Problems of World War II and Its Aftermath

wise than as part of their personal baggage) or from excise duties or sales taxes.' It is the view of the Department of State that this paragraph provides only for privileges with respect to matters other than those specified in the foregoing paragraphs (a) through (f), and does not provide for additional privileges in respect to such matters. Thus, immunity from legal process is confined to the limited immunity granted by paragraph (a) and could not be extended under paragraph (g) to provide the complete immunity which is enjoyed by diplomatic envoys."

Prudence suggests that the enabling joint resolution embody this clarification. Also the official text apparently errs in paragraph 11(g), in referring to excise taxes as "exercise taxes."

Question: Does the Department of State interpose any objection to the clarifying reservation on this point embodied in the subcommittee draft?

It should be noted that 11(d) of the convention is narrower than the corresponding article of the act with respect to immigration, as the former applies to "representatives and their spouses," while the latter includes "family, attendants, servants, and employees," and these refer not only to those of representatives, but also to officers and employees. The act therefore gives immigration exemptions even to employees of employees of international organizations. This may be the proper time to require of the State Department a full explanation of this, in the light of the requirements of national security against uncontrolled infiltration by agents of governments more or less hostile to this Government.

Article V-Status of officials.-Article V, establishing the status of officials of the United Nations, the functionaries of the Organization itself as distinguished from delegations thereto, involves more complex questions.

Section 17 gives the Secretary General of the United Nations the authority to designate the persons entitled to such immunity. The status thus gained would no longer be susceptible of withdrawal by action of this Government alone. Section 18 lists special types of immunity to be given such officials. It does not except nationals of the United States. The statute now controlling specifically excludes American citizens from the immunities granted. The difference is of moment particularly with respect to section 18 (b) and (c), granting tax immunity and immunity from national service. It should be noted that the taximmunity provision is broad enough to apply to State and local taxes on salaries and emoluments earned by officials in their status as such. The provision would thus enlarge the tax immunity of aliens serving as United Nations officials in the United States and create a tax immunity where none existed before for American nationals in that status.

Insofar as this exemption from taxation would apply to American citizens employed as officials of the United Nations, a reservation was made by Senator Vandenberg, as a delegate to the Assembly, at the time of proposal:

"I rise only to make the position of the delegation of the United States perfectly plain in regard to the reports of the fifth and sixth Committees. We have reserved our position in respect of tax immunities in regard to the reports of both Committees. The Constitution of the United States gives the American Congress sole power to exempt American citizens from taxation. ***"

In his letter to the Speaker, dated May 12, 1947, the Secretary of State states the argument for affirmative action:

"The General Assembly of the United Nations has considered whether or not officials of international organizations, regardless of their nationality and place of residence, should be exempt from national taxation. The Assembly concluded at its first session in London that 'there is no alternative to the proposition that exemption from national taxation for salaries and allowances paid by the Organization is indispensable to the achievement of equity among its members and equality among its personnel.' This proposition was accepted unanimously, the United States delegation abstaining. The convention which is submitted herewith was also approved unanimously by the General Assembly, although the United States delegation reserved its position with respect to the question of tax immunity as noted above.

"In view of the general policy of the United States, to give its full support to the United Nations, it is the opinion of the Department of State that this Government should comply with recommendations of the General Assembly wherever it

can do so without prejudice to overriding considerations affecting the vital interests of the United States. For this reason the Department hopes that the Congress will not insist on a reservation that tax immunity should be inapplicable to United States nationals."

A reservation covering this point is included in the subcommittee draft of the enabling resolution.

Insofar as exemption from national service might apply to American citizens, Senator Vandenberg, as a delegate, reserved the position of the United States in the Assembly when the convention was drawn up:

"The delegation of the United States also reserves its position in respect of national service exemptions under the general convention reported by the sixth Committee. This again is due to the fact that the Constitution of the United States permits no authority other than the American Congress to deal with this matter, and we are not in a position to prejudge that ultimate consideration." In his letter of May 12, 1947, the Secretary of State has advised that the position be reserved likewise in the enabling joint resolution:

"With respect to section 18 (c) of the convention which would give officials of the United Nations immunity from national-service obligations, I believe it would be well for this Government to reserve its position. Under the terms of the Selective Training and Service Act of 1940 aliens attached to foreign missions in the United States were exempted from registration under certain circumstances. Since the Selective Training and Service Act has now expired, the question at this time of immunity from national service for officials of the international organizations is not of immediate concern. I think it would be well for this Government however, to reserve its position as to United States nationals and aliens who have declared their intention of becoming citizens, so that if in the future it becomes necessary to provide again for national service we will be free to determine at that time the extent to which national-service immunities should be extended to Americans who are employed by the United Nations * *

Section 19, which goes all the way in affirming the diplomatic status of the top officials of the United Nations, the Secretary General, and the Assistant Secretaries General, would clarify the ambiguity of their present situation, in which they are endowed with most of the attributes of that status without having the status specified in unequivocal language. The provision appears perfectly appropriate, indeed necessary, to establishing their functions on a proper level. Sections 20 and 21 simply clarify the basis of diplomatic immunity and add a safeguarding charge of responsibility to prevent abuse of the status. Questions:

Who are the "officials" of the United Nations to be, by category?

What will prevent the Secretary-General from including all employees as "officials"? Is this intended?

In effect the terms would give the Secretary-General the power to exempt American nationals from taxation merely by a finding that they are officials. Is this correct? Can it be constitutionally justified?

Precisely how would a reservation on the tax immunity of American nationals working for the United Nations hurt the effectiveness of that Organization? Article VI-Status of experts.-Article VI extends the principles of immunities to safeguard independence of functions to United Nations functionaries in the status of experts performing missions. The provisions are consistent with the immunities established already.

Article VII-United Nations credentials.-Article VII, setting up a particular type of credential to be used be officials of the United Nations when traveling, should be read in the light of the observations made in the Secretary of State's letter of May 12, 1947, to the Speaker:

"This language does not authorize or require, and is not interpreted by the Department of State as authorizing or requiring the United Nations or any member state to issue or accept a document which is a substitute for a passport or other documentation of nationality: it provides only for a certificate attesting to the United Nations affiliation of the bearer in respect to travel and will be accepted by the United States as such a document. Thus article VII, if approved, will not amend or modify existing provisions of law with respect to the requirement or issuance of passports or of other documentation evidencing nationality of citizens or aliens."

A reservation clarifying this point might well be added to the joint resolution authorizing acceptance. A further point of possible clarification is the language in section 25, which says, concerning holders of United Nations laissez-passer: “*** such persons shall be granted facilities for speedy travel."

This should be understood not as an obligation upon the Government to furnish facilities but simply as an obligation not to impede their travel.

Question: Does the Department of State have any objection to the proposed reservations on these points, which are included in the subcommittee draft?

Article VIII-Settlement of disputes.-Article VIII refers to two items. One reserves as a piece of further business for the United Nations the mode of redress of disputes in which the immunity of the United Nations or its agents in a factor impeding settlement. The second reserves to the International Court of Justice jurisdiction in questions relating to interpretation of the convention. This provision has been placed, in the parallel analysis above, in juxtaposition with section 1 of the International Organizations Immunities Act, not because the respective provisions are cognate but because their differences point up the fundamental contrast between the existing statute and the convention. In the case of the former, relief from any difficulty arising lies within the power of the President, who, with respect to the organizations to be granted privileges under the act, may deprive as well as bestow. Under the convention, however, the statutes of the United Nations and its agents enters into the field of international law, and the relief from grievance becomes a matter ultimately to be settled justiciable only before an international tribunal. This is the all-inclusive development contemplated in the convention.

ACCOMPANYING DOCUMENTS

The following are attached: (a) Draft joint resolution forwarded by the Department of State; (b) draft joint resolution embodying reservations as to sections 11(g), 18(b), 18(c), 24, and 25; the convention on the privileges and immunities of the United Nations.

STATE DEPARTMENT DRAFT RESOLUTION ON CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS

Whereas on June 26, 1945, the President signed the Charter of the United Nations and on August 8, 1945, by and with the advice and consent of the Senate of the United States, ratified the same; and

Whereas articles 104 and 105 of the Charter provide that the United Nations shall enjoy in the territory of each of its members such legal capacity, privileges, and immunities as are necessary for the exercise of its functions and the fulfillment of its purposes; and

Whereas the General Assembly by a resolution adopted on February 13, 1946, approved and proposed for accession by each member of the United Nations a convention on the privileges and immunities of the United Nations;

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the President is here by authorized to accept on behalf of the Government of the United States the convention on the privileges and immunities of the United Nations, a copy of which is appended and made a part hereof, and to issue a proclamation setting forth that the aforesaid instrument is accepted by the Government of the United States of America in accordance with its law and shall have full force and effect in the United States and its Territories and possessions except that the United States reserves its position with respect to section 18 (c) regarding immunity from national-service obligations insofar as that section may apply to United States nationals or persons who have declared their intention to become citizens of the United States. That insofar as any provisions of this convention and the International Organizations Immunities Act (59 Stat. 669), as applied to the United Nations relate to the same matter, the two provisions shall wherever possible be treated as complementary to each other so that both provisions shall be applicable and neither shall narrow the effect of the other; but in any case of absolute conflict, the provisions of the convention shall prevail.

SUBCOMMITTEE DRAFT RESOLUTION ON CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS

Whereas on June 26, 1945, the President signed the Charter of the United Nations and on August 8, 1945, by and with the advice and consent of the Senate of the United States, ratified the same; and

11 See S.J. Res. 136, 80th Cong., 1st sess., as introduced in the Senate on June 20, 1947, p. 336.

Whereas Articles 104 and 105 of the Charter provided that the United Nations shall enjoy in the territory of each of its members such legal capacity, privileges, and immunities as are necessary for the exercise of its functions and the fulfillment of its purposes; and

(b) With respect to section 18(b), that the provision shall not have the effect of exempting nations of the United States employed by the United Nations and coming within the categories of officials thereof from taxes on income laid under the authority of the United States Government or any State of the United States or municipality thereof.

(c) With respect to section 18 (c), that the United States reserves its position regarding immunity from national-service obligations insofar as that section may apply to United States nationals or persons who have declared their intention to become citizens of the United States.

(d) With respect to section 24, that it is understood that this provision does not authorize or require the United Nations or any member state to issue or accept a document which is a substitute for a passport or other documentation of nationality.

(e) With respect to section 25, that this provision does not obligate the Government of the United States to furnish facilities for travel, but rather is to be interpreted only as obligating the Government of the United States not to impede the travel of the individuals concerned.

That insofar as any provisions of this convention and the International Organizations Immunities Act (59 Stat. 669), as applied to the United Nations relate to the same matter, the two provisions shall, wherever possible, be treated as complementary to each other so that both provisions shall be applicable and neither shall narrow the effect of the other: but in any case of absolute conflict, the provisions of the convention shall prevail.

CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON FEBRUARY 13, 1946 12

Presidential Proclamation of the Convention on the Privileges and Immunities of the United Nations, Adopted by the General Assembly of the United Nations on February 13, 1946

Adopted by the General Assembly of the United Nations February 13, 1946; Ratification advised by the Senate of the United States of America, subject to reservations, March 19, 1970;

Ratified by the President of the United States of America, subject to said reservations, April 15, 1970;

12 The text appears in the following Presidential Proclamation.

13 Text from U.S. Department of State, "United States Treaties and Other International Agreements", vol 21, part 2: 1970 (Washington, 1971), pp. 1418-43. The State Department's footnotes have been retained, except that they are renumbered and certain abbreviations have been spelled out.

Accession of the United States of America deposited with the Secretary-General of the United Nations April 29, 1970;

Proclaimed by the President of the United States of America July 9, 1970;

Entered into force with respect to the United States of America April 29, 1970.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

CONSIDERING THAT:

A PROCLAMATION

The Convention on the Privileges and Immunities of the United Nations was adopted by the General Assembly of the United Nations on February 13, 1946, the text of which is as follows:

CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON 13 FEBRUARY 1946

Whereas Article 104 of the Charter of the United Nations [4] provides that the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes and

Whereas Article 105 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes and that representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. Consequently the General Assembly by a Resolution adopted on the 13 February 1946, approved the following Convention and proposed it for accession by each Member of the United Nations.

ARTICLE I-JURIDICAL PERSONALITY

SECTION 1. The United Nations shall possess juridical personality.

It shall have the capacity:

(a) to contract;

(b) to acquire and dispose of immovable and movable property;
(c) to institute legal proceedings.

ARTICLE II-PROPERTY, FUNDS AND ASSETS

SECTION 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

SECTION 3. The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.

SECTION. 4. The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.

SECTION 5. Without being restricted by financial controls, regulations or moratoria of any kind,

(a) the United Nations may hold funds, gold or currency of any kind and operate accounts in any currency;

(b) the United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it into any other currency.

SECTION 6. In exercising its rights under Section 5 above, the United Nations shall pay due regard to any representations made by the Government of any Member insofar as it is considered that effect can be given to such representations without detriment to the interests of the United Nations.

14 Treaty Series 993; 59 Stat. 1053.

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Problems of World War II and Its Aftermath, المجلد 1،الجزء 1