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

• Pages: 327-358

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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 Permanent Observer Mission of the African Union to the

UnitedNations concerning full diplomatic status in the hostcountry

S   A U P  O M   UN

     O   A U—F   

       UN   A105 

 UN C    1947 H A   

UN   U S  A—P     -

                  S

I have the honour to refer to your letter of 4 July 2014 seeking the assista nce of the

Secretary-Gener al to ensure that the Africa n Union (AU) Permanent Observer Mission to

the UnitedNations obtains “fu ll diplomatic status from the US as the Host Cou ntry of the

UnitedNations”. In your letter, you note that the Organizat ion of African Unity (OAU)

Permanent Observer Mission to the United Nations, which was the predecessor to the

AU Permanent Observer Mission, was previously accorded such stat us in 1974, but that it

was withdrawn i n 1996 by a decision of the United States Government. You also note that

the AU Commission has undertaken consultations with ocia ls from the United States

Mission to the UnitedNations, as well as ocia ls of the UnitedNations Secretariat, with a

view to restoring the priv ileges and immunities accorded prior to 1996. You further note

that “investigation revealed that the [AU Permanent Observer Mission] is not appropri-

ately accredited by the UnitedNations, which appears to be impac ting its diplomatic status

with the US Government” a nd that it is your “considered view that the diplomatic stat us

of the [AUPermanent Observer Mission] is predicated upon its appropriate accreditation

by theUN”. Your letter has been referred to this Oce for a response.

With respect to the issue of “accreditation”, I wish to recall that the Genera l

Assembly, in its resolution2011 (XX) of 11 October 1965, entitled “Co-operation be-

tween the United Nations a nd the Organization of African Unity”, requested the

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

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

Secretary-Gener al of the UnitedNations “to invite the Administr ative Secretary-General

of the Organization of African Unity to attend sessions of the General Assembly as an

observer”. e UnitedNations and the OAU also concluded the “Cooperation Agreement

between the UnitedNations a nd the Organization of African Unity” on 9 October 1990

(the 1990Cooperation Agreement), in which the two Orga nizations agreed to reciprocal

representation at meetings organiz ed under the auspices of theother.

ereaer, in its decision56/475 of 15 August 2002, entitled “Succession by the Af rican

Union to observer status in the G eneral Assembly”, the General Assembly decided t hat “the

African Union would assu me the rights and responsibilities of the Or ganization of African

Unity as an observer inv ited in accordance with resolution2011 (XX) and the [1990] co-

operation agreement between the UnitedNations and t he Organization of AfricanUnit y”.

I am of the view, and the pract ice of the UnitedNations conrms, that the invitation

contained in General Assembly resolution2011 (XX), the 1990 Cooperation Agreement

and General Assembly deci sion56/475 provide the necessary basis for t he AU to establish

a Permanent Observer Mission to the UnitedNations and for its representatives to par tici-

pate in the work of the General Ass embly and other organs as observers. Moreover, as you

know, representatives of the AU Permanent Observer Mission have in fact attended ma ny

UnitedNations meetings in the capacit y ofobservers.

However, the privileges, immunities and facilities to be accorded to observers, in-

cluding the AU Permanent Observer Mission and its representatives, are not specical ly

outlined in any Genera l Assembly resolution or international legalinstru ment.

In the absence of any specic international legal regulation of the privileges and

immunities of entities i nvited to participate as observers in United Nations meetings

at Headquarters, United Nations practice has been to consider such issues principal-

ly in the light of the pertinent provisions of the Charter of the UnitedNations and the

1947Agreement between the UnitedNations and the United States of A merica regarding

the Headquarters of the United Nations (the Headquarters Agreement). It has been the

consistent view of the Organi zation that a permanent observer delegation, as an inv itee to

meetings of UnitedNations organs, is entit led to enjoy in that capacity cer tain functional

immunities necessary for the performance of ocial functions vis-à-vis those organs.

ese immunities ow by necessa ry intendment from Article105 of the Charter of the

UnitedNations. e UnitedNations has consistently maintained that a permanent ob-

server delegation would enjoy functiona l immunity from legal process in resp ect of words

spoken or written and all acts performed by members of the obser ver delegation in their

ocial capacity before releva nt UnitedNations organs. In addition to that f unctional im-

munity, a permanent observer delegation would al so enjoy inviolability for ocial papers

and documents relating to thei r relations with the UnitedNations. If such inviolability i s

to have any meaning, it als o necessarily extends to the premises of t hemission.

In addition, observer delegations benet from t he following provisions of the

Headquarters Agreement concerni ng transit to and from the headquarters district.

Section11 of the Headquarters Agreement provides that “the federa l, state or local authori-

ties of the United States shal l not impose any impediments to transit to or from the head-

quarters dist rict of… persons invited to the headquarters di strict by the UnitedNations”,

and that “the appropriate America n authorities shall a ord any necessary protect ion to

such persons while in tra nsit to or from the headquarters distr ict.” Furthermore, according

  

to section12, the facilities referred to in section11 “shall be applicable ir respective of

the relations between the Govern ments of the persons referred to in that sec tion and the

Government of the United States”. Section13 further provides that the host State shall

grant visas “w ithout charge and as promptly as possible” to the persons in question and

also exempts such persons from being requ ired “to leave the United States on account of

any activities p erformed by [them] in [their] ocialcapacity”.

e Headquarters Agreement does not confer diplomatic priv ileges and immunities

on observer delegations. I would note however that diplomatic status may of cours e be ex-

tended to an observer delegation by vir tue of a special arrangement wit h the host State and

that this would be a matter for negotiat ion between the host State and the intergovernmen-

tal organizat ion concerned. If the AU continues to encounter diculties in th is endeavour,

this Oce would be prepared to i ntercede with the United States Mission, as appropriate.

[…]

24 July2014

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

the imposition of certain taxes i n respect of fuel purchases on

[aUnitedNationsMission]

I  [ UN M]      

       —C    -

          II, 7(A)  

C   P  I    U N—E-

         C   P-

  I    U N     S--F

A—E   [ UN M],    

  UN,           

1. e Legal Counsel of the United Nations presents his compliments to the

Permanent Representative of [State] to the UnitedNations and has the honour to re-

fer to the Note Verbale from the [UnitedNations Mission] to the Permanent Secretary,

Ministry of Foreign Aairs, dated 20 September 2010, regarding the imposition on [the

UnitedNations Mission] of a compulsory stock obligation (CSO) fee under its fuel con-

tracts wit h third party vendors, as well a s the Note Verbale, in response, from t he Ministry

of Foreign Aairs to [the UnitedNations Mission], dated 13 May 2011 (both documents

attached hereto for ease ofreference).

2. e Legal Counsel w ishes to recall that, pursuant to the provisions of ar ticle II,

sec tion 7(a) of the Convention on the Privileges and Im munities of the UnitedNations to

which [State] is a party since […] without reservation, the UnitedNations, its assets, in-

come and other property shal l be “[e]xempt from all direct ta xes; it is understood, however,

that the UnitedNations wi ll not claim exemption from taxes which are, in fact, no more

than charges for public uti lityservices”.

3. e Legal Counsel notes t hat under [the UnitedNations Mission’s] previous and

current fuel contracts w ith third party vendors for the provision of fuel and related ser-

vices, such vendors have invoiced [the UnitedNations Mission] the CSO fee as a separate

line item on each invoice, currently ca lculated as [amount] per litre of fuel. e Lega l