and again in the most unequivocal terms that the President was empowered to sign the Agreement on behalf of the United States only subject to the reservations specified in Public Law 357. Certain members of the Subcommittee had doubts whether the General Assembly should authorize the Secretary-General to effectuate an agreement containing these reservations. Paragraph 4 of the interim report of the Subcommittee, as drafted by Mr. Beckett of the United Kingdom (Doc. A/C.6/SC.4/W.12), contained the statement that:

“… it was neither necessary nor appropriate for the United Nations to take official cognizance of this Resolution of Congress on the ground that the Agreement alone contained the obligations between the parties and that the actual contents of the Resolution of Congress was a ‘domestic’ matter for the United States.”

This point was consistently refuted by Mr. Fahy, and after much debate the statement as drafted by Mr. Beckett was deleted from the Subcommittee’s report, and nothing to this effect was contained therein or in the full Committee’s report to the Assembly (A/427).

In addition, paragraph 9(g) of the interim report of the Subcommittee stated that the exchange of notes “should not contain any other matter having any effect by way of interpretation or otherwise on the provisions of the Headquarters Agreement.” This was obviously unacceptable to the United States, and at its Tenth Meeting, at the suggestion of the Canadian representative, the Subcommittee decided to delete this language from its report (see UN Press Release GA/L/79 of 16 Oct. 1947).

As the Secretariat memorandum points out in paragraph 11, the Headquarters Agreement was brought into force by an exchange of notes. The United States note, dated November 21, 1947, stated that “the Government of the United States of America is prepared to apply the above mentioned Headquarters Agreement subject to the provisions of Public Law 357.” The records of the Department show that there had been discussion with the Secretary-General over the proposed use of the terms “in accordance with” and “subject to”. The [Page 264]United States had insisted upon the words “subject to” as having a more precise legal meaning. The Secretary-General acquiesced on this point.

Paragraph 10 of the Secretariat memorandum states that a reservation must be accepted by the other party if it is to have any effect. It quotes David Hunter Miller to this effect. There would seem to be no question as to the truth of this axiom. However, the real question at issue is not that one, but the question of whether, in this particular case, the United Nations did accept the reservation. In other words, the question is one not of the necessity of acceptance but of the fact of acceptance.

Acceptance of a reservation can be made in a number of different ways and can be evidenced by several different types of action. Characterizing the “subject to” clause in the United States note of November 21, 1947 as an “observation”, the Secretariat memorandum states:

“…This observation is in general terms and did not make reference to any reservation. For these reasons, and because it appeared in a formal note of entry into force, it did not give notice to the Secretary-General that the United States might claim the authority to restrict transit to and from the Headquarters District.”

There is nothing general about the proviso clause of the United States note. It specifically refers to “the provisions of Public Law 357”. Both the Secretary-General and the General Assembly were fully and officially cognizant of the exact provisions of that Law. Also, the section 6 reservation was not adopted by Congress “subsequent to the final adoption of the Agreement by the General Assembly.” It was approved by Congress on August 4, 1947. As the exchange of letters between Mr. Fahy and Mr. Kerno shows, the Secretariat was formally and effectively notified of the exact nature of the Congressional action in August of 1947. The Secretary-General called the specific attention of the Assembly to the reservations in his Report to the Assembly on the proposed Agreement (A/371, 3 Sept. 1947). The reservations were fully considered by the Subcommittee of Committee 6 before either the Sixth Committee recommended or the General Assembly adopted the Agreement. The United States representative on the Subcommittee repeatedly stressed that the President was authorized to sign the Agreement only subject to the reservation. Considering that this knowledge was made known to the Subcommittee, the Committee and the Assembly, and in view of the fact that the Secretary-General was authorized to sign on behalf of the United Nations without further negotiations with the United States, it is difficult to see how a contention can be made that the Assembly was not aware of and did not accept the reservation. Having been made perfectly aware of the reservation, if the Assembly did not wish to accept it, the Assembly [Page 265]would have instructed the Secretary-General not to sign the Agreement but to negotiate further with the United States. However, this is not what it did, and the Secretary-General accepted the United States note of November 21, 1947 including the proviso clause. The reservation was incorporated by reference into, to use the Secretariat’s language, “a formal note of entering into force”. It is hard to conceive of a more effective way of accepting a reservation.

Even if one were to make the argument that as of the date of the entry into force of the Agreement the United Nations had not accepted the reservation which had been added by the United States, the application of the Agreement for a period of more than five years would certainly constitute an acceptance. In this respect the law of treaties is very similar to the law of contracts: acceptance can be evidenced by practice as well as by formal agreement. In any event, if the practice over the last five years does not constitute acceptance, the only conclusion possible is that there is no agreement between the United States and the United Nations regarding the headquarters. If the United Nations has not in fact accepted the reservations of the United States, there has been no meeting of the minds of the two parties and no agreement exists today.

In this connection it is interesting to note the comment upon this subject which was made by David Hunter Miller, who was quoted in paragraph 10 of the Secretariat memorandum. His comment in fact is contained in the omitted portion of the paragraph quoted by the Secretariat and which is indicated by “…”. It reads: “In default of such acceptance, the treaty fails, as in the case of the Naturalization Treaty with Turkey of 1874 …” David Hunter Miller, Reservations to Treaties, p. 76.

Paragraph 12 of the Secretariat memorandum states that:

“Finally, even if the United States had intended to formulate a reservation, it would not appear from a reading of section 6 of the Joint Resolution that it could have application to the present cases. It refers to control by the United States of the entrance of aliens into any territory of the United States other than the Headquarters District, its immediate vicinity, and the necessary area of transit.”

This would seem to ignore the previous part of section 6, which reads as follows:

“Nothing in the Agreement shall be construed as in any way diminishing, abridging or weakening the right of the United States to safeguard its own security and …” (Underscoring supplied).

It is necessary both to consider this part of the reservation and to assign it some meaning. To ascertain its meaning it is helpful to consider the legislative history of the reservation.

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The second part of the reservation, which deals with the entrance of aliens into United States territory outside the Headquarters District, was added by the United States Senate. It is more in the nature of an understanding than a reservation, in that it merely restates the provisions already contained in Article 13 (d) of the Agreement. It will be readily admitted that there is nothing in the Headquarters Agreement which obligates the United States to give free access to areas outside of the Headquarters District and its immediate vicinity, nor which prevents the United States from completely controlling the admission of aliens into the general territory of the United States. When the House of Representatives considered the Joint Resolution as approved by the Senate, it felt that a definite reservation was needed regarding the safeguarding of the national security of the United States. It was the opinion of the House that the United States must have at least some control over the entrance of aliens into the Headquarters District and its immediate vicinity, this control to be limited by the strict requirements of national security. To reiterate, this limited control extends to the Headquarters District as well as to the remainder of the United States from which we can exclude aliens for a number of reasons aside from requirements of national security.