Chapter VI. Selected legal opinions of the secretariats of the United Nations
and related intergovernmental organizations

Summary

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A. Legal opinions of the Secretariat of the United Nations

Privileges and Immunities 1. Special Court for Sierra Leone—Legislative authority for the issuance of laissez-passer—Discretion of the Secretariat—Article VII of the Convention on the Privileges and immunities of the United Nations, 1946—Definition of “official” of the United Nations—General Assembly resolution 76(I) of 7 December 1946—Privileges and Immunities of members of the International Court of Justice—General Assembly resolution 90(I) of 11 December 1946—Independent judicial institution established by bilateral agreement

2. United Nations Assistance Mission in Afghanistan (UNAMA)—Searches of United Nations vehicles —“Search” of or “interference” with property or an asset of the United Nations—Cooperation with the appropriate authorities—Article II, section 3, and article V, section 21, of the Convention on the Privileges and Immunities of the United Nations, 1946—Mutatis mutandis application of the Convention on the Privileges and Immunities of the Specialized Agencies, 1947—Effects of armed conflict on treaties

3. Inclusion of dependents in United Nations laissez-passers (UNLP) for United Nations High Commissioner for Refugees (UNHCR) local staff members in case of medical evacuation—United Nations Family Certificate for identification purposes—Guide on the issuance of United Nations travel documents

4. Status of the Military Armistice Commission in Korea vis-à-vis the United Nations—Privileges and immunities of its members—“Unified Command” and “United Nations Command”—Security Council resolution 84 (1950) of 7 July 1950—Armistice Agreement of 27 July 1950

Procedural and Institutional Issues 5 (a) Breach of Article 19 of the Charter of the United Nations—Arrears in payment of a Member State’s financial contributions to the Organization and the right to vote in the General Assembly—Invalid ballots

5 (b) Breach of Article 19 of the Charter of the United Nations—Error by the Secretariat—Retroactive validation of the election process by applying the last sentence of Article 19 of the Charter of the United Nations— Retroactive suspension of rule 160 of the rules of procedure of the General Assembly—Prerogative of the General Assembly to make final decision

6. Regional group system within the United Nations— Conditions for admission to a regional group— Consensus—General Assembly resolution 1192 (XII) of 12 December 1957

7. Request by a territory for membership in the World Tourism Organization (WTO)—Sovereignty—Associate membership—Article 6 of the Statutes of the WTO—Required approval and declaration of the member State assuming responsibility for the entity’s external relations—Approval by the WTO General Assembly

8. Question of representation of a Member State in United Nations organs—Accreditation—Acceptance of credentials and recognition of sovereign government—Rule 39 of the provisional rules of procedure of the Security Council—Rules 27 and 29 of the rules of procedure of the General Assembly—Security Council resolution 1483 (2003) of 22 May 2003—General Assembly resolution 396 (V) of 14 December 1950— Designation of a Permanent Representative to the United Nations in contrast to a Chargé d’Affaires

9. Application of rule 129 of the rules of procedure of the General Assembly—Voting procedures—Separate votes on parts of resolution—Adoption of resolution by consensus or without a vote—Implied legal question

Other Issues Relating to United Nations Peace Operations 10. United Nations Organization Mission in the Democratic Republic of the Congo (MONUC)—Cross border operations in the internal waters of another Member State—Delimitation and demarcation of lake boundaries—Territorial limitations of MONUC’s mandate—Consent by the Member State concerned — Authorization by the Security Council to use force within the Member State concerned—Use of force to ensure security and freedom of movement of personnel and to protect civilians under imminent threat of physical violence—Security Council resolutions 1291 (2000) of 24 February 2000 and 1445 (2002) of 4 December 2002—Agreement between the United Nations and the Democratic Republic of the Congo on the status of the United Nations Organization Mission in the Democratic Republic of the Congo. Kinshasa, 4 May 2000(Status of Forces Agreement)

11. United Nations Mission in Ethiopia and Eritrea (UNMEE)—Liability for acts of staff members— Responsibility of staff members to comply with local laws and to honour their private legal obligations (ST/AI/2000/12)—Privileges and immunities of staff members for the performance of official functions—Detention of staff members for criminal offences—Jurisdiction in criminal proceedings over members of United Nations peacekeeping operations—Exclusive jurisdiction of the respective participating States—Articles 42 and 47 of the model Status of Forces Agreement (A/45/594)

12. United Nations Mission in Liberia (UNMIL)—Authorization by the Security Council to use armed force in situations other than self-defence—Interpretation of Security Council resolution 1509 (2003) of 19 September 2003—Ordinary and natural meaning given to terms when they are read in the context of a resolution as a whole and in light of its object and purpose—History and circumstances of the adoption of a resolution

Other Issues Relating to Special Courts and Tribunals 13. Special Court for Sierra Leone—Consent for disclosure of confidential documents—Mutatis mutandis application of rule 70 (B) of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR)— Article 14 of the Statute of the Special Court for Sierra Leone

14. Special Court for Sierra Leone—Cooperation of third States—Powers to enforce compliance by States under Chapter VII of the Charter of the United Nations—Powers of the ad hoc tribunals for the former Yugoslavia and for Rwanda—Bilateral agreements

Sanctions 15. Paragraph 17 of Security Council resolution 1478 (2003) of 6 May 2003 (measures imposed against Liberia)—Obligation of all States to prevent the import into their territory of certain items originating from Liberia—Date of effect of said obligation—Definition of “import”— Interpretation of a term in its ordinary and natural meaning when read in its context and in light of the object and purpose of the resolution concerned—National legislation

Treaty Law 16. Functions of the Secretary-General as depositary as distinct from his administrative responsibilities as chief administrative officer of the Organization— ST/SGB/1998/3 (Organization of the Secretariat of the Economic Commission for Europe)—Requests to the Secretary-General, as depositary, by a treaty-based body

17(a) International Cocoa Agreement, 2001—Commodity Agreements—Treaty-making power of intergovernmental organizations—Shared and exclusive competence of the European Community and its member States—“Mixed agreements”—The European Commission becoming a party to an agreement on behalf of its member States—Distribution of voting rights

17(b) International Cocoa Agreement, 2001—Internal decision of the Council of the European Union and the role of the depositary—Intention to be bound by a treaty on the international plane—Treaty-making power of intergovernmental organizations—The European Commission becoming a party to an agreement on behalf of its member States

17(c) International Cocoa Agreement, 2001—Treaty-making power of intergovernmental organizations—The European Commission becoming a party to an agreement on behalf of its member States—Right to represent another State—Distribution of voting rights—Provisions of the treaty concerned—Impartiality of the depositary—Full powers

Miscellaneous 18. The Secretary-General’s participation in events commemorating the Korean War—Establishment of the United Nations Command/Unified Command—Legal arrangements between the United Nations and the United Nations Command—Enforcement operation authorized by the Security Council under national command and control—Armistice Agreement of 27 July 1953— Security Council resolutions 83 (1950) of 27 June 1950 and 84 (1950) of 7 July 1950—General Assembly resolutions 711 (VII) of 28 August 1953 and 3390 (XXX) of 18 November 1975

19. Loss of diplomatic status of foreign Missions vis-à-vis an occupying power—Obligation of an occupying power towards neutral citizens in an occupied territory—Status of United Nations personnel and related agencies in an occupied territory—Right of expulsion for reasons of public order and safety—Security Council resolution 1483 (2003) of 22 May 2003

20. General Assembly resolution 55/5 B of 23 December 2000 (scale of assessments for the apportionment of the expenses of the United Nations)—Conversion rates— Committee on Contributions—Rule 160 of the rules of procedure of the General Assembly—Authority to interpret a General Assembly resolution

B. Legal opinions of the secretariats of intergovernmental organizations related to the United Nations

United Nations Industrial Development Organization

1. Tax exemption on salaries and emoluments of United Nations Industrial Development Organization officials—Definition of “officials of the United Nations”—Discrimination based on nationality or permanent residency—Discrimination between member States—Rationale of immunity from taxation—The Conventions on the Privileges and Immunities of the United Nations and of the Specialized Agencies—Article 27 of the Vienna Convention on the Law of Treaties, 1969 (Internal law and observance of treaties)—Customary law 558

2. Validity of service agreement signed “under protest”—National expert v. national officer 561

3. Arbitration clauses in cooperation agreements between organizations of the United Nations system (including related organizations)—Obligations vis-à-vis member States 561

4. Independence and reporting of the Legal Advisor of an agency of the United Nations system—Structure and role of the Legal Office—Specialized agencies v. subsidiary organs of the United Nations 563

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Chapter VI. Selected legal opinions of the secretariats of the United Nations
and related intergovernmental organizations

Chapter vi

seLeCteD LegAL oPinions oF the seCRetARiAts oF the UniteD nAtions AnD ReLAteD inteRgoveRnmentAL oRgAnizAtions

A. Legal opinions of the secretariat of the United nations

(Issued or prepared by the Office of Legal Affairs)

PRIVILEGES AND IMMUNITIES

1. Special Court for Sierra Leone—Legislative authority for the issuance of laissez-passer—Discretion of the Secretariat—Article VII of the Convention on the Privileges and Immunities of the United Nations, 1946—Definition of “official” of the United Nations—General Assembly resolution 76(I) of 7 December 1946—Privileges and immunities of members of the International Court of Justice—General Assembly resolution 90(I) of 11 December 1946— Independent judicial institution established by bilateral agreement

Letter to the Registrar of the Special Court for Sierra Leone

I am writing in response to your facsimile of 6 June 2003 wherein on behalf of the judges of the Special Court for Sierra Leone you inquire about any developments with regard to the Special Court’s request to obtain United Nations laissez-passer to facilitate the judges’ official travels. [ . . . ]

With reference to the Special Court’s request and, in the light of the above statement, I believe that it is necessary to address in detail the issue of where the Secretariat of the United Nations derives the authority to issue United Nations laissez-passer and whether the Secretariat has any discretion in this regard.

As I pointed out in my letter to you, dated 25 June 2002, in the case of the United Nations, the issuance of United Nations laissez-passer is regulated by article VII of the Convention on the Privileges and Immunities of the United Nations1 1 (“General Convention”). Section 24 of article VII of the General Convention provides that the United Nations may issue United Nations laissez-passer to its officials. As I further explained in the letter, the question of who constitutes an “official” is regulated by General Assembly resolution 76(I) of 7 December 1946, which states the following:

“. . . the categories of officials to which the provisions of articles V and VII (the General Convention) shall apply should include all members of the staff of the United Nations, with the exception of those who are recruited locally and assigned to hourly rates.”

In the case of the International Court of Justice, which pursuant to Article 92 of the Charter is the principal judicial organ of the United Nations and therefore distinct from other principal organs of the United Nations, including the Secretariat (Article 7), the

United Nations Treaty Series, vol. 1, p. 15.

520 United Nations Juridical Yearbook 2003

General Assembly adopted resolution 90(I) of 11 December 1946 defining the privileges and immunities of members of the International Court of Justice, officials of the Registry, assessors, the agents and counsel of the parties and of witnesses and experts. Paragraph 6

(a) of that resolution provides that:

“(a) The authorities of Members should recognize and accept United Nations

laissez-passer, issued by the International Court of Justice to the members of the Court, the Registrar and the officials of the, Court, as valid travel documents. . .”

Thus, the legislative authority for the issuance of a laissez-passer to the judges of the International Court of Justice and officials of the Registry is different from that of officials of the United Nations.

In the case of judges of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (“The International Tribunal for the Former Yugoslavia”) and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 (“The International Tribunal for Rwanda”), which have been established by the Security Council as its subsidiary organs, the Council decided by resolutions 1329 (2000) of 30 November 2000 and 1431 (2002) amending respectively their Statutes that the terms and conditions of service of their judges shall be those of the judges of the International Court of Justice (article 13 bis, paragraph 3, of the Statute of the International Tribunal for the Former Yugoslavia; article 12 bis, paragraph 3, of the Statute of the International Tribunal for Rwanda).

It follows from the foregoing that the issuance of United Nations laissez-passer is strictly regulated by the instruments and decisions referred to above adopted by the principal organs of the United Nations and the Secretariat does not have much discretion in this regard.

The Special Court for Sierra Leone was established as a sui generis treaty-based organ. The appoint...

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