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"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 Immuni-, ties 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

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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 Interna tional 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

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States, in its adherence to the Convention, introduced the element of reciprocity in a reservation, other States might then be led to take similar action. Such a course of developments would of necessity undermine the basic purpose and utility of the Convention.

Finally, it may be pointed out that section 26 of the headquarters agreement between the United States and the United Nations (Public Law 357, 80th Cong.) provides as follows:

The provisions of this agreement shall be complementary to the provisions of the General Convention. Insofar as any provision of this agreement and any provisions of the General Convention relate to the same subject matter, the two provisions shall, wherever possible, be treated as complementary, 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 this agreement shall prevail.

This provision of the headquarters agreement makes clear that in any case of conflict, the headquarters agreement shall be controlling over the Convention. Section 15 of the headquarters agreement provides as follows:

“(1) Every person designated by a member as the principal resident representative to the United Nations of such member or as a resident representative with the rank of ambassador or minister plenipotentiary;

(2) Such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the member concerned;

"(3) Every person designated by a member of a specialized agency, as defined in article 57, paragraph 2, of the Charter, as its principal resident representative, with the rank of ambassador or minister plenipotentiary, at the headquarters of such agency in the United States; and

“(4) Such other principal resident representatives of members to a specialized agency and such resident members of the staffs of representatives to a specialized agency as may be agreed upon between the principal executive officer of the specialized agency, the Government of the United States and the government of the member concerned, shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it. In the case of members whose governments are not recognized by the United States, such privileges and immunities need be extended to such representatives, or persons on the staffs of 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.”

Under this provision the representatives of member states and certain members of the staffs of such representatives shall be entitled in the United States to the same privileges and immunities which the United States accords to diplomatic envoys accredited to it, "subject to corresponding conditions and obligations." The background in the negotiation of section 15 of the headquarters agreement indicates that the phrase "subject to corresponding conditions and obligations” was inserted by way of compromise to meet a desire on the part of the United States that persons covered by section 15 were not to receive privileges and immunities broader than those accorded to diplomatic envoys accredited to the President of the United States, and that, like diplomatic envoys, such persons might be found personae non gratae and made subject to recall. The negotiating background does not indicate that the quoted phrase was inserted for the purpose of permitting the United States to make the privileges and immunities provided for in section 15 dependent upon reciprocity. In the case of representatives of members, and resident members of their staffs, the United States may be authorized under the headquarters agreement to bring about expulsion of personnel in cases where such action appears to be required. Except for this drastic weapon which the United States may under some circumstances use, the headquarters agreement does not provide for the canceling of privileges and immunities.

To summarize, my conclusions may be stated as follows:

(1) The Charter of the United Nations imposes the obligation on member states to grant certain privileges and immunities not conditioned on reciprocity.

(2) The International Organizations Immunities Act restricts the power of the Secretary of State, in managing United States foreign relations, to enforce conditions of reciprocity in the granting of privileges and immunities. To the extent that the act does not restrict, the Secretary's power, it nevertheless makes no affirmative grant of power and merely leaves the Secretary with such authority as he may possess apart from the act and in view of the effect of the Charter of the United Nations.

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(3) The section 9 proviso in the 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.

(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.

I apologize for the length of this letter but thought a fairly complete analysis might be of assistance to you. If you or your staff wish to discuss the matter with me, I am of course entirely at your disposal. Sincerely yours,

ERNEST A. GROSS,

The Legal Adviser.

DEPARTMENT OF STATE,

Washington, March 17, 1948. The Honorable JOSEPH W. MARTIN, Jr.,

Speaker of the House of Representatives. DEAR MR. SPEAKER: I am transmitting herewith a draft of a proposed bill "To amend the United Nations Participation Act of 1945" which the Department recommends be enacted into law.

The primary purpose of the proposed amendments to the United Nations Participation Act of 1945 is to provide greater flexibility in the United States representation in the Security Council and to provide assistance to our principal Representative to the United Nations. The nature and increased volume of work of the United States Mission to the United Nations and the consequent demands upon the time and energy of the United States Representative make necessary the provisions of the proposed amendments as outlined in the enclosed memorandum.

A similar communication is being sent to the President pro tempore, United States Senate.

The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this proposal to the Congress. Faithfully yours,

G. C. MARSHALL,

A BILL To amend the United Nations Participation Act of 1945 to provide for the appoint

ment of representatives of the United States in the organs and agencies of the United Nations, and to make other provision with respect to the participation of the United States in such organization

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the United Nations Participation Act of 1945 be amended to read:

"SEC. 2. (a) The President, by and with the advice and consent of the Senate, shall appoint a representative of the United States (at the seat of the United Nations who shall have the rank and status of envoy extraordinary and ambassador plenipotentiary, shall receive annual compensation of $20,000, and shall held office at the pleasure of the President. Such representative shall represent the United States in the Security Council of the United Nations and shall perform such other functions in connection with the participation of the United States in the United Nations as the President may from time to time direct.] and a deputy representative to the United Nations who shall have the rank and status of ambassador extraordinary and plenipotentiary and shall hold office at the pleasure of the President. The representative shall receive compensation at the rate of $25,000 per annum and the deputy representative shall receive compensation at the rate of $20,000 per annum. Such representative and deputy representative shall represent the United States in the Security Council of the United Nations and may serve ex officio as United States representative on any organ, commission, or other body of the United Nations and shall perform such other functions in connection with the participation of the United States in the United Nations as the President may from time to time direct.

(b) The President, by and with the advice and consent of the Senate, shall appoint [a] an additional deputy representative of the United States [to] in the Security Council who [shall have the rank and status of envoy extraordinary and minister plenipotentiary,] shall receive annual compensation of $12,000, and shall hold office at the pleasure of the President. Such deputy representative sball represent the United States in the Security Council of the United Nations in the event of the absence or disability of the representative or deputy representative of the United States to the United Nations.

(c) The President, by and with the advice and consent of the Senate, shall designate from time to time to attend a specified session or specified sessions of the General Assembly of the United Nations not to exceed five representatives of the United States and such number of alternates as he may determine consistent with the rules of procedure of the General Assembly. One of the representatives shall be designated as the senior representative. Such representatives and alternates shall each be entitled to receive compensation at the rate of $12,000 per annum for such period as the President may specify, except that no member of the Senate or House of Representatives or officer of the United States who is designated under this subsection as a representative of the United States or as an alternate to attend any specified session or specified sessions of the General Assembly shall be entitled to receive such compensation.

(d) The President may also appoint from time to time such other persons as he may deem necessary to represent the United States in the organs and agencies of the United Nations at such salaries, not to exceed $12,000 each per annum, as he shall determine, but the representative of the United States in the Economic and Social Council and in the Trusteeship Council of the United Nations shall be appointed only by and with the advice and consent of the Senate, except that the President may, without the advice and consent of the Senate, designate any officer of the United States to act, without additional compensation, as the representative of the United States in either such Council (A) at any specified (meeting] session thereof where the position is vacant or in the absence or disability of the regular representative, or (B) in connection with a specified subject matter at any specified (meeting] session of either such Council in lieu of the regular representative. The President may designate any officer of the Department of State, whose appointment is subject to confirmation by the Senate, to act, without additional compensation, for temporary periods as the representative of the United States in the Security Council of the United Nations in the absence or disability of the representative and deputy representatives appointed under SEC. 2 (a) and (b) or in lieu of such representatives in connection with a specified subject matter. The advice and consent of the Senate shall (also] be required for the appointment by the President of the representative of the United States in any commission that may be formed by the United Nations with respect to atomic energy. or in any other commission of the United Nations to which the United States is entitled to appoint a representative]

(e) Nothing contained in this section shall preclude the President or the Secretary of State, at the direction of the President, from representing the United States at any meeting or session of any organ or agency of the United Nations.

Sec. 3. The representatives provided for in section 2 hereof, when representing the United States in the respective organs and agencies of the United Nations, shall, at all times, act in accordance with the instructions of the President transmitted by the Secretary of State unless other means of transmission is directed by the President, and such representatives shall, in accordance with such instructions, cast any and all votes under the Charter of the United Nations.

SEC. 4. The President shall, from time to time as occasion may require, but not less than once each year, make reports to the Congress of the activities of the United Nations and of the participation of the United States therein. He shall make special current reports on decisions of the Security Council to take enforcement measures under the provisions of the Charter of the United Nations, and on the participation therein under his instructions, of the representative of the United States.

SEC. 5. (a) Notwithstanding the provisions of any other law, whenever the United tSates is called upon by the Security Council to apply measures which said Council has decided, pursuant to article 41 of said Charter, are to be employed to give effect to its decisions under said Charter, the President may, to the extent necessary to apply such measures, through any agency which he may designate, and under such orders, rules, and regulations as may be prescribed

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