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

• Pages: 369-415

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Chapter VI

SELECTED LEGA L OPINIONS OF THE SECRETARIATS OF THE

UNITEDNATIONS AND REL ATED INTERGOVERNMENTAL

ORGANIZATIONS*

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], concerning privileges

and immunities extended to locally-recruited sta  who are nationals of [State]

A 10 5   C   U N—A V   C-

  P  I    U N, 1946—N -

       ,

           

—D     V C  D R,

1961,        —I -

           

e Legal Counsel of t he UnitedNations presents her compliments to the Minister for

Foreign Aairs of [State] and has the honour to refer to the ongoing negotiations be tween

the [UnitedNations entity] and [State] for the establishment of a [UnitedNations entity]

oce in [State].

In this regard, the Legal Counsel understands that several meetings have taken

place between ocials of [UnitedNations entity] and t he authorities of [State] to discuss

the establishment of the [United Nations entity] oce, including informal discussions

with [Name], the Permanent Representative of [State] to the UnitedNations in [City] on

[date], as well as meetings on [dates] with various individuals in the Ministry of Foreign

Aairs in [City], including (i) [Name] and [Name] from [Oce], (ii) [Name], the [Title]

of [Oce], (iii) [Name], [Title] of [Oce], (iv) [Name] from [Oce] and (v) [Name], the

[Title] of[Oce].

The Legal Counsel further underst ands, based on these meetings, that the

Government of [State] has taken the position that privileges and immunities may not be

extended to members of the [UnitedNations entity] oce who are nationals of [State]. e

Legal Counsel w ishes to note that the Government’s position is in direct contradiction

* is chapter cont ains legal opinions and ot her similar legal memor anda and documents.

      

to its obligations to the UnitedNations under international law and the Legal Counsel

respectfu lly requests that the Government of [State] reconsider its position.

e Legal Counsel w ishes to point out that as a member of the UnitedNations, [State]

is bound by the Charter of t he UnitedNations. e status of the UnitedNations and its sta

members in [State] is governed by Article 105 of the UnitedNations Charter. Pursua nt to

paragraph 1 of Art icle 105 of the Charter of the UnitedNations, “[t]he Organization sha ll

enjoy in the territory of each of its Members such priv ileges and immunities as are neces-

sary for the fu llment of its purposes.” Paragraph 2 of Article 105 of the UnitedNations

Charter provides that “[r]epresentatives of the Members of the UnitedNations and ocials

of the Organization shall simila rly enjoy such privileges and immunities as are neces-

sary for the independent exercise of t heir functions in connection w ith the Organization”.

Finally, paragraph 3 of Ar ticle 105 stipulates that “[t]he General Assembly may make rec-

ommendations with a view to determining the det ails of the application of par agraph 1

… of this Article or may propose conventions to the Members of the UnitedNations for

this purpose.”

In order to give eect to Article 105 of the UnitedNations Char ter, the General

Assembly of the UnitedNations adopted the Convention on the Privi leges and Immunities

of the UnitedNations, 1946 (“the General Convention”),* which was acceded to by [State]

on [date], without reservation. As an integra l part of the UnitedNations, [UnitedNations

entity] is entitled to the privi leges and immunities provided for in the Genera l Convention.

e Legal Counsel w ishes to note that the legal regime governing the privi leges and

immunities of the UnitedNations and its ocia ls is separate and distinc t from the regime

governing the privi leges and immunities enjoyed by States and their diplomatic personnel

as codied in t he Vienna Convention on Diplomatic Relations.** Accordingly, when consid-

ering the status of UnitedNations ocia ls who are national sta, reference must be made

to the provisions of the General Convention and relevant General Assembly resolutions

and not to practice under the Vienna C onvention on Diplomatic Relations.

Pursuant to art icle V, section 18, subparagraph (b) of the General Convention, of-

cials of the UnitedNations are entit led to a various range of privileges and immunit ies,

including immunit y from legal process in respect of words spoken or written and a ll acts

performed by them in their ocial capacity as well as immunity from nationa l service

obligations. In setti ng forth these privileges and immunities, the General Assembly did

not dierentiate between internationa lly recruited sta  and nationally recru ited sta. It

should be noted in this rega rd that General Assembly resolution 76 (I) specical ly provides

for “the granting of priv ileges and immunities referred to in Ar ticle V ... to all members of

the sta of the UnitedNations, w ith the exception of those who are recruited loca lly and

are assigned to hourly rates”. erefore, locally-recruited sta  members from [State] who

are not assigned to hourly rates als o enjoy the privileges and immunities of a rticle V of the

General Convention.

e Legal Counsel w ishes to point out that it is a fundamenta l principle of interna-

tional law that internationa l treaty obligations may not be diminished on the basis of t he

national legislation of [State]. According to article 27 of the Vien na Convention on the Law

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

** Ibid., vol. 500, p. 95.

  

of Treaties, 1969,* which codies cu stomary international law applicable to international

treaties, “[a] party may not invoke the provisions of its interna l law as justication for its

failure to perform a treat y.” is principle is also reected in section 34 of the General

Convention, according to which the Government of [State] undertook an obligat ion to be

“in a position under its own law to give eect to the terms” of the General Convention.

Accordingly, the provisions of national legislat ion in [State] cannot be a basis for [State]

to fail to ful l its obligations which were committed to by the Government when [State]

acceded to the General C onvention.

If [State] could invoke its national legislation as a basis for not adher ing to the terms

of the General Convention, this wou ld not only place [State] in an unfair position vis-à-vis

other Member States party to t he General Convention, but would be an interpretation

of the General Convention that would not be wit hin the spirit of the u nderlying provi-

sions of the Charter of the United Nations, and in part icular, paragraph 2 of Ar ticle 2

and paragraphs 1 a nd 2 of Article 105 thereof. Moreover, if the 193 Member States of the

UnitedNations could generally i nvoke provisions of their national legislations as a basis

for failing to fu ll their obligations pursua nt to the Charter of the UnitedNations or other

international treaties , this would undermine the very e ssence of the principle of pacta sunt

servanda set forth in art icle 26 of the Vienna Convention on the Law of Treaties, namely

that “every treaty in force is bind ing upon the parties to it and must be performed by t hem

in good faith”.

e Legal Counsel t herefore respectfully requests t he Government of [State] to ensure

that the [UnitedNations entity] Oce Agreement guara ntees the privileges and immuni-

ties provided for under the General C onvention to ocials who are nationals of [State]. In

light of the importa nce of this matter, the Legal Counsel would be gratef ul if the relevant

representatives of the Government of [State] would attend a meeting wit h members of the

Oce of Legal Aa irs, at a mutually convenient time, to discuss t his matter further.

…

17 January 2013

(b) Note to the Ministry of Foreign Aai rs of [State], concerning privileges

and immunities enjoyed by certain categories of UnitedNations personnel

in [S tate]

A 105   C   U N—A V   C

  P   I    UN—G A -

 76 (I)         UN  

       —G  A -

 239 (III)—S A P       

 UN       —V

A T            8   G-

 C —R  S       U-

* UnitedNations, Treaty Series, vol. 1155, p. 331.