At your staff meeting on January 31, 1952 you requested that a study
be made of possible regulation of travel of persons covered by the
Headquarters Agreement with the UN.1 Attached hereto is a memorandum which considers in
detail the position of delegations of UN Members, Secretariat employees, accredited
correspondents and others having status under the Agreement. This
memorandum reaches the conclusion that the U.S. has the right to
restrict any UN aliens to the
headquarters district and its immediate vicinity, but that this
right should be exercised only for security reasons. It is noted
that the-restrictions recommended at your staff meeting on January
31, 1952 are based exclusively and plainly upon retaliatory grounds,
and that,
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it is in fact
desired to avoid any implication that they have a security purpose.
It is therefore recommended that no restrictions or travel
regulation be imposed, at the present time, upon Soviet nationals
having status under the Headquarters Agreement.
I understand that it is the intention of the draft note which was
considered at the January 31 staff meeting that the proposed travel
regulations, if placed in effect, would not apply to any Soviets in
Washington who have status under the Headquarters Agreement. At the
present time M. A. Federov, a TASS correspondent, is the only person
having such dual status. To date, however, no effective means has
been perceived of preventing the Soviets from increasing the number
of persons having dual status if they should decide to do so.
The imposition of restrictions upon persons coming under the
Headquarters Agreement would unquestionably produce adverse
reactions among many friendly UN
delegations and Secretariat employees. The failure to impose
restrictions on UN Soviets when the
travel of Soviets in Washington is being regulated will
unquestionably produce unfavorable comment in some quarters in
Congress and in some sections of the press and the public. It does
not seem possible to assess the magnitude or effect of such
reaction. It is recommended, however, in the event travel
restrictions are imposed as proposed at the January 31 meeting, that
the reasons for not imposing similar regulations or restrictions on
UN Soviets be fully explained to
the press.
Mr. Bohlen, Mr.
Fisher and Mr.
Barbour concur.
[Attachment]
confidential
Regulation of Movement of Persons Having
Status Under the Headquarters Agreement
Sec. 11 of the Headquarters Agreement provides that “the federal,
state or local authorities of the United States shall not impose
any impediments to transit to or from the headquarters
district…” of representatives of Members of the UN and specialized agencies,
Secretariat employees of the UN
and specialized agencies, experts performing missions for the
UN or specialized agencies,
representatives of the press and other information agencies
accredited by the UN or by a
specialized agency, representatives of NGO’s recognized in accordance with the UN Charter and persons invited to
the headquarters by the UN or
specialized agencies on official business.
Sec. 13(d) provides that:
“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.”
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Sec. 13 (e) provides that:
“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.”
It would appear that Sec. 11 read in conjunction with the
pertinent paragraphs of Sec. 13 would be sufficient to negate
any United States obligation to permit access to the United
States at large.
The UN Secretariat has, however,
in the past contended that the United States does not have the
right to restrict delegations of members and Secretariat
employees. The contention is based upon provisions of the
General Convention on Privileges and Immunities which grant to
representatives of members and to officials of the Secretariat
“freedom from immigration restrictions.” This contention is
dependent upon a construction of the words “freedom from
immigration restrictions” in which the United States does not
concur. It also appears to ignore the fact that the United
States has not acceded to the General Convention or views that
Convention as creating obligations which the United States does
not recognize. Furthermore this contention is dependent upon the
fact that the UN in construing
the obligations of the United States with respect to the
admission and residence of aliens has never recognized Sec. 6 of
the Headquarters Agreement.
Sec. 6 of P. L. 357, 80th
Congress, which authorized the President to accept the
Headquarters Agreement, provides:
“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(3) (e) [sic]
of the agreement, and such areas as it is reasonably
necessary to traverse in transit between the same and
foreign countries…”
The legislative history of Sec 6 indicates that the first
sentence is to be read disjunctively, i.e., that it reserves to
the U.S. the right to do two things:
- (1)
- to safeguard its security, and
- (2)
- completely to control the entrance of aliens into any
territory of the U.S. other than the headquarters
district and its immediate vicinity.
This construction means that:
- (1)
- the U.S. may deny access to the headquarters to aliens
for security reasons, and
- (2)
- the U.S. controls the entrance of aliens into the U.S.
at large “completely”, i.e., the
U.S. may act in its own discretion in denying to aliens
the right to enter the U.S. outside the headquarters
district and its immediate vicinity.
The UN Secretariat would not
concur in the foregoing. While Sec. 11 and 13 of the Agreement
clearly contemplate the right of the U.S. to control the entry
of aliens into the U.S. at large, at least in some cases, the
UN has contended that the
U.S. does not have such a right in all cases. The UN has always avoided giving any
recognition, whether express or implied, to Sec. 6.
The Headquarters Agreement was brought into effect by an exchange
of notes of November 21, 1947. The U.S. note states:
“Pursuant to instructions from my Government, I have the
honor to inform you that the Government of the United
States of America is prepared to apply the above
mentioned Headquarters Agreement subject to the
provisions of Public Law 357.”
The U.S. position is that the Agreement is to be read together
with Sec. 6. In view of the language of the U.S. note, it is
difficult to see how the UN
position that Sec. 6 does not have legal effect could prevail if
a case were taken to arbitration in accordance with Sec. 21 of
the Agreement.
The UN would probably contend that
the Headquarters Agreement requires the U.S. to give equal
treatment to delegations of all Members. There is no express
provision in the Agreement to this effect and it is difficult to
see how it could be sustained, as a matter of law, at least
insofar as the question of access to the U.S. at large is
concerned. The concept of equal treatment, to the greatest
extent possible, is probably implicit in the fundamental purpose
of the Agreement and the U.S. as a matter of policy has always
sought to avoid distinctions in the treatment of delegations.
The Department has also, in the past, avoided giving different
treatment to delegations for the purpose of assisting the
achievement of bilateral diplomatic objectives. So long as this
policy is adhered to UN
delegations would be restricted in their movements only for
security reasons.
The provisions of the Headquarters Agreement are the same in the
case of Secretariat employees, representatives of
non-governmental organizations and persons invited by the UN to the headquarters on official
business as in the case of delegation members.
Two considerations, however, indicate the desirability of
treating Soviet and Satellite nations of the Secretariat with
even greater circumspection than delegation members. (1) Some
Soviet and Satellite nationals of the Secretariat are not
sympathetic to the present regimes in their countries. They
should not be classed with those Secretariat employees who are
loyal to the Soviet and Satellite regimes. (2) The U.S. should
act in each individual case on a presumption, until rebutted,
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that the
individual concerned will be loyal to his obligations as an
international civil servant.
In the case of correspondents, representatives of
non-governmental organizations and invitees of the UN, communists who could not qualify
for official visas and were therefore inadmissible under the
Immigration Laws have been admitted by the Attorney General
under the so-called Ninth Proviso.2 In each case, since the enactment of
the McCarran Act,3 in which the Attorney General has
admitted such a communist, he has restricted him to New York
City and Long Island. No other definition of the area comprising
the “immediate vicinity” of the headquarters has ever been
applied.4
