501.AD/11–147
The United States Representative at the United Nations (Austin) to the Secretary of State
The United States Representative at the Seat of the United Nations presents his compliments to the Secretary of State and has the honor to refer to the unanimous approval of the report on the Headquarters Agreement of Committee 6 (Document A/427) by the General Assembly of the United Nations at its 101st plenary meeting on October 31, 1947. The report has attached to it a simple draft resolution authorizing the Secretary-General on his part to bring the agreement into effect in the manner provided in Section 28 thereof.
Section 28 provides that the Agreement shall be brought into effect “by an exchange of notes between the Secretary-General, duly authorized pursuant to a resolution of the General Assembly of the United Nations, and the appropriate executive officer of the United States, duly authorized pursuant to appropriate action of the Congress.”
A copy of a draft note which it is proposed to send to the Secretary-General is enclosed herewith.1 If the proposed note meets with the Department’s approval, it will be discussed with representatives of the Secretary-General.2
[Page 67]It is desirable that the exchange of notes take place before the termination of the Second Session of the General Assembly. It would be appreciated if the Department would give this matter the earliest possible consideration.3
- Not printed. The text is identical with that of the draft prepared by the Department on October 16; see p. 63.↩
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As noted, the text submitted here by the Mission was the same as that drafted in the Department on October 16. There was, however, a difference of opinion between the Mission and the Department as to whether it would be satisfactory, from the United States point of view and in deference to the United Nations, to substitute “in accordance with” or “in pursuance of” for “subject to” in the reference to Public Law 357 in paragraph two of the proposed United States note. The Mission disliked the term “subject to” and expressed a desire to have some negotiating latitude in respect to this. It is probable that the Mission’s opinion was conveyed over the telephone rather than being recorded in a written communication.
Carl Marcy, Acting Legislative Counsel, in a memorandum to Mr. Tate, the Deputy Legal Adviser, on November 12, expressed the Department’s view: “First, that to be honest with Congress we must use the phrase ‘subject to’, second, that the casual reader or historian when examining the exchange of notes will, if he encounters the words ‘subject to’, have adequate notice that he must look at the Congressional Act before going further.” (501.AD/11–147). In a telephone conversation on November 13 between Mr. Marcy in Washington and Mr. John Maktos, Adviser on the United States Delegation Staff in New York, the Mission was informed that the Department would send out an instruction “within a day or two stating that the Department would prefer ‘subject to’ but that [the Mission] would be given discretion to substitute ‘pursuant to’ or ‘in accordance with’ if necessary.” (Memorandum, Maktos to Fahy, New York, November 13, IO Files in folder “Ad Hoc Committee on Headquarters Report of the Secretary-General [1947]”). Whatever action the Department or the Mission may have taken subsequently, and nothing of record has been found in the Department’s files, the words “subject to” were used in the final text; and in telegram 1589 to New York, December 8, the Acting Secretary of State stated that “Dept. especially appreciates Fahy’s accomplishment during difficult negotiations obtaining acceptance specific wording desired by Dept., making clear that application agreement shall be subject [to] provisions US Public Law 357.” (501.AD/11–2147)
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The text of the note which the United States Representative at the United Nations (Austin) exchanged with the Secretary General on November 21 was exactly the same as the text prepared in the Department on October 16 with the exception of the last paragraph, which at the request of the Secretary General was changed to read: “I have been instructed by my Government to propose that the present note and your note of this date be considered as bringing the Headquarters Agreement into effect on the date hereof.” The documentation of this change consists of telegram 1220 from New York, November 15 (501.AD/11–1547), and Department of State’s instruction 263 to New York, November 20 (501.AD/11–1547), neither printed.
Texts of the notes exchanged on November 21 are printed in Department of State Bulletin, December 14, 1947, pp. 1180 and 1181; 61 Stat. (pt. 4) 3437; and in United Nations Treaty Series, vol. xi, pp. 38 ff.
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