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

• Pages: 453-523

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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)

1. Privileges and immunities

( a ) Note to the Ministry of Foreign Affairs of [State] regarding the introduction of a weight limitation on United Nations diplomatic bags used by the United Nations Development Programme

Section 10 of the Convention on the Privileges and Immunities of the United Nations, 1946—Vienna Convention on Diplomatic Relations, 1961, places no limitation on the weight or the size of diplomatic bags—Unilateral imposition of a weight limit is not consistent with the obligations under both conventions— Measure constitutes an additional hardship for the Organization and, thus, is inconsistent with Article 105 of the United Nations Charter

The Legal Counsel of the United Nations presents her compliments to the Ministry of Foreign Affairs of [State] and has the honour to refer to the latter’s Note Verbale of [date] addressed to international organizations accredited to [State] regarding the imposition of a 30 kilograms weight limitation on diplomatic bags The Legal Counsel has the further honour to refer to the exchanges between the United Nations Development Programme (UNDP) and the Ministry on this issue

In this regard the Legal Counsel wishes to express her concern on the introduction of a weight limitation on United Nations diplomatic bags used by UNDP and to reiterate the relevant provisions of the applicable legal instruments as follows

[State] is a party to the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946 (hereinafter the “General Convention”),^**

²to which [State] is a party since [date] without any reservations UNDP is a subsidiary organ of the United Nations and, therefore, an integral part of the Organization

According to section 10 of the General Convention, “[t]he United Nations shall have the right to use codes and to dispatch and receive its correspondence by courier or in

* This chapter contains legal opinions and other similar legal memoranda and documents

** United Nations, Treaty Series, vol 1, p 15, and vol 90, p 327 (corrigendum to vol 1)

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bags, which shall have the same immunities and privileges as diplomatic couriers and bags ” The status of diplomatic bags is regulated by article 27 of the Vienna Convention on Diplomatic Relations, 1961 (hereinafter the “Vienna Convention”),^*3which provides, inter alia, as follows:

“3 The diplomatic bag shall not be opened or detained

4 The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use ”

In light of the above, it is clear that the Convention places no limitation on the weight or the size of diplomatic bags and a unilateral imposition by the Government of [State] of a weight limit is not consistent with the General Convention or the Vienna Convention and, thus, is contrary to the Government’s obligations under these instruments

Moreover, such a measure constitutes an additional hardship for the Organization and, thus, is inconsistent with Article 105 of the United Nations Charter, which provides that “the Organization shall enjoy such privileges and immunities as are necessary for the fulfilment of its purposes” The United Nations Conference on International Organization at San Francisco in 1945, in recommending that Article 105 be included in the Charter stated as follows:

“But if there is one certain principle it is that no Member State may hinder in any way the working of the Organization or take any measures the effect of which might be to increase its burdens” (Report of Commission IV on Judicial Organization, UNCIO, Documents, Volume 13, p 705 )

The Legal Counsel wishes to assure the Ministry that the United Nations uses the diplomatic pouch for official purposes and has internal guidelines in place which regulate how the pouch may be used

The Legal Counsel would therefore be grateful if the Ministry were to ensure that the proposed weight limit not be applied to the United Nations diplomatic bag in [State]

[ ]

3 April 2012

( b ) Inter-office 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

Immunity of the United Nations and its officials from jurisdiction of Member States—Articles 100, 101 and 105 of the Charter of the United Nations—The Organization may not receive instructions on how to manage its staff or subject its officials to the local labour laws—Sections 2 and 18 of the Convention on the Privileges and Immunities of the United Nations, 1946—General Assembly resolution 76 (I) of 7 December 1946, approved the granting of the privileges and immunities referred to in articles V and VII of the General Convention to “all

3 * United Nations, Treaty Series, vol 500, p 95

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members of the staff of the United Nations, with the exception of those who are recruited locally and assigned to hourly rates”

1 This is with reference to your memorandum of [date] to the Legal Counsel, in which you requested the Office of Legal Affairs’ (OLA) guidance with respect to the Note Verbale of [State] requiring international organizations, including the United Nations, to adapt their staff contracts to the [date] Labour Law of [State] You also refer to a number of claims initiated by the United Nations staff members against the United Nations in [State] courts

2 In this regard we suggest sending a Note Verbale to the Ministry of Foreign Affairs of [State] explaining to the Ministry that the above-mentioned request is not consistent with the status of the United Nations and its officials as provided for in the Charter of the United Nations and in the Convention on the Privileges and Immunities of the United Nations, 1946 ^*4Please find enclosed a draft Note Verbale to that effect

[Enclosure]

The Resident and Humanitarian Coordinator of the United Nations presents his compliments to the Ministry of Foreign Affairs of [State] and has the honour to refer to the latter’s Note Verbale [number][date], which requests international organizations to “adapt contracts of their [Nationality] and resident foreign staff members to provisions of the [State] Labour Law” The Note Verbale further states that “any agreement that contradicts provisions of the [State] Labour Law, does not prevent them from claiming for their rights based on provisions of [State] law” The Resident and Humanitarian Coordinator has the further honour to refer to the Ministry’s Note Verbale of [date] with “a summon to appear before [City]’s court of labour for the attendance of the [date] hearing”

In this regard, the Resident and Humanitarian Coordinator wishes to express his concern with the above-mentioned requests as they are not consistent with the status of the United Nations and its officials and is inconsistent with the legal obligations of [State] under the Charter of United Nations, the Convention on the Privileges and Immunities of the United Nations, 1946 (the “General Convention”) and other applicable instruments

The Resident and Humanitarian Coordinator wishes to reiterate the relevant provisions of the applicable legal instruments as follows

Article 100 and 101 of the Charter of the United Nations provide as follows:

“Article 100

1 In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization

2 Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities

Article 101

1 The staff shall be appointed by the Secretary-General under regulations established by the General Assembly ”

4 * United Nations, Treaty Series, vol 1, p 15, and vol 90, p 327 (corrigendum to vol 1)

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Thus the Secretary-General of the United Nations, with assistance of the relevant departments and agencies, is the only authority in the Organization responsible for the appointment, dismissal and management of the United Nations staff in accordance with regulations established by the General Assembly The Organization may not receive instructions on how to manage its staff or subject its officials to the local labour laws Disputes between United Nations staff members and the Organization are subject to the internal system of administration of justice of the Organization and cannot be submitted to the national courts of Member States

The immunity of the United Nations and its officials from jurisdiction of Member States is based on the following

Article 105 of the Charter of the United Nations provides in its paragraph 1 that “the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes” Pursuant to paragraph 2 of that Article, officials of the Organization enjoy privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization

The above provisions are confirmed and further detailed in the General Convention, to which [State] has been a...