Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

SUMMARY

A. Legal opinions of the Secretariat of the United Nations 1. Privileges and immunities (a) Note to the Permanent Representative of [State] concerning the non-reimbursement of certain amounts of Value-Added Tax paid by the United Nations Development Programme (UNDP) (b) Note to [Under-Secretary-General of the Department of Political Affairs] concerning [United Nations Mission] sharing lists of national staff with [State] 2. Procedural and institutional issues (a) Note to the Assistant Secretary-General of the Office of Legal Affairs, concerning a claim by International Criminal Tribunal for Rwanda (ICTR) Defence Counsel for payment of fees for legal services rendered (b) Interoffice memorandum to the Assistant Secretary-General for Political Affairs, concerning a request for declassification of documentation (c) Interoffice memorandum to the Under-Secretary-General, Special Adviser on Africa, High Representative, and the Secretary-General of the Fourth United Nations Conference on the Least Developed Countries concerning the Credentials of the delegation representing [State] at the Fourth United Nations Conference on Least Developed Countries (d) Interoffice memorandum to the... (see full summary)

 
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SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS*

A. Legal opinions of the Secretariat of the United Nations

(Issued or prepared by the Office of Legal Affairs)

1. Privileges and immunities

(a) Note to the Permanent Representative of [State] concerning the non-reimbursement of certain amounts of Value-Added Tax paid by the United Nations Development Programme (UNDP)

Value-Added Taxes deemed to be indirect taxes within meaning of Section 8 of the Convention on the Privileges and Immunities of the United Nations, 1946**—

Principle of remission or return—UNDP entitled to reimbursement of VAT on services and rent related to its premises as both payments are significant and recurrent

The Legal Counsel of the United Nations presents her compliments to the Permanent Representative of [State] to the United Nations and has the honour to refer to the exchanges between the Resident Representative a.i. of the United Nations Development Programme (UNDP) in [State] (hereinafter – the “Resident Representative”) and the Legal Advisor of the Ministry of Foreign Affairs of [State] (hereinafter – the “Legal Advisor”) on the issue of non-reimbursement of certain amounts of Value-added Tax (hereinafter – “VAT”) paid by UNDP. The Legal Counsel understands that the Resident Representative conveyed the letter to the Legal Advisor on [date] seeking his assistance in defining a clear returning tax mechanism and requesting him most urgently to facilitate the reimbursement of VAT on services and rent of the new premises of UNDP. The Legal Advisor informed the Office of UNDP by the Note Verbale of [date] that a new policy had been adopted to limit specific terms of VAT reimbursement due to several requests from international organizations to reimburse expenses not directly related to their mandated activities. It was also mentioned that laws and regulations of [State] clearly specify when the organization in question has a right to reimburse VAT. (Copies of the letter and Note Verbale are attached hereby.)***

* This chapter contains legal opinions and other similar legal memoranda and documents. ** United Nations, Treaty Series, vol. 1, p. 15 and vol. 90, p. 327 (corrigendum to vol. 1).

*** Not reproduced herein.

The Legal Counsel would like to clarify the legal position of the United Nations in this regard.

The status of UNDP as a part of the United Nations is regulated by the Convention on the Privileges and Immunities of the United Nations, 1946 (hereinafter – “the Convention”), acceded to by [State] on [date], without relevant reservation about the tax provisions contained in the Convention, as well as by the 1961 Agreement concerning Assistance from the Special Fund (hereinafter – “the Agreement”).

In United Nations practice, value-added taxes are deemed to be indirect taxes within the meaning of section 8 of the Convention. While section 8 does not provide for an explicit exemption from such taxes, it does provide that “when the United Nations is making important purchases for official use of property on which such duties and taxes have been charged or are chargeable, Members will, whenever possible, make appropriate administrative arrangements for the remission or return of the amount of duty or tax”.

The principle of remission or return of the amount of duty or tax which has been charged or is chargeable on important purchases of goods and services by the Organization, its funds and programmes has become a regular element in the customary practice of the States Parties to the Convention. The question whether particular purchases are “important” within the meaning of section 8 of the Convention has consistently been determined by reference either to purchases made on a recurring basis, or which involve considerable quantities of goods, commodities or materials.

Accordingly, UNDP is entitled to the reimbursement of VAT on the services and rent related to its premises, since these payments are both significant and recurrent in nature. There can be no doubt as to the relevance of these payments to the mandated activities of UNDP in [State]. The same applies to any VAT paid by UNDP on other important purchases of goods and services in connection with its operations in the country.

The Legal Counsel reiterates that the United Nations attaches special importance to the principle of remission or return as reflected in section 8 of the Convention because it is designed to protect the assets of the Organization from such taxes, which incidence would be specifically heavy, and would constitute an undue burden on it and to equalize the procurement costs of the Organization throughout the world and the consequent charges upon Member States.

Under section 34 of the Convention, the Government of [State] has an obligation to be “in a position under its own law to give effect to the terms of this Convention.” Moreover, any interpretation of the provisions of the Convention on the Privileges and Immunities of the United Nations must be carried out within the spirit of the underlying principles of the Charter of the United Nations, and in particular Article 105 thereof, which provides that the Organization shall enjoy such privileges and immunities as are necessary for the fulfilment of its purposes. Measures which might, inter alia, increase the financial or other burdens of the Organization have to be viewed as being inconsistent with this provision.

The Legal Counsel also notes that the aforementioned provisions of the Convention should in the case of UNDP be interpreted with due regard to the Agreement, and in particular its article VIII (4), which provides that “[t]he Government shall take any measures which may be necessary to exempt the Special Fund. . . . from regulations or other legal provisions which may interfere with operations under this Agreement”.

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In light of the above the Legal Counsel kindly requests the Permanent Representative of [State] to the United Nations to urge the competent national authorities to reimburse UNDP with respect to its payment of VAT in [State] and to set forth a clear mechanism for the return of such taxes in respect of future important purchases.

[ . . . ]

15 February 2011

(b) Note to [Under-Secretary-General of the Department of Political Affairs] concerning [United Nations Mission] sharing lists of national staff with [State]

Sharing, with a State, lists of staff members who were recruited locally in that State and who are working with a United Nations mission or with offices, programmes or funds of the United Nations that are present in the State— Articles V and VII of the Convention on the Privileges and Immunities of the United Nations, 1946* (“General Convention”)—A State hosting a United Nations presence may request a full list of names of all officials of the United Nations, within the meaning of articles V and VII of the General Convention, who are serving with that field presence—Secretary-General is duty-bound to provide such a list and will determine how often such list is published—Contents of the list includes the names of staff members and other information such that the staff members may be identified by the host country—Secretary-General may impose reasonable conditions on the dissemination and use of such information to avoid endangering the safety or security of the Organization’s personnel or prejudicing the security or proper conduct of its operations

1. The purpose of this Note is to provide you with legal advice, further to your Note dated [ . . . ], regarding the sharing with [State] of lists of staff members who have been recruited locally in [State] and who are working with [United Nations Mission] or with offices, programmes or funds of the United Nations that are present in [State].

Sharing

2. [State] is party to the Convention on the Privileges and Immunities of the Unit-ed Nations, 1946 (the “General Convention”). In accordance with article V, section 17, of the General Convention, the Secretary-General is to specify the categories of officials to which the provisions of that article and article VII apply. Further to that stipulation, the Secretary-General submitted a list of such categories to the General Assembly at its First Session. The General Assembly, by its resolution 76 (I) of 7 December 1946, proceeded to approve the granting of privileges and immunities referred to in articles V and VII “to all members of the staff of the United Nations, with the exception of those recruited locally and assigned to hourly rates”. With the exception of those assigned to hourly rates of pay, staff members who are recruited locally therefore fall within the categories of officials to which the provisions of articles V and VII apply.

3. Article V, section 17, of the General Convention goes on to provide that “[t]he names of the officials included in these categories shall from time to time be made known

* United Nations, Treaty Series, vol 1. p. 15 and vol. 90, p. 327 (corrigendum to vol. 1).

to the Governments of Members”. Further to that stipulation, the Secretary-General transmits each year the List of the Staff of the United Nations Secretariat to the Governments of Member States, through their Permanent Missions in New York. However, that document includes only staff members who hold appointments of one year or more. It therefore does not include the names of many staff members who fall within the categories to which articles V and VII of the General Convention apply, in particular those who are recruited locally by the Organization’s field presences.

4. This being so, a State hosting a United Nations presence may properly request that it be provided from time to time with a full list of the names of all officials of the Unit-ed Nations, within the meaning of articles V and VII of the General Convention, who are serving with that field presence. In view...

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