501.BB/10–1547: Telegram
The United States Representative at the United Nations ( Austin ) to the Acting Secretary of State
priority
Delga 34. From Sandifer to Rusk for Barron. Reference to Delga 32, October 14. After lengthy and heated discussion in Subcommittee 1 of Sixth Committee of matters referred to in Delga 32, October 14, and matters discussed by Bevans and Marcy in telephone conversation of October 15, subcommittee agreed to include in its report only the following language:
“In submitting the text of the Headquarters Agreement the Secretary General also submitted a covering report (A/371) which, amongst other things, showed that the Congress of the United States had taken the action necessary to authorize the Secretary of State to bring the Agreement into force. The subcommittee confined its study to the text of the Agreement, etc.”
A separate paragraph of the report will read as follows.
“With regard to Section 28 of the Headquarters Agreement, the subcommittee was of the opinion that the notes exchanged for the purposes of bringing the Headquarters Agreement into force should be limited to effecting this purpose and should not contain any other matter having any effect by way of interpretation or otherwise on the provision of the Headquarters Agreement.”
It was the sense of the Committee, however, that these notes might properly refer to the act of the appropriate United States official “being duly authorized by act of the United States Congress”.
USDel hopes Dept will find this language acceptable. It was accepted only after long and at times acrimonious debate and in our opinion represents the best language we are likely to get without serious difficulties being encountered. We feel that the language agreed upon probably leaves open the question of the effect to be given to Section 6 of Public Law 357 if a dispute should ever arise as to its effect upon the Headquarters Agreement. Since Public Law 357 was actually before the Committee as part of an official document (A/371), it seems likely that if a dispute should ever arise any judicial body considering the matter would take Public Law 357 into account in its decision.1
Marcy will telephone Bevans before 11 a.m. October 16 to discuss this matter. [Sandifer.]
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An exchange between Mr. Fahy and the United Kingdom representative on (and chairman of) the subcommittee (Beckett) at the subcommittee’s meeting on October 16 was summarized in United Nations unclassified summary No. 1029 of October 16:
“Fahy pointed out that the United States would have to bring the Agreement into effect subject to the authority given the President by Public Law 357 and that the General Assembly should not go into the question of whether the Agreement was affected in any way by the action of Congress or the General Assembly resolution. He said that a statement by the Committee to the effect that the Agreement alone constituted the total obligation was a conclusion of law which the Committee was not competent to make. If in the future a disagreement should arise as to the effect of the Act of Congress, the judicial body settling the matter would determine the question. Beckett (UK) said that the Subcommittee did not have cognizance of the law and that therefore the Agreement alone, which had been considered, must contain all the obligations. Fahy said that ‘he did have cognizance’ of the Act of Congress and that when the United States brings the Agreement into effect, for its part, it must be under the authority of the Act of Congress. It was finally agreed that no mention would be made of Public Law 357, thereby presumably leaving to future determination, if the question should ever arise, the question of the effect of Public Law 357 upon the Agreement.”
In a memorandum to the Deputy Legal Adviser (Tate) on November 12, Mr. Marcy discussed this exchange:
↩“Mr. Fahy made it very clear to the subcommittee studying the Headquarters Agreement that when the United States adheres to the Headquarters Agreement it must do so under the authority granted to it by the Congress. At one point during the discussion Mr. Beckett of the UK said that as far as he was concerned he ‘had no cognizance of the act of Congress and that its substance was a domestic matter’. Mr. Fahy in reply said that ‘he did have cognizance of the act of Congress’ and the United States for its part had to act in accordance with the legislation.” (501.AD/11–147)