Chapter VI. Selected legal opinions of the Secretariat of the United Nations and related inter-governmental organizations

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CHAPTER VI

SELECTED LEGAL OPINIONS OF THE SECRETARIAT OF THE UNITED NATIONS AND RELATED INTER-GOVERNMENTAL ORGANIZATIONS

1. LEGAL OPINIONS OF THE SECRETARIAT OF THE UNITED NATIONS

   (Issued by the Office of Legal Affairs)

   le Accreditation of Permanent Obse...·vers by non-members at United Nations

   Headquarters.

   Memorandum to the Acting Secretary-General

   Policy of the Organization regarding Permanent Observers

   1. In decidir.g whether or not to accord certain facilities to a Perrranent Observer, it has been the policy of the Organization to make such facilities available only to those appointed by non-members of the United Nations which are

   "-

   full members of one or more specialized agencies and are generally recognized by Members of the United Nations. Y

   Legal basis for the institution of Permanent Observers

   2. There are no specific provisions relating to Perrranent Observers of ncn-member States in the United Nations Charter, in the Headquarters Agreement with the United States Government or in General Assembly resolution 257 (Ill) of

   3 December 1948 relating to Permanent Missions of Member States. The Secretary-General referred to Permanent Observers of non-members in his report to the ~ourth

   session of the Assembly on Permanent Missions (A/939), but no specific action was taken by the Assembly either at that time or later to provide an express legal basis for the institution of Permanent Observers. It therefore rests purely on practice as so far followed.

   Y A Permanent Observer was designated by the Government of Switzerland in the summer of 1946 and the practice of designating such Observers has been followed by Switzerland since that time. Observers were subsequently appointed by certain States whf.ch later became Members of the United Nations, including Austria, Finland, Italy and Japan. Certain other States, which are not Members of the Organization at the present time, maintain Permanent Observers, namely the Fede ra.L Republic of Germany (since October 1952), Monaco (since May 1956), the Republic of Korea (since February 1949), and the Republic of Viet-Nam (since March 1952). I ...

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   Facilities accorded to Permanent Observers

   3. Since Permanent Observers o~ non-member States do not have an o~~icially

   recognized status, ~acilities which are provided them by the Secretariat are

   strictly con~ined to those which relate to their attendance at pUblic meetings and

   are generally o~ the same nature as those extended to distinguished visitors at United Nations Head~uarters. The Protocol Section arrang8s ~or their seating at

   such meetings in the. public gallery and ~or the distribution to them o~ the relevant unrestricted documentation. A list o~ their names is appended, for convenience of' re~erence, to .the List o~ Permanent Missions to the United Nations

   published monthly by the Secretariat, as Permanent Observers o~ten represent their Governments at sessions o~ United Nations organs o~ which their Governments are members, or at con~erences convened by the Organization to which their Governments

   h~ve been invited to participate.

   4. No other ~ormal recognition or protocol assistance is extended to Perreanent Observers by the Secretariat. Thus no special steps are taken to ~acilitate the

   granting o~ United States visas to them and their personnel, nor ~or ~acilitating

   the establishment o~ their o~~ices in New York. Communications in~orming the

   Secretary-General o~ their appoirtmen~ are merely acknowledged by the Secretary-General or on his beha~ and they are not received by the Secretary-General ~or

   the purpose o~ presentation o~ credentials as is the case ~or Permanent Representatives o~ States Members o~ the Organization.

   Permanent Observers and the question o~ privileges and immunities

   5. Permanent Observers are not entitled to diplomatic privileges or immunities under the Head~uarters Agreement or under other statutory provisions o~ the host

   State. Those among them who ~orm part o~ the diplomatic missions o~ their Governments to the Government o~ the United States may enjoy immunities in the United States ~or that reason. I~ they are not listed in the United States diplomatic list, whatever ~acilities they may be given in the Un~ted States

   are merely gestures o~ courtesy by the United States authorities.

   22 August 1962.

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   2. ~egal position regarding the import of arms and war materials by 'the

   Cen~ral Government of the Republic of the Congo - Interpretation of paragraph 6 of General Assembly resolution 1474 (ES IV) of

   20 September 1960 - Interpretation of paragraph 6 of the Security Council resolution of 24 November 1961.

   Memorandum to the Secretary-General

   1. The resoluticns of the General Assembly and the Security Council relating to the Congo contain several provisions ~irected against the importation of arms

   or other materials of war into the Congo. The first of these provisions is found in paragraph 6 of General Assembly resolution 1474 (ES IV) of 20 September 1960. This paragraph reads as follows:

   llThe General Assembly •••

   116. \'I'ithout prejudice to the sovereign rights of the Republic of the Congo, calls upon all States to refrain from the direct and indirect provision of arms or other materials of 'var and military personnel and other assistance for military purposes in the Congo during the temporary period of military assistance through the United Nations, except upon the re~uest of the United Nations through the Sec~etary-General for carrying out the purposes of this resolution and of the resolutions of 14 and 22 July and of 9 August 1960 of the Security Council. fl

   2. It was made clear by the sponsors of the resolution that this provision was intended to exclude all military aid to the Congo except through and at the request of the United Nations. The representative of Ghana, who introduced the resolution, declared that, under it, flno help whatsoever should be sent to the Congo without the express re~uest of the United Nations, and that this help

   should go only through the medium of the Organization". (A/PV.860, ~ara. 164). The representative of Tunisia, referring to this provision of the resolution, stated that flsuch a prohibition also imposes on the young Republic of the Congo itself the obligation to refrain from appealing for such assi8~ance for military

   purposes during the period of military assistance through the United Nations ll• (A/PV.860, para. 113). He added that such a prohibition "Ln no vray infringes the fundamental principle of respect for the absolute sovereignty of the Congolese Government and is, so to spea1~, merely a 'temporary injunction' in

   the interests of world peace, vrithout prejudice to the sovereign rights of any State ll• (Ibid.) This observation by one of the sponsors of the resolution can

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   reasonably be regarded as expressing a general consensus that °bhe injunction to the Republic of the Congo to refrain from seek~ng or accepting military assistance

   except through the United Nations was fully consonant ivith the independence and sovereignty of the Government.

   ;. In its resolution of 21 February 1961 the Security Council reaffirmed this resolution of the General Assembly and reminded all StateE'- of their obligations. Statements made by various representatives at the CotUlcil when this resolution was adopted indicate clearly the intention to authorize the United Nations to exclud0 the bringing of material into the Congo other than ,vith the approval of the United Nations.

   4. The most recent resolution of the Security Council, adopted on

   24 November 1961, recalls the previous resolutions and contains the following paragraph relating to the supply of arms:

   116. Requests all States to refrain from the supjLy of arms, equipment or other material which could be used for warlike purposes, and to take the necessary measures to prevent their nationals from doing the same, and also to deny transportation and transit facilities for such supplies across their territories) except in accordance with the decisions, policies and purposos of the United NabLonsj 1I •

   5. This resolution also includes several provisions directed against the secessionist activities of Katqnga, and declares its full support for the Central Government of the Congo and lithe determination to assist that Government, in accordance with the decisions of the United Nations, to m~intain law and order and

   national integrity ••• 1I (paragraph 9). In view of these provisions, it may be contended by some Member Governments that the furnishing of war materials to the Central Government, to be used by it to put do~! the secessionist activities in Katanga and e'Lsewhere, would be "Ln accordance with thE.- decisions, policies and purposes of the Unitecl Nations ll •

   6. In answer to this argument, it may be maintained that, although the Security Council has taken a strong position against secession and in support of the Central Government in its resolution of 24 November 196J., it has not changed its previous position against unilateral military assistance to the Congo. Of particular significance in support of this interpretation, is the fact that the

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   Security Council reaffirmed the ~olicies and ~urposes set out in the ~revious

   resolutions of the General Assembly and Council, including those which contained

   ~rovisions against the im~ortation of arms by the Government of the Re~ublic of the Congo.

   7. This latter consideration must be given weight since it would be reasonable to conclude that the Security Council, in reaffirming the ~revious

   resolutions, is maintaining the same ~osition in res~ect of arms that it had

   ~reviously taken, and that the intervening events which have occurred have not altered this stand. Should members of the Security Council desire a change in this ~osition, the a~propriate means would be by a new decision of the Security

   Council.

   8. If...