Foreign Relations of the United States, 1949, Eastern Europe; The Soviet Union, Volume V

861.20211 Gubitchev, Valentine A./9–2849

[Translation]

The Embassy of the Soviet Union to the Department of State

No. 118

The Embassy of the Union of Soviet Socialist Republics has the honor, upon instructions of the Government of the USSR, to make the following statement to the Department of State:

On April 30, 1949, the Embassy, upon instructions of the Soviet Government, addressed to the Department of State note no. 49 concerning the unlawful arrest and prosecution by the American authorities of a Soviet diplomat, V. A. Gubichev, a Third Secretary of the Ministry of Foreign Affairs of the Union of SSE. In spite of the fact that more than 4 months have elapsed since then, the Department of State has not yet answered the Embassy’s note. In the meantime V, A. Gubichev has been deprived of freedom of movement, without any reason therefor, and is awaiting the trial which successively has been scheduled for May 2, June 6, June 20, July 11 and finally for October 17, 1949.

As has been already pointed out in the preceding notes and memoranda of the Embassy, the arrest and the subsequent prosecution of V. A. Gubichev by the American authorities have been a gross breach of generally recognized elementary rules of international law and of rules of the national law of the USA.

Being in the diplomatic service, V. A. Gubichev has a right to diplomatic immunity. The American authorities were informed in due manner and in due time as to the status of V. A. Gubichev and recognized the same. This is borne out by the following facts and documents:

1. In the note of the Ministry of Foreign Affairs of the USSR of June 13, 1946, no. KO-62676, addressed to the Embassy of the USA in Moscow, a diplomatic entry visa and laisser-passer in the name of V-A-Gubichev, as an employee of the Secretariat of the United Nations, a Third Secretary of the Diplomatic Service, were requested. In his diplomatic passport no. 12032, issued by the Ministry of Foreign Affairs of the USSR on June 10, 1946, it was similarly indicated that he was an employee of the Secretariat of the United Nations and had the diplomatic rank of Third Secretary.

2. There was placed on the diplomatic passport of V. A. Gubichev by the American Embassy at Moscow on June 24, 1946, diplomatic visa no. 202. At the same time it was indicated that the visa was issued in conformity with paragraph 7, article 3, of the Immigration Act of 1924.

On arrival in New York, the immigration inspector of the USA made the following notation on the passport of V. A. Gubichev:

“Admitted in New York July 20, 1946, in conformity with paragraph 7, article 3, of the Immigration Act of 1924, for the duration of the status.”

All this confirms that the American official authorities have recognized the diplomatic status of V. A. Gubichev. During his stay in the USA this status has not been subjected to any changes. In this diplomatic quality he was unlawfully arrested on March 4, 1949.

Attempting to justify this illegal act, in its aide-mémoire of March 24 and April 28, 1949 the Department of State set forth its version regarding some kind of “dual status”, which, according to the statement of the Department of State, appears to serve as proof of the lack of diplomatic status for V. A. Gubichev. However, examination of these arguments of the Department of State indicates their complete groundlessness.

In its aide-mémoire of April 28, the Department of State does not deny that V. A. Gubichev appears “as Third¹ Secretary of the Ministry of Foreign Affairs of the U.S.S.R.”, that is, as a person in the diplomatic service. And the assignment of V. A. Gubichev to the diplomatic service appears the basis for determining his right to immunity.

Being a Third Secretary in the Ministry of Foreign Affairs of the U.S.S.R., V. A. Gubichev appears, according to the Hall classification (vide Moore, Compendium of International Law, Vol. IV, par. 623, p. 427), as a diplomatic agent of the Soviet Government.²

“In general, diplomatic agents have the same immunities as the sovereigns whom they represent. The chief right is that of inviolability” (Eagleton, “Protection of Foreign Officials”, American Journal of International Law, No. 19).³

The Government of the U.S.A. has always demanded the observance of this principle with regard to itself, and this principle has been frequently confirmed by American courts (Jones vs. United States, 137 US 202, 217; see also Wolsey vs. Chapman, 101 US 755, 770, Rankl vs. United States 122 US 543, 557, 11 Opinion of the Attorney General 397, 399).

Admitting that V. A. Gubichev was a member of the diplomatic service of the Soviet Government, the Department of State, in its aide-mémoire of April 28, 1949, still attempts to cast doubt on his right to immunity, asserting that the privileges or immunities which Gubichev may have enjoyed until the alleged change of his status in September 1946, “are not pertinent to the matter”.

However, even this assertion of the Department of State is not valid, because since the arrival of Gubichev in the USA his status was not subjected to any changes.

The Department of State is aware that V. A. Gubichev arrived in the USA in the diplomatic quality of an employee of the Secretariat of the United Nations, because the Embassy of the United States in Moscow was motivated by this when it issued him the diplomatic visa and the laissez-passer. Gubichev occupied exactly the same position at the time of his arrest.

Only the Government of the USSR may decide what functions should be entrusted to V. A. Gubichev, a Soviet diplomat, in a given period of time, and if the Soviet Government permitted him to be assigned to the International Organization while retaining his official status at the same time, this was a decision which concerns only the Soviet Government and the appropriate International Organization, and it does not give the Government of the USA any reason to disregard the diplomatic status of Gubichev.

The American authorities know that Governments have the right to permit officials of their Ministries of Foreign Affairs to be assigned to International Organizations and that the officials assigned in this manner enjoy and possess diplomatic immunity.

In the examination into international law by Harvard University there was expounded a premise which can be found on pages 42 and 43 of the Supplement to no. 26 of the American Journal of International Law, in which, in regard to diplomatic agents specifically assigned by their Governments to international organizations, it is stated:

“By virtue of treaty provision or of customary international law they are entitled to the possession of diplomatic immunities.”⁴

In view of the above, the assertion of the Department of State that Article 100 of the Charter of the United Nations allegedly places in doubt the immunity of V. A. Gubichev is contradictory to the generally recognized rules of international law.

Diplomatic status was granted to V. A. Gubichev by his Government and, according to international law, the attitude of the Department of State toward V. A. Gubichev must be determined just by this factor and not by an arbitrary interpretation of his status by the Department of State.

Article 100 of the Charter refers only to the obligations of each member of the United Nations in regard to this organization.

As indicated above, the immunity of V. A. Gubichev exists on the basis of international law, which the American authorities are bound to observe.

The assertion of the Department of State to the effect that V. A. Gubichev does not enjoy immunity because he has not been accredited to the Government of the United States is not valid either.

In paragraph 7 of the Immigration Act of 1924, supplemented by the Law of the USA of December 29, 1945, in connection with entrance of the USA into the United Nations, and with the creation of the Secretariat of the United Nations in New York, it is stated that:

“persons designated by foreign Governments … to international organizations and the officers and employees of such organizations, and members of the immediate families of such representatives, officers, and employees, residing with them … shall … be entitled to the same privileges, exemptions and immunities as are accorded under similar circumstances to officers and employees, respectively, of foreign Governments and members of their families.”⁵

In the same paragraph 7 of the said Act it is explained that: “the term ‘international organization’ means a public international organization in which the United States participates.”⁶

It follows from the above that persons who have diplomatic immunity continue to enjoy the same even after their appointment by their Governments for work in the United Nations. Since V. A. Gubichev is an employee of the United Nations appointed by the Soviet Government, he is also entitled to diplomatic immunity.

The exception from the general rule, established by paragraph 7 of the said Act, refers only to the case “when such immunity may be waived by the foreign Government or International Organization concerned.”⁷

As is known, no waiver of the immunity in regard to V. A. Gubichev has been made by the Soviet Government or by the United Nations. Thus the diplomatic immunity of V. A. Gubichev is not subject to any doubt and cannot be disputed without a manifest breach of generally recognized rules.

The Act of Congress of the USA of April 30, 1790, included in 1878 in “The Revised Statutes of the United States” which later were transferred to “The Code of Laws of the United States” (Article 4063, paragraph 252), states as follows:

“Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any … public minister of any foreign prince or State, authorized and received as such by the President, or any domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void.”⁸

Proceeding from the above, the arrest of V. A. Gubichev and the subsequent legal action in regard to him as to a person who enjoys diplomatic immunity are manifestly arbitrary acts on the part of the police and the judicial authorities of the USA and are a gross violation of elementary and generally recognized rules of international law and of the laws in force in the United States themselves.

The actions of the American authorities appear even more arbitrary because V. A. Gubichev has not committed any crime against the Government of the USA, and all accusations presented against him are either inventions or provocations.

The Embassy insists on the immediate discontinuance of the illegally initiated prosecution of V. A. Gubichev, on his immediate release and on prosecution of those persons who have been guilty of committing with regard to Gubichev the illegal actions indicated above.

Washington, September 28, 1949.

1. The word “Third” is substituted as a correction for the word “a” originally in this note No. 118 according to a memorandum, not printed, brought to the Department of State by Nikolay Viktorovich Statskevich, an Attaché of the Embassy of the Soviet Union, on October 7. (861.20211 Gubitchev, Valentine/9–2849)
2. The reference here intended is to John Bassett Moore, A Digest of International Law, wherein a citation is made to William Edward Hall, A Treatise on International Law (4th edition, 1895), section 96, p. 310.
3. The reference here intended is to an article by Clyde Eagleton, “Responsibility of the State for the Protection of Foreign Officials,” American Journal of International Law, vol. xix, no. 2 (April 1925), pp. 293–314. In the quotation from page 296, the word “public” has been left out after “In general,” and before “diplomatic agents”.
4. The matter referred to here is the Research in International Law of the Harvard Law School and particularly to a Draft Convention on Diplomatic Privileges and Immunities, with Comment, prepared for the codification of international law, Supplement to the American Journal of International Law, vol. xxvi, nos. 1 and 2 (January and April 1932), pp. 15–187. An expanded quotation from the Comments on page 43 states that there is excluded from this draft convention “the subject of the privileges and immunities of delegates to international congresses and conferences and of special state agents participating in the functions of international organizations. Although they are generally accorded diplomatic privileges and immunities, delegates are not members of a mission ‘sent,’ i.e., accredited, to another state. Agents specially attached by their governments to public international organizations, or acting as members of their representative organs, are likewise excluded. By virtue of treaty provision or of customary international law they are entitled to the possession of diplomatic immunities, but they are obviously not members of a diplomatic mission in the ordinary sense of the term.”
5. This quotation is actually excerpted from Section 7(a) of the International Organizations Immunities Act, approved on December 29, 1945; 59 Stat. 671.
6. This quotation is actually excerpted from Section 1 of the International Organizations Immunities Act, ibid., p. 669.
7. The quotation is actually excerpted from Section 7(b) of the International Organizations Immunities Act, ibid., p. 672.
8. The quotation is actually excerpted from 22 U.S.C. § 252. Its derivation is from the Act of April 30, 1790, ch. 9, § 25, 1 Stat. 117. The words “ambassador or” have been left out at the place where elision has been indicated.