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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.
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 qu tion 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. A provision to that effect is incorporated in the attached draft resolution.
The special convention which Senator Vandenberg mentioned in the next to last paragraph of the afore-quoted statement is a reference to a proposed agreement between the United Nations and the United States concerning the administration and control of the area in the United State selected for the permanent headquarters of the United Nations. That agreement is now in the process of being negotiated between representatives of the United Nations and representatives of this Government. When agreement has been reached the text will be submitted to the Congress for its approval. This draft agreement, in its present form, provides, among other things, for extending diplomatic privileges and immunities to principal resident representatives of member states and such resident members of their staffs as may be agreed upon between the Secretary-General, the United States, and the government of the member concerned.
The enclosed Convention extends full diplomatic privileges and immunities only to the Secretary-General of the United Nations and the Assistant Secretaries-General (sec. 19). Lesser officers of the United Nations (sec. 18), experts on missions for the United Nations (sec. 22), and representatives of members other than those covered in the above-mentioned site Convention (sec. 11), are not to receive full diplomatic privileges and immunities. The immunities which these officers, experts, and representatives are to receive are extended to them while they are performing their official functions.
Section 11 lists in paragraphs (a) through (f) certain specific privileges and immunities which representatives of member states are to enjoy. Paragraph (S) states that they are to have "such other privileges, immunities, and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise 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), an does not provide for additional privileges in respect of 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.
Article VII of the Convention authorizes the United Nations to issue laissezpasser to its officials. Section 24 of article VII provides :
“These laissez-passer shall be recognized and accepted as valid travel documents by the authorities of members, taking into account the provisions of section 25."
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.
The fact that the United Nations has selected the United States for its permanent headquarters may cause certain specialized agencies to make their permanent headquarters in the United States. When the decision of those agencies as to their permanent headquarters is known, it may be necessary for the Department of State to ask the Congress to give its approval to a further agreement defining the privileges and immunities of those organizations insofar as it may be advisable to grant them privileges and immunities beyond those provided in the International Organizations Immunities Act. The Department hopes that extensive amendment of Public Law 291 can be deferred until such time as the need for privileges and immunities on the part of international organizations throughout the world shall have become clarified. In this connection, you may be interested to know that the Secretary General of the United Nations has been instructed to make a study of the privileges and immunities of specialized agencies and to open negotiations with them in order to systematize their privileges and immunities.
Since the United Nations has decided to make its permanent headquarters in the United States and is now considering plans for the construction of its buildings, the Department of State believes that approval of the enclosed convention is a matter of some urgency.
The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this report. A similar letter is being sent to the Speaker of the House of Representatives. Sincerely yours,
G. C. MARSHALL,
DEPARTMENT OF STATE,
Washington, May 7, 1948. Ti The Honorable CHARLES A. EATON,
Chairman, House Committee on Foreign Affairs, House of Representatives. DEAR MR. EATON: In connection with the consideration by your committee of Senate Joint Resolution 136, authorizing the President to accept on behalf of the Government of the United States the Convention on Privileges and Immunities of the United Nations *
I would like to express once again the hope that Pre the committee will give the most careful consideration to the desirability of ap
proving the pending resolution without the reservation now attached thereto 1 by the Senate with respect to income-tax immunity. You will recall that section
18 (b) of he Convention provides that officials of the United Nations shall be exempt from taxation on the salaries and emoluments paid to them by the United Nations, and that the Senate, in approving the joint resolution, amended it to withhold the application of this section from United States nationals.
I fully appreciate the reluctance of the Senate to relieve any group enjoying pril the benefits of United States citizenship from the obligation to contribute to the 31 financial support of their Government. At the same time
there are in up my opinion certain compelling reasons for not including in the Senate joint resoluit. tion a reservation of the type in question. upb 1. At two consecutive regular sessions, the General Assembly of the United jfin Nations (the United States abstaining) has unanimously requested all members diti to provide such tax exemption in order to ensure equality of tax treatment is among the staff in a manner which is equitable among members. Since it is the in policy of the United States to give its full support to the United Nations, it is eps believed that this Government should comply with such requests of the General
Assembly whenever it can do so without prejudice to the vital interests of the lal United States.
2. Only two other states—New Zealand and Canada-have made such a reservael dtion. Eighteen members, including the United Kingdom and France, have ac; of iceded to the Convention without reservation. Nationals of only two members,
United States and Canada, are presently subject to taxes on their income from the United Nations.
3. In order to afford equality of treatment to all members of the secretariat staff, the General Assembly has in the past authorized the Secretary-General to reimburse employees for taxes which they have paid to their national governments on income received from the United Nations. The cost of such tax reimbursements to the United Nations is approximately $500,000 annually, of which about $450,000 represents payments to United States nationals. This charge, of course, is drawn from the general budget and is apportioned among all member states. Despite the dissatisfaction of many members at having to contribute to taxes paid by United States nationals to the United States Government, the Assembly has agreed to continue the tax-reimbursement system for one more year with a clear warning that it may be terminated after 1948.
4. When the situation is reviewed by the General Assembly next fall, there is likely to be a demand that members who do not grant exemption to their nationals make supplemental contributions to the United Nations budget in order to meet the tax-reimbursement payments. If this were done, the result would be to increase our share of the total United Nations budget and to set the stage for the doctrine that members might be permitted to vary their contributions on the basis of the particular activities they might choose to support.
5. If, alternatively, the tax reimbursement plan is abandoned, United States nationals employed by the secretariat would be earning a net salary substantially lower than their foreign colleagues. As a result, it would be difficult to recruit well-qualified American citizens.
6. The Department is convinced that the best ultimate solution to this difficult problem lies in the adoption of a staff-contributions plan under which United Nations employees would make contributions from their salaries to the United Nations, based roughly on the income-tax structure in the member nation where the employee is situated (in most cases the United States). The effectiveness of such a scheme would depend on the willingness of member nations which may not wish to grant tax exemption at least to amend provisions of their tax laws de signed to avoid double taxation so as to allow a credit for contributions made under the scheme.
Approval by the Congress of the pending resolution without a reservation with respect to income taxes would create the best possible atmosphere in which to work out a satisfactory staff contributions plan avoiding the creation of a taxprivileged group. It would also reaffirm the willingness of the United States to cooperate fully in carrying out the declared policy of the General Assembly.
It is therefore the hope of the Department of State that the Congress will approve the pending resolution without reservation with respect to income tax. Officials of this Department will be glad to furnish further information on the subject at the convenience of the committee. Faithfully yours,
GEORGE C. MARSHALL,
Secretary of State.
Letter from the legal adviser of the Department of State to the Honorable Lawrence H. Smith, chairman, Subcommittee No. 6 on International Organizations and International Law of the Committee on Foreign Affairs.
APRIL 29, 1948. My Dear Mr. Smith: In your letter to me dated April 16, 1948, you referred to the relationship between the proviso contained in section 9 of the International Organizations Immunities Act (Public Law 291, 79th Cong., approved December 29, 1945) and the provisions of Senate Joint Resolution 136 (80th Cong., 1st sess). Your letter inquired: “to what extent would section 9 of the act be applicable to the privileges and immunities accorded to the various categories of persons covered by the Convention?" (the Convention on the Privileges and Immunities of the United Nations).
In the Charter of the United Nations, the United States along with the other members undertook to grant certain privileges and immunities to the United Naitions organization, to its officials, and to the representatives of members. Artcle 105 of the Charter provides, in part:
“1. The Organization shall enjoy in the territory of each of its members such privileges and immunities as are necessary for the fulfillment of its purposes.
"2. 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."
In the discussions at San Francisco on the drafting of the Charter, Committee IV/2 considered the question of United Nations privileges and immunities. The committee gave consideration at that time to particular privileges and immunities which should be accorded by member states, and decided not to provide for these by specific mention in the Charter article, in order not to exclude other privileges and immunities. The committee then stated in its report to Commission IV: “The terms, privileges, and immunities indicate in a general way all that could be considered necessary to the realization of the purposes of the Organization, to the free functioning of its organs and to the independent exercise of the functions and duties of their officials
The committee also reported its definite and clear intention that the provisions of paragraphs 1 and 2 of article 105 should operate as soon as the Charter became effective, and should not be postponed in their operation to the time when detailed provisions on privileges and immunities should be worked out under paragraph 3 of the article. That paragraph provides:
"3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this article or may propose conventions to the members of the United Nations for this purpose.
Recommendations of the Assembly or draft conventions proposed by that body, containing provisions on the privileges and immunities of the United Nations, would, of course, be entitled to great weight as expressing privileges and immunities which are covered by the Charter obligations contained in paragraphs 1 and 2 of article 105. Such recommendations or draft conventions might not necessarily express the full extent of the privileges and immunities called for by paragraphs 1 and 2 of article 105. The question whether a particular privilege or immunity was required by the Charter to be granted could perhaps in the last analysis be determined only through interpretation of the Charter in a specific case, and in such an instance the International Court of Justice might be the appropriate agency for rendering a definitive decision.
It seems clear that the Charter of the United Nations does not permit the imposition of conditions of reciprocity on the granting of privileges and immunities under article 105. Indeed the purpose of the Charter in respect of article 105 is to provide for the granting unconditionally by member states of certain privileges and immunities to the United Nations so that it may function effectively as a world organization untrammelled in its operation by national requirements of reciprocity or national measures of retaliation among states.
As stated in the report of the Senate Committee on Foreign Relations (No. 559, 80th Cong., 1st sess., July 15, 1947), the International Organizations Immunities Act was passed for the general purpose of defining the privileges, exemptions, and immunities to be accorded to international organizations in the United States and their officers, employees, and representatives of member governments. At the time the act became law, such international organizations as UNRRA, FAO of the United Nations, and the Pan American Union were already in operation in the United States. It was contemplated that the act would take care of the requirements of such agencies and it was also hoped that it would cover the principal requirements of the United Nations, although it was too soon to know just what these requirements would be since the first session of the General Assembly of the United Nations had not yet been held.”
Thus, the International Organizations Immunities Act, insofar as it concerns the United Nations, was a step taken by the United States on its own initiative to implement article 105 of the Charter. Since this step was taken before any consideration by the General Assembly of the privileges and immunities question and before the gaining of any experience in the field of United Nations' privileges and immunities, it was to be anticipated that the arrangements eventually worked out giving full effect to article 105 might differ in some respects from the arrangements provided by the International Organizations Immunities Act. In the absence of positive indications in the act, it should not, of course be inferred that the Congress in passing this legislation provided for requirements of reciprocity which would be inconcistent with the Charter obligations of the United States And indeed an examination of the International Organizations Immunities Act discloses that the legislation does not provide for any such requirements.
Section 9 of that act specifies that the privileges and immunities conferred in the preceding sections of the act should be granted despite the fact that the international organizations concerned might not be in a position themselves to grant priv
ileges and immunities on a reciprocal basis. To some extent, therefore, the act restricts the right of the secretary of State to enforce reciprocity in the diplomatic relations of the United States, a right of the Secretary which appears not to be based on any act or acts of Congress but rather to be an executive power stemming from the functions of the executive branch of the Government in its foreign relations.
Section 9 of the International Organizations Immunities Act contains a proviso:
“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."
This so-called reciprocity clause does not require the Secretary of State to enforce any conditions of reciprocity in the administration of the Act, nor does it grant any authority to the Secretary to withdraw privileges, exemptions, or immunities from foreign nationals on the ground that their country fails to grant corresponding privileges, exemptions, and immunities to American citizens. The clause instead provides that nothing in the act shall preclude the Secretary from using his discretion to exercise any authority which he may possess apart from the act to withdraw privileges, exemptions, and immunities from foreign nationals of a country that fails to grant corresponding privileges, exemptions, and immunities to American citizens. The effect of the proviso is therefore only that the Secretary shall not be precluded from enforcing reciprocity, in certain cases, against foreign nationals—which he may have other authority to do-merely because they are connected with an international organization and are granted privileges, exemptions and immunities under the International Organizations Immunities Act. As we have seen earlier, the International Organizations Immunities Act to some extent restricts the freedom of the Secretary of State to enforce reciprocity; the section 9 proviso removes from the restrictive effect of the act a narrow class of
It may be, however, that in this narrow class of cases the Secretary of State has in fact no authority to impose reciprocity, in view of the provisions of the United Nations Charter.
As will be seen from the use of the phrase "privileges, exemptions, and immunities herein provided,” the privileges, exemptions, and immunities which the Secretary is not precluded by the act from withdrawing from certain foreign nationals are those provided in the International Organizations Immunities Act. The reciprocity clause does not refer to privileges, exemptions, or immunities provided in any other law of the United States. It is my opinion, therefore, that the proviso contained in section 9 of the International Organizations Immunities Act would not,
in any event, be applicable to the privileges and immunities provided for in the Convention on the Privileges and Immunities of the United Nations, unless the proviso were made applicable in the legislation authorizing the President to accept the Convention and such a reservation to the Convention came into force as between the United States and the United Nations.
Senate Joint Resolution 136 provides, in part:
“That, insofar as any provisions of this Convention and the International Organizations Immunities Act
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
The above-quoted provision would not seem to make section 9 of the International Organizations Immunities Act applicable in construing the Convention. If, however, the provision were held to have that effect, the result would be that the Secretary of State would be left free to exercise such executive authority as he possessed to enforce reciprocity in the same manner that the International Organizations Immunities Act left him free to do so. The Convention does not admit of reciprocity requirements. Accordingly, its provisions would prevail over those of the section 9 proviso in the Immunities Act if the proviso were interpreted as recognizing a power in the Secretary to enforce reciprocity. In view of what has been said earlier concerning the effect of the Charter of the United Nations, the proviso might not even be so interpreted.
Twenty nations, including France and Britain, have already adhered to the Convention without making any reservation as to reciprocity. If the United