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

Memorandum Prepared Jointly by the Department of State and the Department of Justice 1

Position Paper

The Secretary of State refers to the action of the United States in withholding the issuance of visas to certain aliens seeking to enter the United States ostensibly for the purpose of acting as consultants on behalf of certain non-governmental organizations before the Economic and Social Council.

It is the position of the Government of the United States that the Headquarters Agreement between the United States and the United Nations was brought into force on November 21, 1947 by, and in accordance [Page 276]with the terms of, the notes exchanged on that date between the United States Representative and the Secretary General. As specifically stated in the note of the United States Representative, the Agreement was brought into effect subject to the provisions of the Joint Resolution of the Congress of the United States (Public Law 357, 80th Congress), by which the Government of the United States stated its understanding of, or its reservation to, the approval of the Agreement. The United States Representative had no authority to conclude the Agreement upon any other basis and in fact he did not do so, as he clearly specified in his note of November 21, 1947 that he was bringing the Agreement into effect subject to the provisions of Public Law 357.

Section 6 and other parts of the Joint Resolution of the Congress of the United States (Public Law 357) are therefore, so far as the Government of the United States is concerned, to be considered as integral parts of the Agreement, in so far as its meaning and application are concerned. On the other hand, if the contention of the Legal Staff of the United Nations should prevail, and it should therefore be concluded that the United Nations has never accepted the provisions of Section 6 of the Joint Resolution (Public Law 357), it would necessarily follow that there was never actually a meeting of the minds necessary to the conclusion of a valid contract or agreement and that no Headquarters Agreement actually exists in law or in fact.

Section 6 of the Joint Resolution constitutes an interpretation, an understanding, and a reservation on the part of the United States with respect to the whole of the Agreement and not to any one part thereof, in so far as the security of the United States is concerned. It applies, therefore, not only to the provisions of the Agreement relating to the issuance of visas and to the admission of aliens into the United States, but also to other provisions of the Agreement, including that part providing for the arbitration of disputes or differences arising under the Agreement, which affect the security of the United States, and there is no legal obligation whatever resting or imposed upon the United States under the Agreement to submit to arbitration any question affecting our security when determined in accordance with existing laws of the United States. Any other construction of the Agreement would disregard the plain language of the Congress of the United States in Section 6 of the Joint Resolution and would be tantamount to holding that the right of the United States to safeguard its own security has been weakened, abridged, or diminished notwithstanding the clear language of Section 6 to the contrary.

The Representative of the United States may assure the Secretary General that the Government of the United States has no desire or intention to exclude from its national territory any alien who is coming in transit to the Headquarters District of the United Nations [Page 277]in the United States exclusively on official business of, or before, the United Nations. Except for the provisions relating to the protection of our national security, the United States has exempted, and is prepared to continue to exempt, such aliens from the excluding provisions of our immigration laws. Mere membership in the Communist Party, for example, has never been considered by the United States to constitute a proper basis for the exclusion of an alien coming to the United Nations. The number of alien Communists who have been permitted to enter the United States for United Nations purposes, many of whom are still in the United States under the auspices of the United Nations, should constitute ample evidence of the views and practices of the United States with respect to its security in the light of the Headquarters Agreement, including Section 6 of the Joint Resolution. On the other hand, when there is in any alien’s case clear and convincing evidence that the alien is coming to the United States for a purpose outside the scope of his proper activities within one of the five categories described in Section 11 of the Headquarters Agreement, and the competent authorities of the Government of the United States are satisfied that the admission of the alien would be prejudicial to the national security, the Government of the United States must invoke its sovereign right to exclude such alien from the United States. If the United States were estopped from exercising such authority its right to safeguard its own security would be impaired and this would be contrary to the terms of the Joint Resolution of Congress by which the Government of the United States agreed that the Headquarters of the United Nations could be located in the United States.

The pertinent provisions of the domestic law of the United States relating to the exclusion of aliens on grounds affecting the national security may be found in Section 212(a) (27), (28), and (29) of the Immigration and Nationality Act. It is submitted that there is nothing in the Charter of the United Nations or in the Headquarters Agreement which could reasonably be construed as requiring the United States to admit an alien who falls within the provisions of Section 212(a) (27) or (29) of the Act, as the activities envisaged in in these provisions of law are not within the scope of the legitimate activities of any alien who is seeking to enter the United States in transit to the Headquarters of the United Nations as provided in Section 11 of the Headquarters Agreement. So far as Section 212(a) (28) of the Act is concerned, those aliens who are covered by Section 11 (1) and (2) of the Agreement are exempt from exclusion, while those aliens who fall within the provisions of Section 11(3), (4), and (5) of the Agreement can be admitted only within the discretion of the Attorney General of the United States and under such terms and conditions as he may deem to be necessary to safeguard the security of the United States. Each such case is carefully and meticulously considered [Page 278]and reviewed by the top-ranking officers of the Government of the United States. The conclusion that such an alien must be excluded from the United States is never lightly reached but is the result of the most earnest consideration by the competent high-level authorities in the Government of the United States.

The Government of the United States does not consider that it is under any legal obligation to submit to the United Nations, or to any other authority, the nature or source of information of a classified nature which forms the basis of its conclusions in an individual alien’s case, as the submission of such classified information is not only prohibited by the laws of the United States but the submission of such information to any other authority for review and consideration would be derogatory to, and inconsistent with, the sovereign right of the United States to safeguard its own security. The extreme liberality of treatment accorded by the United States to the thousands of aliens who have come to the United States for purposes connected with the United Nations should constitute ample evidence that the United States, as host to the United Nations, does not desire to act arbitrarily or wrongfully in exercising its prerogatives.

While the Government of the United States does not recognize any obligation to submit the facts in the cases of aliens from whom visas were withheld the representatives of the United States may be prepared to discuss the methods and procedures by which the Government of the United States arrived at the decision to withhold the visas, in order that the representatives of the United Nations may be convinced that such action was not arbitrary or capricious but was determined to be required only from the standpoint of the security of the nation, which is consistent with one of the fundamental purposes for which the Government of the United States and other Members created the United Nations, namely, the promotion of national and international security and the peace of the world.

  1. Transmitted to Ambassador Lodge in New York, under cover of letter dated May 1 from Donold B. Lourie, Under Secretary of State for Administration.