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

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

1. Legal opinions of the Secretariat of the United Nations

   (Issued or prepared by the Office of Legal Affairs)

   CONTRACTS

   1. IMPLEMENTING INSTRUMENTS—CONVENTION ON LONG-RANGE TRANSBOUNDARY AIR POLLUTION OF 13 NOVEMBER 1979—FINANCIAL REGULATION 10.5 AND FINANCIAL RULES 110.10 TO 110.24

      Memorandum to the Chairman of the Headquarters Committee on Contracts

   1. This is in reference to your memorandum dated 9 July 1998, requesting our advice on what the role of the United Nations Office at Geneva Contracts Committee should be in respect of the "implementing instruments", concluded each year since 1990, between the Economic Commission for Europe (ECE) and, respectively, the Chemical Coordinating Centre, located at the Norwegian Institute for Air Research, Lillestrom; the Meteorological Synthesizing Centre-East, located at the Institute of Applied Geophysics, Moscow; and the Meteorological Synthesizing Centre—West, located at the Norwegian Meteorological Institute, Oslo. We also refer to our subsequent discussion with representatives of ECE, and the additional information provided to us on 24 March 1999 by the Deputy Director, ECE Environment Body for the Convention on Long-range Transboundary Air Pollution.

      Background

   2. The Convention on Long-range Transboundary Air Pollution ("the Convention") was adopted on 13 November 1979, within the framework of ECE, and entered into force on 16 March 1983. Its objectives are, inter alia, "to reinforce active international cooperation to develop appropriate national policies and, by means of exchange of information, consultation, research and monitoring, to coordinate national action for combating air pollution including long-range transboundary air pollution".

   3. The Executive Secretary of ECE carries out secretariat functions for the Executive Body of the Convention (article 11).

   4. A "Cooperative programme for the monitoring and evaluation of the long-range transmission of air pollutants in Europe" ("EMEP") is carried out as part of the activities under the Convention (article 9).

   5. A Protocol to the Convention for "the long-term financing of EMEP" was adopted by the Contracting Parties to the Convention on 28 September 1984 and

      entered into force on 28 January 1988 ("the 1984 Protocol"). The 1984 Protocol specifically refers to the three centres as "the international centres of EMEP", responsible for coordinating the monitoring of long-range air pollution in the area covered by EMEP (article 1, para. 4).

   6. The 1984 Protocol contains the following provisions relating to the financing of EMEP:

      (a) Article 2 provides that "the financing of EMEP shall cover the annual costs of the international centres cooperating within EMEP for the activities appearing in the work programme of the Steering Body of EMEP";

      (Z>) Article 3 provides that the annual costs of the work programme of EMEP shall be covered by the mandatory contributions, supplemented by voluntary contributions subject to approval of the Executive Body. A "General Trust Fund" was established by the Secretary-General of the United Nations to receive such mandatory and voluntary contributions (articles 1 and 3);

      (c) Article 5 provides that "an annual budget for EMEP shall be drawn by the Steering Body of EMEP, and shall be adopted by the Executive Body ... (article 5).1

   7. You enclosed with your memorandum a copy of "Terms of Reference for

      the International Centres of the Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe". It is stated in paragraph 1 of the three samples of implementing instruments which you provided to us that these terms of reference were "approved by the Executive Body of the Convention at its fourth session (EB.AIR/GE.8, annex IV)". The three centres are specifically referred to in paragraph 5 of the terms of reference, which set out in detail the terms and conditions under which they are "to carry out the technical and scientific functions assigned to them in accordance with the present terms of reference" (para. 6).

   8. We understand from the 27 May 1998 memorandum addressed to you by the Chief, Purchase and Transportation Section of UNOG, that ECE has presented to the UNOG Committee each year since 1990, for information, a report concerning the extension of the implementation instruments, and that the UNOG Committee has only taken note of the extension, without taking any decision.

   9. In the 3 April 1998 "Information Note to the Committee on Contracts", prepared by ECE and enclosed with your memorandum, it is stated, inter alia, that "the ECE secretariat has sought and received authority from the Office of the Controller, United Nations Headquarters (memorandum of 14 June 1990), to conclude annual implementing instruments for the EMEP programme on the understanding that all expenditures will be fully covered by assessed contributions from the parties to the EMEP Protocol" (para. 3).

      Analysis and advice

   10. According to United Nations financial rule 110.17, United Nations Head-quarters and local Committees on Contracts are established to render written advice to the United Nations officials designated in the rules (in this case, the head of the UNOG office) on all contracts for the purchase or rental of services, supplies, equipment and other requirements exceeding a specified amount, all proposals for modification or renewal of contracts previously reviewed by the Committees,2 and such other matters as may be referred to them by the designated officials.

   11. The principal function of the Committees on Contracts is to examine and provide advice as to whether proposed contracts are in accordance with the Financial Regulations and Rules of the United Nations and the related procedures, administrative issuances and instructions.

   12. The United Nations financial regulations and rules involved are financial regulation 10.5 and financial rules 110.16 to 110.24, on "Contracts and purchases". Their purpose is, essentially, to ensure that United Nations contracts which exceed amounts specified in the Rules and which do not fall under the exceptions also specified in the Rules are awarded through competitive bidding and are made in writing.

   13. In our view, the implementing instruments concluded with the centres do not fall within the category of the contracts to be reviewed by the Contracts Committee under the Financial Regulations and Rules of the United Nations, for the reasons explained below.

   14. Indeed, we note that each of the implementation instruments enclosed with your memorandum provides, essentially, that the centres will continue to perform their functions for the implementation of the Convention in accordance with the work plan, terms of reference and budget approved by the Executive Body of the Convention, all annexed to the implementation instrument, and will be reimbursed by ECE for such work in accordance with the Financial Regulations and Rules of the United Nations (articles 1 through 4).3 As we understand it, ECE, as the secretariat for the Executive Body of EMEP, has been authorized by the United Nations Controller to sign the implementing instruments.

   15. Under the circumstances, it is our opinion that the implementation instruments do not fall within the purview of the UNOG Contracts Committee.

       26 April 1999

       LIABILITY ISSUES

   2. PILOT PROJECT WITH INTERNSHIPS OF GRADUATE STUDENTS IN PEACEKEEPING OPERATIONS—LEGAL STATUS OF STUDENTS IN THE HOST COUNTRIES UNDER THE STATUS-OF-FORCES AGREEMENTS—LIABILITY OF THE ORGANIZATION

      Memorandum to the Chief of Personnel Management and Support Services, Field Administration and Logistics Division, Department of Peacekeeping Operations

   1. This refers to the above-mentioned pilot project which was transmitted to us by the Internship Coordinator in the Office of Human Resources Management. It also refers to subsequent correspondence between representatives of the Field Administration and Logistics Division and the Office of Legal Affairs and the meeting held some time ago with representatives of a school or university.

   2. We have been informed that some peacekeeping missions have requested the Field Administration and Logistics Division to analyse the possibility of establishing an internship programme in the field. In this context, the school ("the University") has been approached by the Division regarding its possible participation in a pilot project which would be carried out during the summer of 1998. We understand that, pursuant to the project, some three to five graduate students, between the first

      and second year of a Master's programme at the University, would be selected to serve unpaid internships in peacekeeping operations for a period of 10 to 12 weeks. The Division has indicated that the functions to be carried out by the interns would be limited to functions in the areas of political, civil and humanitarian affairs and information/media relations. The Division also indicated that such internships would be useful in preparing interns for possible careers in peacekeeping operations.

   3. You have requested our views on the project and assistance in drafting appropriate arrangements with the University that would set out the respective obligations and rights of the United Nations and the University in respect of the project.

   4. A project of this nature involves many issues that may need to be considered by the appropriate offices, e.g., the political repercussions that might accrue on the Organization vis-à-vis host Governments and international public opinion in general if students are injured or die in peacekeeping operations, or the financial responsibility that the Organization may incur under the project.4 This memorandum will not address such policy and financial matters, but will limit itself to addressing the following legal issues: (a) the legal status of the students in the host...