Chapter VII. Decisions and Advisory Opinions of International Tribunals

Arbitration Tribunal constituted by the Government of the French

Republic and the United Nations Educational, Scientific and Cultural Organization to consider the question of the tax regime governing pensions paid to retired UNESCO officials residing in France

AwArd

    The Arbitration Tribunal composed of:

Mr. Kéba Mbaye, Presiding Arbitrator

Mr. Jean-Pierre Quéneudec, Arbitrator

Mr. Nicolas Valticos, Arbitrator

After deliberation, makes the following award:

1.   On 2 July 1954, the French Republic and the United Nations Educational,  Scientific and Cultural Organization (UNESCO) signed an agreement regarding the headquarters of UNESCO and its privileges and immunities on French territory (hereinafter “Headquarters Agreement” or the “Agreement”). Article 22 of that Agreement, entitled “Officials and experts”, states:

   “Officials governed by the provisions of the Staff Regulations of the Organization

   “(a) Shall be immune from legal process in respect of all activities performed by them in their official capacity (including words spoken or written);

   “(b) Shall be exempt from all direct taxation on salaries and emoluments paid to them by the Organization;

   “(c) Subject to the provisions of article 23, shall be exempt from all military service and from all other compulsory service in France;

   “(d) Shall, together with their spouses and the dependent members of their families, be exempt from immigration restrictions and registration provisions relating to foreigners;

   “(e) Shall, with regard to foreign exchange, be granted the same facilities as are granted to members of diplomatic missions accredited to the Government of the French Republic;

   “(f) Shall, together with their spouses and dependent members of their families, be accorded the same facilities for repatriation as are granted to members of diplomatic missions accredited to the Government of the French Republic in time of international crisis;

   “(g) Shall, provided they formerly resided abroad, be granted the right to import free of duty their furniture and personal effects at the time of their  installation in France;

   “(h) May temporarily import motor cars free of duty, under customs certificates without deposits.”

2. The Agreement was thus signed following the decision to establish the headquarters of UNESCO, a specialized agency of the United Nations, in Paris.

3. A number of UNESCO officials subsequently decided to reside in Paris after retirement. It appears that 1,867 retired UNESCO officials have a mailing address in France, and in addition 1,877 beneficiaries of retired UNESCO officials reside in France.

4. UNESCO does not have its own staff pension fund. It is affiliated with the United Nations Joint Staff Pension Fund, along with a number of other organizations in the United Nations system.

   The Joint Staff Pension Fund provides for a retirement benefit, early retirement benefit, deferred retirement benefit, disability benefit, child’s benefit, widow’s or widower’s benefit, secondary dependant’s benefit, withdrawal settlement or residual settlement.

   Enrolment in the Fund is not mandatory, although it is rare that staff members do not participate. However, at the time of recruitment a staff member may opt out. This provision is mentioned in the UNESCO Staff Regulations and Staff Rules.

5. The full title of the 1954 Agreement is the “Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory”.

   The third preambular paragraph of the Agreement reads as follows:

   “Desiring to regulate, by this Agreement, all questions relating to the establishment of the permanent headquarters of the United Nations Educational,  Scientific and Cultural Organization in Paris and consequently to define its privileges and immunities in France”.

6. Prima facie, therefore, it would seem that the purpose of the Agreement with respect to privileges and immunities was to define those accorded to UNESCO in France. However, the Agreement could not deal only with headquarters questions. At that time, France had not acceded to the Convention on the Privileges and Immunities of the Specialized Agencies of 1947. It was therefore necessary, as France notes, for the two Parties to include provisions in the Headquarters Agreement relating to the privileges and immunities to be enjoyed by officials of UNESCO.

7. Relations between France and UNESCO have been generally trouble-free. Nevertheless, it appears that differences between the Parties emerged between 1975 and 1980 concerning the interpretation and application of article 22(b) of the Agreement. Its deliberations up to now do not enable the Tribunal to ascribe the emergence of the dispute either to a reversal of French practice or, on the contrary, to the implementation of a stated policy by the authorities. However, it seems to the Tribunal that there was a period during which circumstances were such that a difference on the question now at issue between UNESCO and France arose between the Parties to the 1954 Agreement.

   * * *

8. Be that as it may, a dispute did definitely arise in the 1980s and 1990s over the application of article 22(b) of the 1954 Agreement. The subparagraph reads as follows:

   “Officials governed by the provisions of the Staff Regulations of the Organization

   “(a) . . .

   “(b) Shall be exempt from all direct taxation on salaries and emoluments paid to them by the Organization”.

   The dispute concerns the interpretation of the above-cited provisions.

9. The view of UNESCO is that “. . . article 22(b) of the 1954 Headquarters Agreement is applicable to former UNESCO officials residing in France and drawing, after separation from service, a retirement pension paid by the United Nations Joint Staff Pension Fund”.

10. The Tribunal will deal later with the subsidiary claim of UNESCO and what divides the parties on that issue.

11. According to France, the Headquarters Agreement governs the obligations of the host State, not the obligations of the State of residence of former officials. In that regard, it states in its counter-memorial that:

    “[A]rticle 22(b) of the Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory . . . does not apply to former UNESCO officials residing in France and drawing, after separation from service, a retirement pension paid by the United Nations Joint Staff Pension Fund”.

12. In agreeing to submit their dispute to arbitration, the Parties had reference to article 29 of the Headquarters Agreement.

    Article 29 of the Agreement reads as follows:

    “1. Any dispute between the Organization and the Government of the French Republic concerning the interpretation or application of this Agreement, or any supplementary agreement, if it is not settled by negotiation or any other appropriate method agreed to by the parties, shall be submitted for final decision to an arbitration tribunal composed of three members; one shall be appointed by the Director-General of the Organization, another by the Minister of Foreign Affairs of the Government of the French Republic and the third chosen by those two. If the two arbitrators cannot agree on the choice of the third, the appointment shall be made by the President of the International Court of Justice.

    “2. The Director-General or the Minister of Foreign Affairs may request the General Conference to ask an advisory opinion of the International Court of Justice on any legal question raised in the course of such proceedings. Pending an opinion of the Court, the two parties shall abide by a provisional decision of the arbitration tribunal. Thereafter, this tribunal shall give a final decision, taking into account the advisory opinion of the Court.”

    In accordance with that article, the Parties set up an Arbitration Tribunal (“the Tribunal”) composed of three members. UNESCO appointed Mr. Nicolas Valticos and France appointed Mr. Jean-Pierre Quéneudec. These two arbitrators chose a third, Mr. Kéba Mbaye, to serve as presiding arbitrator.

13. The Parties then signed an agreement to arbitrate the dispute (“Arbitration Agreement”) on 19 April 2001 in Paris. Article II of the Arbitration Agreement defined the mandate of the Tribunal as follows:

    “Ruling in accordance with international law and in particular with international civil service law, the Tribunal is asked to say whether article 22(b) of the Agreement is applicable to former UNESCO officials residing in France and drawing, after separation from service, a retirement pension paid by the United Nations Joint Staff Pension Fund.”

14. With the approval of the parties, the Tribunal adopted a mission statement, part III of which summarizes the matter in these terms:

    “The Parties, being unable to agree as to the application of the Agreement between France and UNESCO regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory signed in Paris on 2 July 1954 (the ‘Agreement’), decided to establish an arbitration tribunal to resolve the dispute. The Arbitration Agreement signed on 19 April 2001 in Paris by the Parties stipulates in article II that, ‘[r]uling in accordance with international law and in particular with international civil service law, the Tribunal is asked to say whether article 22(b) of the Agreement is applicable to former UNESCO officials residing in France and drawing, after separation from service, a retirement pension paid by the United Nations Joint Staff Pension Fund’.”

15. Each Party appointed an agent. UNESCO appointed Mr. Stany Kol and France appointed Mr. Ronny Abraham.

    The place of arbitration is Paris.

    The language of arbitration is French.

    The Tribunal appointed Mr. Ousmane Diallo, Clerk, to assist it.

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