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

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 or prepared by the Office of Legal Affairs)

1. QUESTION OF THE EXTENT TO WHICH UNRWA CAN BE EXPECTED TO CONFORM TO THE LAW OF A HOST STATE IN THE IMPLEMENTATION OF ITS EDUCATIONAL

   PROGRAMME

   Opinion of the General Counsel of UNRWA

1. The question was raised as to what is the position of the Agency in respect to the education law of a host State and its relation to the Agency's educational programme.

2. The Agency is a subsidiary organ of the General Assembly, with a mandate established by that body, and must at all times act as a United Nations agency. A paramount principle, common to all United Nations operations—whether they be educational, economic, peacekeeping or political in character—is that they must remain under the control of the United Nations as such, representing the totality of the Member States, and must not fall under the control of any one Member State. The "exclusiveness" of United Nations control is thus a safeguard for the general membership, and international officials serving these various United Nations operations are accordingly under the express injunction of Article 100, paragraph 1, of the United Nations Charter:

   "In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization".

   Lt may be noted that there is a corresponding obligation on all Member States in paragraph 2 of Article 100:

   "Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities".

3. In the result, therefore, no United Nations organ ever falls under the jurisdiction of a Member State in the sense of being literally bound by the provisions of its law or subject to its "sovereignty". The relationship is one of co-operation and co-ordination, not of subordination. With regard to the Agency, the General Assembly has, by resolution 212 (III) of 19 November 1948, placed responsibility for the planning and implementation of the Agency's programmes on the Commissioner-General, as appointed by the Secretary-General, and his responsibility is "to the General Assembly", as resolution 302 (TV) of

   8 December 1949 makes expressly clear; it is to this organ that the Commissioner-General must report. Successive resolutions have emphasized that the Agency's relationship with

   host governments is one of consultation and co-ordination, never subordination: resolutions 513 (VI) of 26 January 1952, 818 (IX) of 4 December 1954, 916 (X) of 3 December 1955, 1018 (XI) of 28 February 1957, 1191 (XII) of 12 December 1957, 1315 (XIII) of 12 December 1958, 1456 (XIV) of 9 December 1959, 2154 (XXI) of 17 November 1966 make this relationship abundantly clear.

4. Particularly with the Agency, the need for closest co-operation and co-ordination with a host Government is vital to the successful execution of its mandate. It is a matter of record that, for many years, the Agency's educational programmes have been designed to harmonize with those of the host State, and, to this end, it has been customary for the Agency to conform to the established pattern of textbooks, curricula, examination standards and so forth. This degree of co-ordination has been achieved not because of any duty imposed on the Agency by local law but because co-ordination is a necessary condition for the success of the educational activities of the Agency and because co-operation with host Governments has been required by the General Assembly. However, it is clear that there are limits beyond which, as a United Nations organ, the Agency cannot go. These are, essentially:

   (/') Where a host State, whether by legislation or otherwise, requires from the Agency action which is ultra vires its mandate or incompatible with its mandate; such action would be tantamount to defiance of the authority of the General Assembly;

   (/;) Where a host State, whether by legislation or otherwise, requires action which is beyond the financial capacity of the Agency: such action would be irresponsible and subject to criticism by the United Nations external auditors as well as by the General Assembly;

   (///) Where a host State, whether by legislation or otherwise, assumes power to dictate or control the activities of United Nations officials, or the operations entrusted to them; this would constitute a breach of Article 100 and, in effect, the operation could not continue to be a United Nations operation at that point.

5. It may be observed that these limitations in no way affect the general conformity of United Nations officials, and the activities and operations with which they are charged, with the law of host States. Compliance with criminal law, with road traffic regulations, with legislation on matters of health and with legal rules and procedures affecting transactions carried on within the State is the normal rule and raises no problems. Any special privileges and immunities are based upon the Charter and the Convention on the Privileges and Immunities of the United Nations of 1946, two treaties accepted freely by the host States. Thus, a United Nations body does not claim the right to ignore local law. It claims only that it is not subject to any law which infringes upon its status as a United Nations organ, either by deviating from the Charter and the 1946 Convention or by requiring action incompatible with the three basic limitations set out above.

6. Let it be thought that this position is in some way incompatible with the sovereignty of the host State, it must be emphasised that the special position of a United Nations organ is based upon the Charter—a treaty accepted by all Member States—so that it is a reflection of this very sovereignty and, indeed, designed to protect the interest which each and every Member State has in any United Nations operation, wherever it may be. Moreover, in final analysis, it is certainly true that a General Assembly subsidiary organ can continue to operate in a State's territory only with its consent. The host State is free to determine that, whether because of a belief that its sovereignty is prejudiced or for any other reason, the operations on its territory must cease.

   30 March 1968

2. EXEMPTION OF THE UNITED NATIONS FROM CHARGES FOR MUNICIPAL SERVICES— SECTION 7 (A) OF THE CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS

   Memorandum to the Assistant to the Chief of the Purchase and Transportation Service, Office of General Services

   This refers to your memorandum on the lease of office space by the United Nations Development Programme on the territory of a Member State. I understand that the landlord has accepted all the standard clauses for UNDP lease agreement, including the one on arbitration procedures.

   It is noted, however, that under the fifth clause of the proposed lease, the obligation to pay for waste removal and "any other service" falls on the tenant, i.e. the UNDP. It would appear that waste removal and the other "services" are in fact services rendered by the municipality concerned. The Office of Legal Affairs has always held the view that where sen ices furnished by municipalities are charged not according to the value of the services but according to property evaluation or other independent criteria, the payment thus made constitutes a tax. Under Section 7 (a) of the Convention on the privileges and immunities of the United Nations, the organization and its subsidiary organs such as the UNDP are exempted from such taxes. In our opinion, the Resident Representative of UNDP should seek exemption from these charges if they are billed according to real estate evaluation and not according to the service actually rendered. No need appears to make a reservation in the lease agreement concerning this point.

   Section 7 (a) of the Convention on the Privileges and Immunities of the United Nations reads as follows:

   "The United Nations, its assets, income and other property shall be:

   (a) exempt from all direct taxes; it is understood, however, that the United Nations will not claim exemption from taxes which are, in fact, no more than charges for public utility services".

   Municipal services such as street lighting, street cleaning, removal of waste, and general services are taxes distinct from the "public utility charges" which are not subject to exemption and, therefore, the United Nations is entitled to the exemption provided for in Section 7 (a), quoted above, of the Convention. The Office of Legal Affairs of the United Nations has dealt with this subject as follows:

   "Water and electricity are the types par excellence of public utility services, precisely those envisaged by the General Assembly in adopting the Convention. As you know, a public utility is a corporation, very often, privately owned, though sometimes owned or controlled by a municipality or other government unit, but in either case impressed with a public interest, which causes a close statutory supervision of the production and sale of the service or commodity in question. This supervision is ordinarily carried out by Public Utilities Commissions; I am sure it is not necessary to refer to the fact that the public utilities supervised by such governmental bodies in any of a large number of countries are principally gas and electricity, water and transport. For example, Quemner, Dictionnaire juridique gives the following entry:

   Public utilities, public services corporation—Services publics concedes (transports, gaz, dlectricite, etc).'

   I think it is clear that the...