seLeCteD LegAL oPinions oF the seCRetARiAts oF the UniteD nAtions AnD ReLAteD inteRgoveRnmentAL oRgAnizAtions
Legal opinions of the secretariat of the United nations
(Issued or prepared by the Office of Legal Affairs)
PRIVILEGES AND IMMUNITIES
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:
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 appointment of judges of the Special Court for Sierra Leone is regulated by the agreement concluded between the United Nations and the Government of Sierra Leone2 and the Statute of the Court, which forms an integral part thereof (articles 1 and 2 of the agreement, article 13 of the Statute). The latter provides that of the eight judges of the Special Court, five are appointed by the Secretary-General of the United Nations and three by the Government of Sierra Leone. The judges of the Special Court enjoy the privileges and immunities specified in the agreement (article 12), which are the privileges and immunities of diplomatic agents, and the expenses of the Special Court are borne by voluntary contributions.
The Special Court for Sierra Leone is, therefore, an independent judicial institution established by a bilateral agreement. The judges of the Special Court are not officials of the United Nations and their status is not regulated by decisions of either the General Assembly or the Security Council. I regret, therefore, to inform you in response to your inquiry that under the circumstances, the Secretariat of the United Nations does not presently have any authority to issue United Nations laissez-passer to the judges of the Special Court.
For the text of the Agreement and the Statute of the Special Court, see United Nations Treaty Series, vol. 2178, p. 137.
Since, according to your facsimile, the judges may appeal on this matter directly to the Secretary-General, I shall bring this response to his attention.
20 June 2003
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
Note to the Under-Secretary-General of the Department of Peacekeeping Operations, United Nations
I refer to the Code Cable (N°. . . . ) of 9 July 2003 to me, which was copied to you,
regarding the procedures that have been followed by Coalition forces with regard to the stopping and searching of vehicles at checkpoints.
It appears that those procedures are as follows:
• vehicles are required to stop at checkpoints;
• all the occupants may then be required to exit the vehicle;
• the occupants of the vehicle may then be required to produce identification;
• the inside of the vehicle may then be physically searched;
• the outside of the vehicle may also be subjected to a visual inspection.
These procedures are applied to all vehicles. No exception is made for United Nations vehicles.
It appears that Coalition forces are now willing to review the application of these procedures to United Nations vehicles and to adopt new, modified procedures that would take into account the privileges and immunities of the United Nations and ensure minimal interference with United Nations operations.
UNAMA seek our advice regarding the application in this connection of the relevant provisions of the Convention on the Privileges and Immunities of the United Nations3 and of the Convention on the Privileges and Immunities of the Specialized Agencies.4 Our advice is as follows.
Article II, section 3, of the Convention on the Privileges and Immunities of the United Nations (the “General Convention”) provides:
“The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.”
A vehicle belonging to the United Nations is clearly “property” or an “asset” of the Organization. This is so whether or not that vehicle carries United Nations markings.
United Nations Treaty Series, vol. 1, p. 15.
United Nations Treaty Series, vol. 33, p. 261.
522 United Nations Juridical Yearbook 2003
Section 3 of the Convention therefore applies to make any such vehicle immune from “search”.
As regards what constitutes a “search”, the United Nations has consistently maintained that section 3 of the General Convention bars national authorities from verifying the contents of United Nations property. Accordingly, in the case of United Nations supplies contained in sacks, envelopes or containers, national authorities are precluded from opening those sacks, envelopes or containers in order to verify their contents. Similarly, in the case of a vehicle, they are barred from opening the vehicle to inspect within, as, for example, by opening the doors of the passenger compartment, lifting the bonnet (hood) or opening the boot (trunk).
Once Coalition forces have ascertained that a vehicle is indeed a...