Hostname: page-component-586b7cd67f-t7czq Total loading time: 0 Render date: 2024-11-30T15:02:55.203Z Has data issue: false hasContentIssue false
  • English
  • Français

The International Organizations Immunities Act

Published online by Cambridge University Press:  20 April 2017

Lawrence Preuss
Lawrence Preuss*
Affiliation:
University of Michigan
Get access Rights & Permissions [Opens in a new window]

Extract

This legislation constitutes belated recognition of the need for granting to international organizations of which the United States is a member, and to their personnel, a legal status which is adequate to ensure the effective performance of their functions and the fulfillment of their purposes. It will “not only protect the official character of public international organizations in this country,” as the Senate Committee on Finance has stated, “but it will also tend to strengthen the position of international organizations of which the United States is a member when they are located or carry on their activities in other countries.”

Type
Research Article
Information
American Journal of International Law , Volume 40 , Issue 2 , April 1946 , pp. 332 - 345
Copyright
Copyright © American Society of International Law 1946

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Public Law 291, 79th Cong. [Ch. 652, 1st Sess.]; the bill which resulted in the act was introduced by Mr. Doughton on Oct. 24, 1945 as H. R. 4489; text below, Supplement, p. 85. On Nov. 21, 1944, Mr. Doughton had introduced a bill (H. R. 5512, 78th Cong., 1st Sess.) which applied only to UNRRA, and which “died” in the Committee on Ways and Means.

2 Senate Report No. 861, 79th Cong., 1st Sess. [to accompany H. R. 4489], p. 2.

3 This is of special importance in the case of the Pan American Union, whose Governing Board, by a resolution adopted June 7,1944, had requested that the Union and its personnel be granted a status similar to that enjoyed by the League of Nations and its staff under Article 7 of the Covenant. See Report of the Special Committee of the Governing Board appointed to Study the Juridical Status of the Pan American Union and of its personnel, Washington, 1944.

4 Resolutions 32–34 and 36 of the First Session of the Council of UNRRA.

5 Art. VIII, par. 4, and Art. XV of the Constitution of the Food and Agriculture Organization.

6 Article IX, Articles of Agreement of the International Monetary fund; Article VII, Articles of Agreement of the International Bank for Reconstruction and Development; Article XII, Constitution of the Educational, Scientific, and Cultural Organization of the United Nations; Art. 1, Sec. 4, Interim Agreement on International Civil Aviation.

See Jessup, Philip C., “Status of International Organizations: Privileges and Immunities of their Officials,” this Journal, Vol. 38 (1944), pp. 658–662 Google Scholar; and Kuhn, A. K., “United Nations Monetary Conference and the Immunity of International Agencies,” same, pp. 662–667 Google Scholar.

7 For discussion of this point, see Preuss, L., “Diplomatic Privileges and Immunities of Agents Invested with Functions of an International Interest,” same, Vol. 25 (1931), pp. 695, 696 Google Scholar.

8 U. S. For. Rel., 1929, Vol. I, p. 414; see also Hackworth, Green, Digest of International Law, Vol. IV, p. 423 Google Scholar. On the status of officials of the League in the territories of non-member states, see, in general, Martin Hill, Immunities and Privileges of International Officials: The Experience of the League of Nations (to be published shortly by the Carnegie Endowment for International Peace).

The refusal of the United States to grant immunities is not based upon its non-membership in any particular organization, but upon the lack of any statutory basis for the extension of governmental privileges and immunities to any international organization whatever. This is shown by its failure to accord diplomatic status to the officers of the Pan American Union. See Hackworth, , Digest, Vol. IV, p. 423 Google Scholar.

9 Although they are denied exemption from taxation, officials of the League and other international institutions are, as “distinguished foreign visitors . . . designated by the Secretary of State,” granted customs courtesies and free entry privileges. Same, pp. 423, 586.

10 Executive Order 9698, Fed. Reg., Vol. 11, No. 36 (Feb. 20, 1946), p. 1809.

11 In an explanatory statement issued by the Department of State the following requirements for applicant organizations are prescribed:

1. The applicant organization, and its officers and employees, must be doing sufficient business in the United States to warrant granting them the privileges of the legislation, and their activities must be such as reasonably to require the said privileges. In general, this will mean that the organization must have an office and staff located within the United States.

2. The Government of the United States must be a participating member in the applicant organization.

3. The participation of the Government of the United States must be pursuant to a treaty or under the authority of an Act of Congress authorizing such participation or making an appropriation for such participation.

4. The applicant organization must be composed principally of governments, as distinguished from private organization, as members.

5. The applicant organization must not be scheduled for liquidation in the immediate future.

Department of State, Press Release, No. 128, Feb. 20, 1946.

12 The power of revocation may also be exercised “for any other reason,” which presumably would include the cessation of the activities of a particular organization. See Senate Report No. 861, 79th Cong., 1st Sess., p. 2.

13 Same, p. 2; see also remarks by Taft, Senator, Congressional Record, Vol. 91, No. 227 (Dec. 20, 1945), p. 12608 Google Scholar. The principal utility of this provision would seem to reside in that it permits of adapting the extent of the benefits conferred upon any particular organization to the requirements of the instrument by which it is established and its status defined. Note, for example, that the International Monetary Fund and the International Bank, by reason of differences in the nature of their operations, have differing immunities with respect to judicial process. Art. IX, Sees. 2–4, Articles of Agreement of the Fund; and Art. VII, Sees. 2–4, Articles of Agreement of the Bank; also Jessup, as cited (note 6, above), pp. 659–660.

14 Compare the Canadian Treaties of Peace (Status of the International Labour Office) Order, Aug. 14,1941, Sec. 5 (1) of which provides that the ILO shall have, in the absence of express waiver, immunity from any suit or proceeding “other than a proceeding by way of set-off, counter-claim or cross-action. . . .”

15 The exemption relating to taxation of income is made effective for taxable years beginning after Dec. 31, 1943, apparently for the purpose of covering UNRRA from the commencement of its activities.

16 No exemptions from any Federal excise or tax are accorded unless they are specifically referred to in the Act, which is, in this respect, less liberal than the law and practice regarding exemptions accorded to foreign governments and diplomatic officials. See Hackworth, , Digest, Vol. IV, pp. 570–576 Google Scholar.

17 The bill (H. R. 4489) as originally introduced provided that international organizations should be entitled to the same exemptions from State and local taxes as is enjoyed by the United States Government. This provision was stricken from the bill by the Senate Committee on Finance on the grounds that exemption from such taxes cannot be provided by Federal legislation (in the absence of treaty), and that, therefore, “this matter should properly be dealt with by the State and local authorities.” Senate Report No. 861, 79th Cong., 1st Sess., p. 5. In this respect the Act falls short of compliance with the provisions for tax exemption contained in certain agreements now in force. Art. IX, Sec. 9 (b) of the Articles of Agreement of the International Monetary Fund, for example, provides that the Fund shall be “immune from all taxation” in the territory of a member state. It would have been appropriate to have included in the Act provision for exemption from State and local taxation wherever required by the terms of any treaty or other international agreement, thus avoiding all question as to whether treaty exemptions are self-executing. This problem will become acute with the establishment of the seat of the United Nations in this country. Any exemptions from State and local taxation accorded to the United Nations by treaty or other agreement should be implemented by Federal legislation, and should not be left to be dealt with by intercession of the Department of State with the State authorities, by possibly insufficient or conflicting State legislation, or by “agreements” of doubtful legal standing between the United Nations and the States of New York and Connecticut.

18 Such immunity is not personal, and, therefore, is rightly not made dependent upon the nationality of the person concerned; it belongs to all agents of an entity which itself possesses immunity from jurisdiction. See Preuss, as cited (note 7, above), p. 706; and Beckett, W. E. , “Consular Immunities,” in British Yearbook of International Law, Vol. XXI (1944), pp. 38–50 Google Scholar.

19 This is effective with respect to taxable years beginning after Dec. 31, 1943 it will be noted that there is no exemption from Federal taxation other than upon official income, and that there is no exemption from State and local taxation.

20 United States citizens, in accordance with the principle of “nationality discrimination,” receive no exemption. If they serve abroad as officers or employees of international organizations, they are assimilated to ordinary private persons, and are liable to the Federal income tax on their official income; they are entitled, however, to exclude from gross income the amount of such compensation if they had a bona fide residence abroad during the entire taxable year. Internal Revenue Code, Sec. 116 (a).

21 This exemption is extended to the families, suites and servants of the foregoing persons. The customs exemption herein provided, which does not apply to articles imported subsequent to entry, is less generous than that which is ordinarily accorded to foreign governmental officials. See Hackworth, , Digest, Vol. IV, pp. 586–587 Google Scholar.

22 These exemptions are extended to the immediate families and employees of representatives or officers, provided that they reside with them.

The bill, as originally introduced and as reported out by the Senate Committee on Finance, contained also an exemption from selective training and service. This was eliminated on the floor of the Senate, Senator Taft pointing out that there was no necessity for dealing with the matter in the present Act since the President already possessed the power to grant exemption from selective service to resident aliens. 91 Congressional Record, No. 227, 79th Cong., 1st Sess. (Dec. 20, 1945), pp. 12609.

23 Order cited above, note 14.

24 Order No. 4411 of the Executive Yuan relating to the Status, Privileges and Immunities of the International Labor Organization and its Personnel, Official Gazette of the Executive Yuan, Vol. VI, No. 3 (Feb. 19, 1943).

25 Diplomatic Privileges (Extension) Act, 1944 (7 & 8 Geo. 6, Ch. 44); this Journal, Vol. 39 (1945), Supplement, p. 163; Diplomatic Privileges (U.N.R.R.A.) Order in Council, 1945 (S.R. & O., 1945, No. 79); Diplomatic Privileges (U.N.I.O., The Refugees Committee and Order in Council (S. R. & O., 1945, No. 84). For an analysis of British legislation, see Schwelb, Egon, in 8 Modern Law Review (1945), pp. 50–63 Google Scholar.

26 See Sharp, Walter R., “American Foreign Relations within an Organized World Framework,” in American Political Science Review, Vol. 28 (1944), p. 944 Google Scholar.

27 Basdevant, Suzanne, Les Fonctionnaires internationaux, Paris, 1934, p. 291 Google Scholar.

28 The power to withdraw the benefits of the Act from nationals of countries which deny like benefits to citizens of the United States, is likewise objectionable, and rests” upon a misconception of the status of an international official and of his position in relation to the government of the country in which he exercises his functions. See C. Wilfred Jenks, “Some Legal Aspects of the Financing of International Institutions,” in Transactions of the Grotius Society, Vol. XXVIII (1943), p. 109.

29 The emphasis placed upon the fiscal provisions of the Act is indicated by the fact that H. R. 4489 was referred to the Committee on Ways and Means and not to the Committee on Foreign Affairs.

30 H. R. 5512 (note 1, above) had provided for taxation of the official incomes of resident alien officers and employees of UNRRA.

31 See von Ranshofen-Wertheimer, Egon, The International Secretariat, Washington, Carnegie Endowment for International Peace, 1945, p. 267 Google Scholar.

32 Report of Subcommittee IV/2/A on the Juridical Status of the Organization, UNCIO Doc. 803, IV/2/A/8; Report of the Rapporteur of Committee IV/2, UNICO Doe. 9 IV/2/42 (2).

33 Report to the President on the Results of the San Francisco Conference (Department of State Publication 2349, Conference Series 71), p. 157.

34 Report of the Subcommittee on Privileges and Immunities to Committee IV/2, UNCIO Doc. 412, IV/2/A/2 (1); Report of the Rapporteur of Committee IV/2, UNCIO Doc. 933, IV/2/42 (2); Report to the President . . . (cited, note 33, above), pp. 158–160.

35 Ch. V, Sec. 5, Appendix: “Study on Privileges and Immunities,” United Nations Publication PC/EX/113/Rev. 1 (Nov. 12, 1945), p. 70.

36 Report of the Executive Committee . . . (cited, note 35, above), Ch. X, Sec. 2, p. 115.

37 On Jan. 24, 1946, a subcommittee of the Sixth Committee (Legal Question) recommended the adoption of a general convention, rather than recommendations by the General Assembly, as a means for determining the details of application of Articles 104 and 105 of the Charter. “This suggestion,” it stated, “does not prejudice the separate question of the conclusion of a special convention with the State on the territory of which the seat of the United Nations will be situated.” United Nations Publication, General Assembly, A/C. 6/17.

38 Public Law 264, 79th Cong. (Ch. 583, 1st Sess.); approved Dec. 20, 1945.

39 A possible precedent is found in Article 3, Resolution IX, adopted by the Inter-American Conference on Problems of War and Peace on Mar. 6, 1945, which provides that the ad hoc delegates of the American Republics to the Governing Board of the Pan American Union “shall have the rank of Ambassadors and shall enjoy the corresponding privileges and immunities. . . .” At the request of the Governing Board, the application of this provision has been suspended, pending reconsideration at the Ninth International Conference of American States or at some previous conference. In the meanwhile the following countries have appointed the special representatives contemplated by the Resolution: Argentina, Colombia, Guatemala, Mexico, the United States, and Uruguay.

40 Not yet published in the U. S. Treaty Series; for text see Goodrich, L., and Carroll, M., Documents on American Foreign Relations, Vol. VI (1943–44), p. 553. In force, Nov. 8, 1945, Department of State Bulletin, Vol. XIII, No. 336 (Dec. 2,1945), p. 901.Google Scholar

41 Congressional Record, Vol. 91, No. 208, 79th Cong., 1st Sess. (Nov. 26,1945), p. 11156.

42 Hansard, , Parliamentary Debates, House of Commons, Vol. 403, No. 121 (Sept. 27, 1944), col. 368.Google Scholar

43 Same, Vol. 403, No. 132 (Oct. 13, 1944), col. 2087.

44 The conclusion of a convention providing for national tax exemption will give to the Congress the constitutional authority, and will impose upon it the obligation, to provide also for exemption from state taxation. See note 17, above.

45 Journal of the General Assembly, No. 16, Suppl. No. 5, A/C. 5/13, p. 16.

46 Adopted unanimously.

47 Adopted by 17 votes to 11.

48 Journal, No. 16 (cited, note 45, above), p. 14.