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Immunities and Privileges of Delegations to the United Nations

  • Leo Gross
Extract

In the sixteen years since the United Nations on the invitation of the United States established its principal headquarters in New York, there have been remarkably few incidents and little publicity in connection with the immunities and privileges of Members' representatives. This is no doubt due not to the clarity or quality of the relevant juridical instruments but to the tact and understanding of all concerned: the United Nations and more particularly its Secretaries-General, the representatives of the Member States and in a very large measure the Department of State and the United States Mission to the United Nations. It was the violent reaction of Chairman N. S. Khrushchev, attending the fifteenth session of the General Assembly as head of the Soviet Union delegation, against the restrictions imposed upon his movements in the United States by the Department of State which drew attention to the question of the rights and privileges of delegations to the United Nations. For the first time the head of the delegation of a great power and a permanent member of the Security Council was subjected to such restrictions. Speaking in the General Assembly, Mr. Khrushchev referred to “the various restrictions of the rights of representatives of States in the United Nations” and the “instances … of the representatives of young African and Asian States being subjected to racial discrimination.” He raised the question “whether or not thought should be given to the choice of another location for the United Nations Headquarters which would better facilitate the effective work of this international organization.”The nature and extent of these restrictions will be discussed below but it may be well to begin with a survey and analysis of the bewildering array of instruments which govern this matter.

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1 The number of members of permanent missions to the United Nations including their families was estimated at approximately 1,000 in 1960. This represents about one-seventh of the total number of persons entitled to diplomatic privileges in the United States. Barnes, William, “Diplomatic Immunity from Local Jurisdiction,” Department of State Bulletin, 08 1, 1960 (Vol. 43, No. 1101), p. 173182 at p. 181.

2 Document A/PV. 869, September 23, 1960, p. 101.

3 Report of the Headquarters Commission, Document A/69, October 1946, p. 7–11.

4 All these instruments are conveniently available in the United Nations Legislative Series: Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations 1959 (U.N. Publications Sales No.: 60.v.2) p. 128173, 183–193, 204–217. Hereafter referred to as Legislative Texts. This work is the source of all references to relevant national and international instruments in this paper.

5 For the text of Reservation see this issue note 26 and the discussion on p. 494 ff.

6 Document A/427, October 27, 1947.

7 With respect to the timing of this enactment it has been suggested that

there is some evidence that the Department of State, in sponsoring the present legislation, intended that it should serve to implement completely the future obligations of the United States under the convention to be concluded for the purpose of giving effect to Articles 104 and 105 of the Charter. In fact one of the motives in seeking enactment of the legislation at the particular time may well have been to define the position of the United States in advance of any action by the General Assembly and thus to influence the substantive content of its recommendations or of any convention that might be proposed.

Preuss, Lawrence, “The International Organization Immunities Act,” 40 American Journal of International Law, p. 332345 (1946) at p. 341 ff.

8 Jenks, C. Wilfred, International Immunities (London: Stevens, 1961), p. 11. Jenks notes that the United Kingdom did so amend its legislation.

9 House Concurrent Resolution 75, inviting the United Nations, passed unanimously by the House and the Senate is expressly mentioned in the Joint Resolution regarding the Headquarters Agreement.

10 General Assembly Official Records (3rd Session), Part I, Resolutions, Document A/810, p. 173. Italics supplied.

11 United Nations Participation Act. Report of the Committee on Foreign Affairs on H.R. 6802—A Bill to strengthen the United Nations and Promote International Cooperation for Peace. 80th Congress, 2d Session, H.R. No. 2291, 1948, p. 44 ff. Italics supplied. Hereinafter cited as House Report No. 2291.

12 House Report 2291 refers to three aspects of the General Convention which stirred up controversy: exemption for American nationals serving in the Secretariat from income tax and service obligations and the laissez-passer. P. 16–20.

13 The juridical basis of the construction suggested above may be found, apart from the text itself, in Article 38 of the Statute of the International Court of Justice. The Court, pursuant to paragraph 1 (a), shall decide disputes submitted to it in accordance with “international conventions, whether general or particular, establishing rules expressly recognized by the contesting States.” The important point here is that the Court is not restricted to conventions binding upon the parties to the dispute by reasons of formal ratification or accession. Such formal acts are no doubt solid evidence of recognition but what is required is evidence of recognition and this can be given in a less formal fashion. The Court might look to the vote in the General Assembly on the General Convention as evidence of United States recognition. However, the references in the Headquarters Agreement would in any event constitute sufficient evidence of recognition if the Court, pursuant to Section 26 (b) of the Agreement, were asked for an advisory opinion on a legal question requiring a construction of a conflict between the Agreement and the General Convention.

14 UNCIO Documents, Vol. XIII, p. 704, Document 933, June 12, 1945.

15 This Act is relevant insofar as an alien admitted for permanent residence, and employed by an international organization or a foreign mission must, in order to retain his immigrant status and prevent reclassification as nonimmigrant, file a waiver under section 247 of this Act of privileges and exemptions accruing to him under any law or executive order. For further information concerning this see Legislative Texts, p. 145 ff.

16 It is not reprinted in the Legislative Texts although it was included in the Handbook on the Legal Status, Privileges and Immunities of the United Nations, Document ST/LEG/2, September 19, 1952. P. 292 ff.

17 See Handbook, p. 66.

18 SirFitzmaurice, Gerald (United Kingdom). General Assembly Official Records (3d Session), Part I, Sixth Committee, p. 624.

19 This formula is used by the United States. Cf. remarks by Mr. Maktos (United States), ibid., p. 628. See also Hadwen, John G. and Kaufmann, Johan, How United Nations Decisions are Made (Leyden: A. W. Sythoff, 1960), p. 26.

20 General Assembly Official Records (3d Session), Part I, Resolutions (Document A/810), p. 171.

21 Hadwen and Kaufmann, who have served on the permanent missions of Canada and the Netherlands respectively, described these functions as follows: “They maintain contact with the U.N. Secretariat on a continuous basis, report on previous meetings, anticipate coming meetings and act as a channel of communication and centre of information for the relationship of their country with the U.N.” Ibid., p. 26. And “… the Permanent Representative in New York has a wide and significant representational function to fulfill.” Ibid., p. 28.

22 SirFitzmaurice, Gerald (United Kingdom), General Assembly Official Records (3d Session), Part I, Sixth Committee, p. 636. Practice since then has tended to give a greater role to the permanent missions.

23 Mrs. Gunnar Myrdal, a prominent official of UNESCO, who was first denied the necessary visa by United States authorities but was eventually admitted. Remarks by MrSterner, (Sweden), ECOSOC Official Records (16th Session), p. 249256.

24 ECOSOC Official Records (15th Session), 679th plenary meeting, 04 9, 1953, p. 37.

25 Document E/2397. ECOSOC Official Records (15th Session), Annexes, Agenda item 34, paragraphs 13, 14, p. 3. The text of Section 21 is as follows:

(a) Any dispute between the United Nations and the United Sates concerning the interpretation or application of this agreement or of any supplemental agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators, one to be named by the Secretary-General, one to be named by the Secretary of State of the United States, and the third to be chosen by the two, or, if they should fail to agree upon a third, then by the President of the International Court of Justice.

(b) The Secretary-General or the United States may ask the General Assembly to request of the International Court of Justice an advisory opinion on any legal question arising in the course of such proceedings. Pending the receipt of the opinion of the Court, an interim decision of the tribunal shall be observed by both parties. Thereafter, the arbitral tribunal shall render a final decision, having regard to the opinion of the Court.

26 The text of Section 6 of Public Law 357 is 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 completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

61 STAT. 756 at 767. Italics supplied.

27 Progress Report by the Secretary-General on negotiations with the United States of America concerning the interpretation of the Headquarters Agreement, July 27, 1953, Document E/2482, ECOSOC Official Records (16th Session), Annexes, Agenda Item 33, p. 12, paragraphs 3, 4, 5.

28 For text of this section see above p. 488.

29 ECOSOC Official Records (10th Session), 743d Meeting, 07 31, 1953, p. 249 ff, paragraph 7.

30 Ibid., p. 250, paragraph 9.

31 The text is as follows:

The Secretary-General shall, at the request of the appropriate American authorities, enter into discussions with such authorities, with a view to making arrangements for registering the arrival and departure of persons who have been granted visas valid only for transit to and from the headquarters district and sojourn therein and in its immediate vicinity.

32 Text of Section 15 (4) last sentence:

In the case of Members whose governments are not recognized by the United States, such privileges and immunities need be extended to such representatives … only within the headquarters district, at their residences and offices outside the district, in transit between the district and such residences and offices, and in transit on official business to or from foreign countries.

33 Section 13 (a) provides that visas “shall be granted without charge and as promptly as possible.” The text of the limited visa reproduced from Document E/C.2/386, p. 3 is as follows:

Mr. Jan Hardwick Dessau, whose admission to the United States is based on the following conditions:

(1) That such alien shall proceed directly from the port of entry to New York City and shall remain continuously in that city during his sojourn in the United States within a certain area on Manhattan Island, to wit:

On Manhattan Island, bounded on the north by E. 97th St. and transverse road No. 4; bounded on the west by 9th Avenue, between 28th and 49th Streets, 8th Ave. from 49th Street to Columbus Circle; Central Park West from Columbus Circle to transverse road No. 4; bounded on the south by 28th Street, from 9th Avenue to First Avenue; by 26th St. from First Avenue to East River Drive; bounded on the East by East River Drive, and shall depart therefrom only in connection with departure from the United States.

(2) That such alien shall be in possession of a valid visa or other form of valid authority assuring his entry into the country whence he came or to some other foreign country following his sojourn in the United States Headquarters District;

(3) That upon the expiration or cancellation of any invitation by the United Nations he will depart forthwith from the United States; and

(4) That he will not engage in any activities in the United States outside of his official duties with the United Nations District Headquarters.”

34 See ECOSOC Official Records (16th Session), 743d meeting 07 31, 1953, p. 251254; 745th meeting August 1, 1953, p. 268–275.

35 For full text of this clause see this issue, p. 496, note 31.

36 The relevant Article 26 reads as follows: Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.” 55 American Journal of International Law, p. 1070 (1961) and UN Document A/CONF.20/13, p. 8.

37 Department of State Bulletin, 10 3, 1960 (Vol. 43, No. 1110), p. 521. A similar request was addressed to the Hungarian and Albanian missions to the United Nations. The text of the aidememoire to the Albanian mission was not released. The United States does not recognize the present government of Albania.

38 Ibid. The aide-memoire to the Hungarian mission referred to hostile public statements, denial of human rights and uncooperative attitude toward the UN.

39 Ibid., p. 523. The Soviet note also expressed the expectation that Mr. Khrushchev be given the possibility of traveling between New York and Glen Cove, the seat of the Soviet Mission. It appears that this request was granted.

40 President Eisenhower's statement of September 17, 1960. Department of State Bulletin, 10 3, 1960 (Vol. 43, No. 1110), p. 523.

41 “… When in i960 the Pakistani Government declined to issue a visa to enable an Israeli representative to attend a meeting of the Economic Commission for Asia and the Far East which was to have been held in Karachi the meeting was adjourned and subsequently held in Bangkok.” Jenks, , International Immunities, p. 89.

42 On this subject see Delson, , “Immunity from Taxation on Real Property owned by Delegations to the United Nations,” 49 American Journal of International Law, p. 555557 (1955).

43 The case of Albania will not be considered further as it comes within the ambit of Section 15 concerning representatives of Members whose governments are not recognized by the United States. Insofar as Bulgaria is concerned this restriction applies only to non-diplomatic personnel of the mission.

44 See Contemporary Practice of the United States relating to International Law,” 56 American Journal of International Law, p. 526539 (1962) at p. 534 ff.

45 It is recognized specifically in Article 47 of the Vienna Convention on Diplomatic Relations.

46 A letter from the then Legal Adviser of the Department of State, Mr. Ernest A. Gross, dated May 26, 1948, to the Chairman of Subcommittee No. 6 of the Committee on Foreign Affairs concluded, “(1) The Charter of the United Nations imposes the obligation on member states to grant certain privileges and immunities not conditioned on reciprocity. … (3) The Section 9 proviso in the [International Organizations and Immunities] act relates only to privileges, exemptions, and immunities granted under the International Organizations Immunities Act. Even if the proviso were construed to relate to privileges and immunities under the Convention on the Privileges and Immunities of the United Nations and the proviso were regarded as recognizing a power in the Secretary to enforce reciprocity, it would not be operative since the Convention would prevail; the latter instrument does not provide for the making of any conditions of reciprocity.” House Report No. 2291, p. 16.

47 See p. 502 above.

48 The Legal Adviser of the State Department also concluded: “(4) The headquarters agreement, although it does not provide for making of any requirement of reciprocity in the granting of privileges and immunities by the United States, may empower this Government to require the recall of certain foreign nationals covered by the Convention, if they are regarded as personae non gratae; the agreement prevails over the Convention in case of conflict.” House Report No. 2291, p. 16.

49 Quoted in Cahier, , Etude des Accords de Siège Conclus entre les Organisations Internationales et les Etats où elles Résident, 1959, p. 198, n. 23. The passage appears in the message of the Swiss Federal Council to the Federal Assembly of July 28, 1955, which after noting that reciprocity applies in the case of diplomatic missions in Berne concludes: “En revanche, la réciprocité ne peut jouer à l'égard des Organisations internationales.”

50 House Report No. 2291, p. 16.

51 Section 9 of Public Law 291, entitled “Benefits not conditioned upon reciprocity—Rights reserved” reads as follows:

The privileges, exemptions, and immunities of international organizations and of their officers and employees, and members of their families, suites, and servants, provided for in this title, shall be granted notwithstanding the fact that the similar privileges, exemptions, and immunities granted to a foreign government, its officers, or employees, may be conditioned upon the existence of reciprocity by that foreign government: Provided, That nothing contained in this title shall be construed as precluding the Secretary of State from withdrawing the privileges, exemptions, and immunities herein provided from persons who are nationals of any foreign country on the ground that such country is failing to accord corresponding privileges, exemptions, and immunities to citizens of the United States.

Italics supplied.

52 “Except as provided above in this section and in the General Convention, the United States retains full control and authority over the entry of persons or property into the territory of the United States and the conditions under which persons may remain or reside there.”

53 See p. 490 ff above. From the point of view of the applicable international instruments it has been maintained that prior notification is not a substantive condition for the enjoyment of the privileges which result automatically from the status of the representative or official; as a procedural requirement it can be satisfied by subsequent notification.

54 See Articles 9, 39, and 43 of the Vienna Convention on Diplomatic Relations.

55 This refers to the preceding paragraph which states in part:

In case of abuse of such privileges of residence by any such person in activities in the United States outside his official capacity, it is understood that the privileges referred to in Section 11 shall not be construed to grant him exemption from the laws and regulations of the United States regarding the continued residence of aliens, provided that:

56 Report of the Sixth Committee: Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, October 27, 1947. Document A/427, p. 4, paragraph 7.

57 Thus Article 9 of the Vienna Convention correctly states:

The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata. … In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his function with the mission.

58 “It should be obvious, however, that the principle of persona non grata does not apply under the provisions of this section.” Liang, Yuen-li, “Notes on Legal Questions Concerning the United Nations.” 42 American Journal of International Law, p. 435447 (1948) at p. 445.

59 See p. 495 ff above.

60 Document E/2492, p. 1, paragraph 3. ECOSOC Official Records (16th Session), Annexes, Agenda Item 33.

61 E.g. the representatives of France, p. 254, paragraph 49, and the Soviet Union, p. 268, paragraph 12. ECOSOC Official Records (16th Session), 743d and 745th meetings.

62 See p. 485 above.

63 Thus Article 39, paragraph 2 of the Vienna Convention lays down the well-known rule in the following words:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

64 Section 13 (b), quoted above in note 55, p. 508. Italics supplied.

65 Cahier, , loc. cit., p. 401.

66 United States Mission to the United Nations Press Release 3733, June 16, 1961. For the Czechoslovak version, see The New York, Times, June 17, 1961. According to this, United States intelligence agents tried to hire Nacvalac as a spy and when he refused, the United States took action against him. See also State Department Press Release 415, June 20, 1961, and United States Mission Release 3734 of the same date.

67 The New York Times, June 18, 20, 21, and 22, 1961. The text of the notes of June 16 and 19, 1961, to the Secretariat of the United Nations was released by the mission.

68 Note to the Secretary-General of the United Nations. United States Mission to the United Nations Press Release 3734, June 20, 1961.

69 United States Mission to the United Nations Press Release 3735, June 21, 1961.

70 This point was made in the Czechoslovak note of June 19, 1961, to the Secretariat of the United Nations.

71 When leaving the United States on June 22, Mr. Nacvalac made a statement in which he declared:

Upon the instructions of my Government I leave this country for reasons of gross pressure and dictate on the part of the United States Government which contrary to the Agreement on the United Nations Headquarters unilaterally decided to revoke my privileges belonging to me as to a member of the Permanent Mission of my country and threatened me by a forcible action if I do not leave this country without delay. … My forcible expulsion from this country is a direct consequence of my refusal to become a traitor, which was pointed out by the representatives of the United States espionage institutions.

He also asserted “that Mr. Hammarskjöld, who personally took this case in his hands, as well as the Secretariat of the United Nations, did not take any measures against this arbitrariness of die United States Government.” Text released by the Permanent Mission of the Czechoslovak Socialist Republic to the United Nations.

72 Section 11 of the General Convention reads as follows: “Representatives of Members … shall, while exercising their functions … enjoy the following privileges and immunities: (a) immunity from personal arrest or detention. …”

73 House Report No. 2291, p. 21.

74 Ibid., p. 20.

75 Switzerland recognized the extraterritoriality of the International Labor Organization. Jenks, , loc. cit., p. 27.

76 Jenks, considers as one of the foundations of the immunities of international organizations that they “should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented.” Loc. cit., p. 17.

77 Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, April 11, 1949; I.C.J. Reports 1949, p. 179.

78 Introduction to the Annual Report of the Secretary-General on the Work, of the Organization 16 June 1960–15 June 1961. General Assembly Official Records (16th Session), Supplement lA, p. 1. Reproduced in International Organization, Autumn 1961 (Vol. 15, No. 4), p. 549563.

79 For the difficulties which the gathering storm of World War II created for the League of Nations and the International Labor Organization in 1939–1940, see Jenks, , loc. cit., p. 2729, and the same author, The Headquarters of International Institutions (London: Royal Institute of International Affairs, 1945), p. 48—49.

1 Professor of International Law and Organization at the Fletcher School of Law and Diplomacy and is a member of the Board of Editors of this journal.

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