Chapter VIII. Decisions of national tribunals

Chapter VII

DECISIONS AND ADVISORY OPINIONS OF INTERNATIONAL TRIBUNALS

[No decision or advisory opinion from international tribunals on questions relating to the United Nations and related intergovernmental organizations to be reported for 1994.]

1. Argentina

   Judgements of the Supreme Court

   January

   PEDRO DANIEL WEINBERG

   Jurisdiction and competence: National competence. Original jurisdiction of the Supreme Court. General remarks.

   The original jurisdiction of the Supreme Court arises from the Argentine Constitution and may not be broadened, restricted or modified by legal norms.

   Jurisdiction and competence: National competence. Original jurisdiction of the Supreme Court. General remarks.

   The Supreme Court has no original jurisdiction in the criminal proceedings instituted against an Argentine citizen who performs technical duties in an international organization — the Inter-American Center for Research and Documentation on Vocational Training, a subsidiary organ of the International Labour Organization — on the basis of an accusation unrelated to his specific duties, since he is not a diplomatic agent in the strict sense, does not represent the Organization and does enjoy full immunity. The existence and scope, where applicable, of the immunities from which the accused might benefit, in accordance with his status and the relevant legal norms, will have to be determined by the competent judge.

   Opinion of the Public Prosecutor of the Supreme Court

   Supreme Court:

   The alternate federal judge for the federal court of Río cuarto declared that that tribunal was not competent to hear the case brought against Pedro Daniel Weinberg for a violation of article 213 bis of the Penal Code and Act 20.840 owing to the fact

   that the accused is an “expert” in the Inter-American Center for Research and Documentation on Vocational Training, a subsidiary organ of the International Labour Organization, which status, in the opinion of the aforesaid magistrate, is subject to the provision of articles 100 and 101 of the Argentine Constitution, which establish the original jurisdiction of the Supreme Court. For this reason, he referred the case to the Supreme Court.

   You have consistently upheld the principle according to which such competence must be construed strictly, and may not be broadened, restricted or modified by legal norms (cf., inter alia, Judgements 270:78, 271:145, 280:176 and 203, and 284:20).

   On the basis of this premise, it should be pointed out that the aforesaid main provisions apply only to ambassadors, public ministers and foreign consuls and that, consequently, officials of international organizations cannot be included in these expressly stated categories, as has been done in the case under consideration, without running the risk of contradicting the aforementioned principle of jurisprudence.

   With regard to this matter, the Supreme Court stated in Judgement 250:775 that the granting of diplomatic privileges by legislative means does not give rise to its original jurisdiction.

   In the case under consideration, the function of the accused is not of a recognized diplomatic nature in the strict sense, as is made clear by the report of the Ministry of Foreign Affairs, which is contained in the file; in accordance with the consistent practice of the Court, the Ministry is the appropriate authority for establishing diplomatic status for purposes of the Court’s jurisdiction (Judgements 238:313, 250:775, etc.).

   The difference between the two statuses becomes clear if one bears in mind that officials of international organizations, such as the International Labour Organization, are governed by a convention of their own (Convention on the Privileges and Immunities of the Specialized Agencies, adopted by the United Nations General Assembly in its resolution 179 (II) of 21 November 1947). In this connection, one should, owing to its importance, draw attention to the regime governing immunities which appears to be more limited in scope than the regime established for diplomats in the strict sense, since it is stressed that such immunities are accorded “so far as is necessary for the effective exercise of their functions”, as long as they exercise such functions not for their personal benefit but in the interests of the Organization, which, in addition shall have “the right and the duty to waive the immunity of any expert in any case where in its opinion and the immunity would impede the course of justice” (convention on the Privileges and Immunities of the Specialized Agencies; annex I, approved on 1 April 1974).

   Moreover, in my opinion, the fact that the accused is an Argentine citizen is of paramount importance in the case under consideration. This is, in fact, a long-standing principle, formulated by Carlos Calvo (see his Treatise on International Law, Paris, 1868, pp. 236-237), which states that, when a national of a country represents a foreign country in his own country, he shall be subject to the local laws in connection with acts that are unrelated to his position. It therefore seems to me that it follows logically from this principle that the tribunal for trying Pedro Daniel Weinberg for alleged crimes committed prior to his appointment to the position he holds in an international organization, insofar as it is not clear that he had been accredited by Argentina to carry out duties relating to his position, cannot be the special court established by the aforementioned constitutional provisions.

   In the light of the foregoing, it is my opinion that the present case does not fall within your original jurisdiction.

   15 January 1980

   HÉCTOR J. BAUSSET

   MARCELO EDUARDO BOMBAU

   Jurisdiction and competence: Federal competence. Original jurisdiction of the Supreme Court. Diplomatic and consular agents.

   The original jurisdiction of the Court includes ambassadors, public ministers and foreign consuls (art. 101 of the Argentine Constitution). Since this limitation may not be extended by legislation, the diplomatic privileges that might be enjoyed by officials of an international body (cf. Art. V, sect. 18, subpara. (a), of the Convention on the Privileges and Immunities of the United Nations), cannot alter such jurisdiction.

   Jurisdiction and competence: Federal competence. Original jurisdiction of the Supreme...