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

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Chapter VI
SELECTED LEGA L OPINIONS OF THE SECRETARIATS OF THE
UNITED NATIONS AND RELATED
INTERGOVE RNMEN TAL ORGA NIZATIONS 1*
A. L    S   U N
(Issued or prepared by the Oce of Legal Aairs)
1. Privileges and immunities
(a) Note to the Ministry of Foreign Aairs of [State] regarding the
introduction of a weight limitation on United Nations diplomatic bags used by
the United Nations Development Programme
S    C   P   I  
U N, —V C  D R , ,  
         —U   
           —
M        O , , 
  A    U  N C
e Legal Counsel of t he United Nations presents her compliments to the Ministr y of
Foreign Aairs of [State] and has the honour to refer to the latter’s Note Verbale of [date]
addressed to international orga nizations accredited to [State] regarding the imposition of
a 30 kilograms weight limitation on diplomatic bags. e Lega l Counsel has the further
honour to refer to the exchanges between the United Nations Development Programme
(UNDP) and the Minist ry on this issue.
In this regard the L egal Counsel wishes to express her concern on t he introduction of
a weight limitation on United Nations diplomatic bags used by U NDP and to reiterate the
relevant provisions of the applicable legal inst ruments as follows.
[State] is a party to the Convention on the Privi leges and Immunities of t he Unit-
ed Nations, adopted by the General As sembly on 13 February 1946 ( hereinaer the “Gen-
eral Convention”),**2to which [State] is a party since [date] without any reservations. UN DP
is a subsidiary organ of t he United Nations and, therefore, an integ ral part of the Organi-
zation.
According to section 10 of the General C onvention, “[t]he United Nations shall have
the right to use codes and to dispatch and receive its correspondence by courier or in
* is chapter conta ins legal opinions and ot her similar legal memora nda and documents.
** United Nations, Treaty Series, vol. 1, p. 15, and vol. 90, p. 327 (corrigendum to vol. 1).
      
bags, which shall have the same immunities and privileges as diplomatic couriers and
bags.” e status of diplomatic bags is regulated by a rticle 27 of the Vienna Convention on
Diplomatic Relations, 1961 (hereinaer the “Vienna Convention”),*3which provides, inter
alia, as fol lows:
“3. e diplomatic bag shall not be opened or de tained.
4. e packages constit uting the diplomatic bag must bear visible external marks
of their character a nd may contain only diplomatic documents or articles intended for
ocial use.”
In light of the above, it is clear t hat the Convention places no limitation on the weight
or the size of diplomatic bags and a uni lateral imposition by the Government of [State] of a
weight limit is not consistent with t he General Convention or the Vienna Convention and,
thus, is contrar y to the Government’s obligations under these instruments.
Moreover, such a measure constitutes an additional hardsh ip for the Organization
and, thus, is inconsistent w ith Article 105 of the United Nations Charter, which provides
that “the Organi zation shall enjoy such privileges and im munities as are necessary for the
full ment of its purposes”. e United Nations Conference on International Organization
at San Francisco in 1945, in recommending that Article 105 be included in the Charter
stated as follow s:
“But if there is one certai n principle it is that no Member State may hinder i n any
way the working of the Orga nization or take any measures the ee ct of which might be
to increase its burdens”. (Report of Commission IV on Judicial Organiz ation, UNCIO,
Documents, Volume 13, p. 705.)
e Legal Counsel w ishes to assure the Ministry that t he United Nations uses the
diplomatic pouch for ocial purposes a nd has internal guidelines in place w hich regulate
how the pouch may be used.
e Legal Counsel would t herefore be grateful if the Ministry were to ensure that
the proposed weight limit not be applied to the United Nations d iplomatic bag in [State].
[. . .]
3 April 2012
(b) Inter-oce memorandum to the United Nations Resident and
Humanitarian Coordinator and United Nations Development Programme
(UNDP) Resident Representative of [State] concerning the non-applicability of
[State] Labour Laws to the United Nations
I   U N       M
S—A ,      C   U N—T
O             
       —S      C  
 P  I    U N, —G A 
  (I)   D ,        
      V  VII   G C   “
3* United Nations, Treaty Series, vol. 500, p. 95.
  
      U N,        
       ”
1. is is with reference to your memorandum of [date] to the Legal Cou nsel, in which
you requested the Oce of Legal A airs’ (OLA) guidance with respect to t he Note Verbale
of [State] requiring international organizations, including the United Nations, to adapt
their sta contrac ts to the [date] Labour Law of [State]. You also refer to a number of claims
initiated by the United Nations st a members against the United Nations in [State] court s.
2. In this regard we sug gest sending a Note Verbale to the Ministry of Foreign Aa irs
of [State] explaining to the Minist ry that the above-mentioned request is not consistent
with the status of t he United Nations and its ocials as provided for in the Charter of
the United Nations and in the Convention on the Priv ileges and Immunities of the Unit-
ed Nations, 194 6.*4Please nd enclosed a dra  Note Verbale to that eect.
[Enclosure]
e Resident and Humanitaria n Coordinator of the United Nations presents his com-
pliments to the Minist ry of Foreign Aairs of [State] and has the honour to refer to the
latter’s Note Verbale [number][date], which requests international orga nizations to “adapt
contracts of their [Nationality] and resident foreign sta members to provisions of the
[State] Labour Law”. e Note Verbale furt her states that “any agreement that contradicts
provisions of the [State] Labour Law, does not prevent them from claiming for their r ights
based on provisions of [State] law”. e Resident and Humanitarian Coordinator has t he
further honour to refer to the M inistry’s Note Verbale of [date] with “a summon to appear
before [City]’s court of labour for the attenda nce of the [date] hearing”.
In this regard, the Resident and Humanitarian Coordinator wishes to express his
concern with the above-mentioned requests as t hey are not consistent with the status of
the United Nations and its ocials and i s inconsistent with the legal obligations of [State]
under the Charter of United Nations, the Convention on the Privileges and Immu nities of
the United Nations, 1946 (the “General Convention”) and other applicable instr uments.
e Resident and Humanitaria n Coordinator wishes to reiterate the releva nt provi-
sions of the applicable legal instr uments as follows.
Article 100 and 101 of the Charter of the United Nations provide a s follows:
Articl e 100
1. In the performance of thei r duties the Secreta ry-General and the sta sha ll not
seek or receive instruc tions from any government or from any other authority extern al
to the Organiz ation. ey shall refrai n from any action which might reec t on their posi-
tion as international oci als responsible only to the Organizat ion.
2. Each Member of the United Nations undert akes to respect the exclusively inter-
national characte r of the responsibilitie s of the Secretar y-General and the sta and not
to seek to inuence them in t he discharge of their responsibilitie s.
Art icle 101
1. e sta shall be appointed by the Secretary-General under regu lations estab-
lished by the General A ssembly.
4* United Nations, Treaty Series, vol. 1, p. 15, and vol. 90, p. 327 (corrigendum to vol. 1).

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