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

Chapter VI

SELECTED LEGAL OPINIONS OF THE SECRETARIATS 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. IMMUNITY FROM CENSORSHIP OF UNITED NATIONS PUBLIC INFORMATION MATERIAL,

      IRRESPECTIVE OF MODE OF DISTRIBUTION

      Memorandum to the Chief of Centre Services, External Relations Division, Office of Public Information

   1. In your memorandum, you ask whether United Nations films could be submitted to censorship in a specific Member State.

   2. The United Nations is not in a position to submit its films to censorship, since it would be contrary to the Charter and to the Convention on the Privileges and Immunities of the United Nations to which the Member State concerned acceded without reservations. The position of the United Nations in this regard derives, in general terms, from Article 105 of the Charter and, more specifically, from Sections 3, 4 and 7 (c) of the Convention on the Privileges and Immunities of the United Nations. These sections of the Convention provided as follows:

      "Section 3. The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.

      "'Section 4. The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.

      "Section 7. The United Nations ... shall be

      "(c) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of its publications."

   3. As you will appreciate, a demand to censor United Nations films would constitute interference as prohibited in Section 3 of the Convention. As regards Section 4, United Nations films are part of United Nations documentation, and censorship therefore would be in violation of this section which provides for inviolability of documentation "wherever located". United Nations films are also covered by the exemption under Section 7 (c) since they are a part of United Nations publications.

   4. Furthermore, if a government were to demand, in particular, the right to censor United Nations material and if that demand were complied with, the question would arise of a contravention of Article 100 of the Charter, under which a Member State is required

      to refrain from influencing the Secretariat in the discharge of its responsibilities and the latter is prohibited from receiving instructions from any authority external to the Organization.

   5. The concrete case described in your memorandum concerns United Nations films proposed for screening in commercial cinemas in the Member State concerned by the United Nations Information Centre. The question was raised whether a distinction could be drawn between United Nations films intended "for screening in commercial cinemas" and films "shown at public or private group-screenings".

   6. It is our opinion that no such distinction can be made in relation to the Convention on the Privileges and Immunities of the United Nations. The establishment of the Information Centre on the territory of the Member State concerned was, as is always the case, effected in accordance with resolutions of the General Assembly under which both Member States and the Secretary-General are to further the public information work of the United Nations as spelled out in General Assembly resolutions 13 00 of 13 February 1946, 595 (VI) of 4 February 1952 and 1405 (XIV) of 1 December 1959.

   7. In particular, resolution 595 (VI) approved the "Basic Principles Underlying the Public Information Activities of the United Nations" as suggested by Sub-Committee 8 of the Fifth Committee on Public Information.x Under paragraph 8 of the Basic Principles, it is anticipated that the United Nations Department of Public Information should "promote and where necessary participate in the production and distribution of documentary films, film strips, posters and other graphic exhibits on the work of the United Nations". Concerning the mode of distribution, paragraph 10 of the Annex to the Basic Principles states:

      "Free distribution of materials is necessary in the public information activities of the United Nations. The Department should, however, as demands increase and whenever it is desirable and possible, actively encourage the sale of its materials. Where appropriate, it should seek to finance production by means of revenue-producing and self-liquidating projects."

   8. It is thus a long-established principle that distribution of United Nations public information material may take place through commercial channels. It follows that there is no foundation for distinguishing between various forms of distribution as long as the activities are performed within the scope of the above-mentioned General Assembly resolutions.

      7 January 1970

   2. PUBLICATION RIGHTS OF THE UNITED NATIONS IN LECTURES DELIVERED BY PARTICIPANTS IN A UNITED NATIONS SEMINAR

      Memorandum to the Director of the Resources and Transport Division

   1. You have requested our opinion on whether permission should be obtained from the various lecturers who attended a United Nations Seminar for their lectures to be published under a proposed arrangement between the United Nations and a private publishing firm. You indicate that these lecturers include staff members, holders of special service contracts, oil company representatives and national civil servants. We note that you are writing to all of them because they were promised the opportunity to correct manuscripts before publication. We also note that they were given to understand that these lectures would ultimately be published in a United Nations document.

      1 See Official Records of the General Assembly, Sixth Session, Annexes, agenda item 41, document A/C.5/L.172.

   2. From the legal viewpoint, a person who accepted an invitation to lecture does not necessarily thereby give permission to publish, although this permission may be inferred from the surrounding circumstances; nor does he give up his rights to publish himself or to permit others to do so.

   3. Of course, the United Nations has publication rights in the lectures of staff members by virtue of the Staff Rules. So far as the holders of special service contracts are concerned, if their contracts simply referred to lectures, it is not certain whether the United Nations obtained publication rights in such lectures. As for government consultants and representatives of petroleum enterprises, etc., they or their own companies or their Governments may well have whatever property rights exist in the lectures.

   4. We would advise that your letters to the lecturers should inform them of the Organization's intention to arrange for publication by a private publisher and to copyright the publication as a whole in the name of the United Nations. The lecturers' sending in their corrected manuscripts after receiving such a letter would show their agreement to this procedure and indicate the necessary permission.

   5. We would however observe that the United Nations appears to be in no position to assert exclusive right to publish the various lectures, and it is essential to avoid assuming any obligations or making any representation to the publisher in this regard.

      5 March 1969

   3. PRIVILEGES AND IMMUNITIES OF THE MEMBERS OF THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

      Memorandum to the Director, Division of Human Rights

   1. I have received your memorandum inquiring about the status, privileges and immunities of the members of the Committee on the Elimination of Racial Discrimination and members of ad hoc conciliation commissions established under article 12 of the International Convention on the Elimination of All Forms of Racial Discrimination.2 In our opinion, members of the Committee and members of the conciliation commissions are to be considered experts on missions for the United Nations within the meaning of sections 22, 23 and 26 of the Convention on the Privileges and Immunities of the United Nations and section 11 of the Headquarters Agreement with the United States, and are entitled to the privileges, immunities and facilities therein laid down.

   2. The International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 7 March 1966, does not expressly provide for the status of the members of the Committee. Nevertheless the Convention gives indications from which that status can be inferred.

   3. There is a group of organs which, though their establishment is provided for in a treaty, are so closely linked with the United Nations that they are considered organs of the Organization. These include the former Permanent Central Opium Board (established by an Agreement of 1925 3 but made a United Nations organ by General Assembly resolution 54 (I) of 19 November 1946 and the protocol of amendment annexed thereto), the former Drug Supervisory Body (established by a Convention of 19314 but made a United

      2 United Nations, Treaty Series, vol. 660.

      3 League of Nations, Treaty Series, vol. LI, p. 337.

      4 Ibid., vol. CXXXIX, p. 301.

      Nations organ by the same resolution and protocol), the International Bureau for Declarations of Death (established by the Convention on the Declaration of Death of Missing Persons,5 adopted by a United Nations conference on 6 April 1950), the Appeals Committee established under the Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium 6

      (adopted by a United Nations conference on 23 June 1953), and the International Narcotics

      Control Board (established under the Single Convention on Narcotic Drugs,7 adopted by a United Nations conference on 30 March 1961). Other similar organs are provided for...