L/UNA Files: folder entitled “Privileges and Immunities”
Memorandum by Mr. Richard W. Flournoy, Assistant Legal Adviser for Special Problems, to Mr. Belton O. Bryan, Assistant Legal Adviser
Use of the United Nations Laissez-Passer by Officials and Employees of the United Nations in Entering and Leaving the the United States
letter of january 9, 1948 from mr. a. h. feller, director legal department, united nations
Mr. Feller’s letter, which you handed to me some time ago for comment, raises rather difficult problems, which involve the status of the United Nations and its relationship to this Government. I have studied the problem with considerable care and have discussed it with several persons. In this connection I have endeavored to ascertain whether it is proposed that the laissez-passer should be issued in any cases to aliens who have not yet come to this country, and if so how. I had some difficulty in ascertaining what agencies the United Nations organization has in foreign countries, by which the laissez-passer might be issued. With regard to this I was referred to Dr. Saba,1 and I understand from his statement that at the present time there is no branch office of the United Nations except in Geneva. I was also told them formerly was a branch office in London but it has been closed. Presumably the laissez-passer will be issued as a rule by the organization in New York, but perhaps these documents may occasionally be issued by the office in Geneva.
Before discussing the points mentioned by Mr. Feller, especially with regard to paragraphs 1–4 on page 4 of his letter, it seems desirable to consider the nature of a passport and its relationship to the United Nations laissez-passer.
The term “passport” is defined by John Bassett Moore as follows:
“A passport is the accepted international evidence of nationality. In its usual form, it certifies that the person described in it is a citizen [Page 42] or subject of the country by whose authority it is issued, and requests for him permission to come and go, as well as lawful aid and protection.” (III Int. Law Dig., 856).
With regard to the nature and function of passports Moore quotes from a note of May 19, 1886 from Secretary Bayard to the Spanish Minister, in which the following passage appears:
“Passports are prima facie evidence of the individual’s right as a citizen to the protection of the Government which issues them, and a special responsibility rests upon the Government that disregards such evidence.” (III Moore, Int. Law Dig., 859).
The United Nations laissez-passer is provided for in Article VII of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly February 13, 1946. For convenient reference I quote this Article in full. It reads as follows:
“Article VII
“United Nations Laissez-Passer
“Section 24. The United Nations may issue United Nations laissez-passer to its officials. These laissez-passer shall be recognized and accepted as valid travel documents by the authorities of Members, taking into account the provisions of Section 25.
“Section 25. Applications for visas (where required) from the holders of United Nations laissez-passer, when accompanied by a certificate that they are travelling on the business of the United Nations, shall be dealt with as speedily as possible. In addition, such persons shall be granted facilities for speedy travel.
“Section 26. Similar facilities to those specified in Section 25 shall be accorded to experts and other persons who, though not the holders of United Nations laissez-passer, have a certificate that they are travelling on the business of the United Nations.
“Section 27. The Secretary-General, Assistant Secretaries-General and Directors travelling on United Nations laissez-passer on the business of the United Nations shall be granted the same facilities as are accorded to diplomatic envoys.
“Section 28. The provisions of this article may be applied to the comparable officials of specialized agencies if the agreements for relationship made under Article 63 of the Charter so provide.”
I have been endeavoring (so far without success) to obtain a sample copy of the United Nations laissez-passer. However, I have been informed over the telephone that the principal part of it reads as follows:
“To all who shall see these Presents
“Greetings:
“You are requested to extend to the bearer the courtesies, facilities, privileges and immunities which pertain to his or her office and to facilitate by all suitable means the journey and mission on which he or she is engaged.”
I am informed that a laissez-passer contains spaces for the name and personal description of the bearer and his photograph. I am informed that it contains no space for a statement of the bearer’s nationality.
It is clear that the laissez-passer is not a passport, and that it does not call for the protection of the bearer by any government, and of course the United Nations itself cannot extend diplomatic protection (at least directly) to its officers or employees. As indicated in Article VII of the Convention on the Privileges and Immunities of the United Nations, the laissez-passer is a travel document designed to show the position of the bearer as an official of the United Nations and to expedite his travel. While members of the United Nations are undoubtedly under an obligation to give due respect to the laissez-passer, in accordance with the intent of Article VII of the Convention, they are not required to recognize it as taking the place of a national passport.
It will be noted that Section 25 of the Convention recognizes the right of states to require visas of holders of United Nations laissez-passer, although it does not state that the visas are to be placed on the laissez-passer themselves.
The right to require visas of holders of laissez-passer is also recognized by Section 13 of the United Nations Headquarters Agreement, which is embodied in the Joint Resolution of Congress of August 4, 1947 (Public Law 357–80th Congress). Section 13 provides that, when visas are required of persons referred to in Section 11, they shall be granted without charge and as promptly as possible. What is more important, it provides that the “Laws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11.” Section 13 contains a similar provision concerning the laws of the United States governing residence of aliens and their deportation, requiring the approval of the Secretary of State for the latter.
As Section 11 of the Headquarters Agreement is of special importance, it will be quoted in full:
“Section 11
“The federal, state or local authorites of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations, or of specialized agencies as defined in Article 57, paragraph 2, of the Charter, or the families of such representatives or officials, (2) experts performing missions for the United Nations or for such specialized agencies, (3) representatives of the press, or of radio, film or other information agencies, who have been accredited by the United Nations (or by such a specialized agency) in its discretion after consultation with the United States, (4) representatives of nongovernmental organizations recognized by the United Nations for the purpose of consultation [Page 44] under Article 71 of the Charter, or (5) other persons invited to the headquarters district by the United Nations or by such specialized agency on official business. The appropriate American authorities shall afford any necessary protection to such persons while in transit to or from the headquarters district. This section does not apply to general interruptions of transportation which are to be dealt with as provided in Section 17, and does not impair the effectiveness of generally applicable laws and regulations as to the operation of means of transportation.”
Senate Joint Resolution 136 “Authorizing the President to accept on behalf of the Government of the United States the Convention on the Privileges and Immunities of the United Nations”,2 which is understood to have passed the Senate and to be pending now before the House, sets forth in full the Convention on the Privileges and Immunities of the United Nations, mentioned above, and contains the following statement:
“Nothing in article VII of the said Convention with respect to laissez-passer shall be construed as in any way amending or modifying the existing or future provisions of United States law with respect to the requirement or issuance of passports or of other documents evidencing nationality of citizens or agents (sic), or the requirement that aliens visiting the United States obtain visas”.
The word “agents” in the passage just quoted is evidently a misprint and should read “aliens”. I spoke to Mr. Marcy about this point, and he agreed.
In the circular telegraphic instruction to diplomatic and consular officers of June 9, 1947,3 referred to on page 1 of the annexed memorandum of October 30, 1947, prepared by Mr. Bryan,4 they were directed not to visa any laissez-passer of the United Nations, and I am informed that this instruction is still in effect.
In my conversation of yesterday with Dr. Saba of the United Nations, he mentioned the provision of S.J. Res. 136, quoted above. I understood him to say that he was not inclined to favor the reservation in question. He made a statement to the effect that, if a passport should be required of a person representing the United Nations or having business with that organization in pursuance of Section 11 of the Headquarters Agreement, quoted above, the person’s mission “would have to be agreeable to his own government”, whereas the United Nations wishes “to make the operations of the United Nations [Page 45] independent of control by any government.” However, I did not consider that I was called upon to discuss this question with Dr. Saba.
Reverting to Mr. Feller’s letter, and with reference particularly to paragraphs 1–4 on page 4, I may say that I see no objection to the proposed procedure for keeping a “photostatic copy of each national passport upon which the laissez-passer was issued”, but to my mind it is questionable whether that would be sufficient to satisfy the needs of this Government. It might be sufficient during the period of validity of the passport, but I am inclined to think that the bearer of the laisser-passer should always, when entering the United States, be provided with a passport which is still valid, since this would facilitate his deportation to the country of his nationality in case he should violate the conditions upon which he is admitted to the United States or should make himself objectionable, as, for example, by carrying on political propaganda in this country.
Incidentally, it may be remarked that paragraph 1 refers to “laissez-passer … issued at the seat of the United Nations or in the regional United Nations offices”, although, as indicated above, there appears to be only one United Nations office outside of the United States, that is, the office in Geneva.
Cases may arise in which the bearer of a laissez-passer is unable to obtain a passport of the foreign state of which he is a national because he is not in favor with the government thereof or cannot because of his political views or connections. Cases may also arise in which the bearers of the laissez-passer are nationals of countries the governments of which are not recognized by the United States. In these cases it would seem that the proper course would be to require the alien in question to have the consular visa on a duplicate copy of the application. Such procedure has been in effect for years with regard to aliens of the classes mentioned visiting the United States temporarily for business or pleasure.
As to paragraph 2, it would seem that, if the aliens in question have been admitted to the United States for permanent residence, they should provide themselves with re-entry permits. Such documents may be obtained directly from the immigration staff at Ellis Island.
As to any aliens coming within the purview of paragraph 2 who have not been admitted to the United States for permanent residence, it is believed that they should be provided with passports of their governments or duplicate copies of visa applications, as indicated above, for use in reentering the United States. If the aliens in question are German nationals or Japanese persons of any foreign nationality, or if the aliens are departing from this country with the intention of entering Germany, Austria, Japan or Korea, it is understood that, [Page 46] under the existing regulations, they should provide themselves with exit permits. Whether this requirement should be waived in behalf of those who are bearers of laissez-passer would seem to be a question of policy, for consideration by the Visa Division and other offices in the Department having to do with policy.
As to paragraph 3, the discussion above concerning paragraph 1 is believed to be pertinent. As indicated therein, it is believed that the aliens in question should provide themselves with duplicate visa applications, with consular visas affixed thereto.
Paragraph 4 relates to the documentation of citizens of the United States, and it is believed that such persons should be provided with passports of this Government when they travel abroad, since they may find it necessary to call upon this Government for diplomatic protection in foreign countries. The laissez-passer, as indicated above, is not a passport and does not in itself call for the protection of this Government to the bearer. Therefore, the issuance of such a document to a citizen of the United States would not seem to contravene the provisions of 22 U.S.C., sec. 211(a), which read as follows:
“The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.”
For the reasons indicated, Mr. Feller’s suggestion concerning the use of the laissez-passer as a passport can hardly be followed. However, there is no apparent reason why the bearer of a laissez-passer who is a citizen of the United States should not also carry a passport of this Government. If such a person should be sent abroad on a very urgent mission, it would seem that he might obtain a passport of this Government directly from the passport agency in New York City. I understand that under the existing regulations ordinary passports may be obtained directly from the passport agency, without the necessity of first sending the written applications to the Department. It occurs to me that regulations might be made under which special passports, showing the official status of the bearers, might also be issued in New York in urgent cases. However, I believe that this would require an amendment of the regulations, a matter for consideration by the Passport Division. I may add that in the preparation of the above statement I have considered not only your memorandum of October 30, 1947, but also Mr. Knight’s memoranda of October 7 and October 27, 1947.5
- Dr. Hanna Saba, Director of the Division of Privileges and Immunities and Registration of Treaties, in the Legal Department of the Secretariat of the United Nations.↩
- For text, see Foreign Relations, 1947, vol. i, p. 48; for the legislative history of this resolution in the Senate, see Senate Report No. 559, 80th Cong., 1st sess.↩
- Foreign Relations, 1947, vol. i, p. 40.↩
- Not printed; it was a memorandum from the Legal Adviser (Gross) to Mr. Charles Fahy, a former Legal Adviser of the Department of State, and at that time a member of the U.S. Delegation to the Second Regular Session of the General Assembly, then meeting in New York. (L/UNA Files, Folder “Privileges and Immunities”)↩
- Memoranda of October 7 and October 30, 1947, not printed; memorandum of October 27, 1947 not found in Department of State files.↩