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

CHAPTER VI

SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF THE

UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANISATONS

1. Legal opinions of the Secretariat of the United Nations (Issued or prepared by the Office of Legal Affairs)

   PRIVILEGES AND IMMUNITIES

   1. LICENSING FEES LEVIED AGAINST THE UNITED NATIONS FOR THE ALLOCATION OF RADIO FREQUENCIES—SECTIONS 7 AND 34 OF THE CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS

      Memorandum to the Director and Deputy to the Assistant Secretary-General for Support Services, Office of Conference and Support Services

      With reference to your memorandum of 14 December 1994, our comments are as follows:

   1. Pursuant to the Agreement between the United Nations and [the State] regarding the Headquarters of the United Nations Environment Programme,1 the Convention on the Privileges and Immunities of the United Nations2 adopted by the General Assembly of the United Nations on 13 February 1946, to which [State] has been a party since 1965, is ipso facto applicable to the United Nations Environmental Programme.

   2. Pursuant to article II, section 4(b), of that Agreement, “the Government shall, upon request, grant to UNEP for official purposes appropriate radio and other telecommunication facilities in conformity with technical arrangements to be made with the International Telecommunication Union” (emphasis added).

   3. Under the International Telecommunications Convention,3 there is no requirement to pay for registration or use of radio frequencies. In addition to the aforementioned Convention, section 4(b) above provides that [State] shall grant to UNEP appropriate radio and other telecommunications facilities for official purposes. The allocation of frequencies would seem a precondition or a integral part of such facilities and must be deemed to be covered by the grant referred to in this section. Thus, the term “grant” shall be understood as providing such radio frequencies without charge.

   4. Furthermore, it could be argued that the licensing fee in question constitutes a direct tax from which the United Nations is exempt under article VIII, section 17(a), of the UNEP Headquarters Agreement and under article II, section 7(a) of the Convention on the Privileges Immunities of the United Nations. Section 17(a) of the Agreement provides that “UNEP, its assets, income and other property, shall be exempt from all direct taxes…” Section 7(a) of the Convention provides that “United Nations, its assets, income and other property shall be 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 service”.

   5. Although the fee at issue might be perceived to be in payment for a service rendered by the host Government, the service being the allocation of the radio spectrum and frequencies and its protection from interference by other radio operators, the United Nations has consistently maintained a narrow definition of the expression “charges for public utility services” used in section 7(a). In particular, “charges for public utility services” must relate to concrete services that can be specifically identified, described, itemized and calculated according to some predetermined unit. As far as the fee in question is concerned, it is difficult to clearly identify and itemize the service being rendered by allocating radio-electric spectrum and frequencies. Moreover, the charge which is levied bears no relation to the amount of services rendered. Therefore, it appears that a fee for the use of radio-electric spectrum and frequencies does not constitute a charge for public utility services under section 7(a) of the Convention, but rather a direct tax from which the United Nations is exempt.

   6. In addition to being advised of the foregoing, the Government of [the State] should be informed that, under section 34 of the Convention on the Privileges and Immunities of the United Nations, it has a legal obligation to “be in a position under its own law to give effect to the terms of this Convention” and that 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 Charger 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.

      9 January 1995

   2. ENTITLEMENT TO DIPLOMATIC PRIVILEGES AND IMMUNITIES OF A MEMBER OF A PERMANENT MISSION WHO DOES NOT HAVE THE NATIONALITY OF THE SENDING OR RECEIVING STATE—ARTICLES 7 AND 8 OF THE 1961 VIENNA

      CONVENTION ON DIPLOMATIC RELATIONS

      Memorandum to the Chief of Protocol, Executive Office of the Secretary-General

   1. This is with reference to your memorandum of 13 December 1994, seeking legal advice in connection with the refusal by the United States Mission to the United Nations to extend diplomatic privileges and immunities to an official (hereinafter “Mr. X”) who joined the permanent mission of a State of which he is not a national as Special Adviser. We have the following views on the matter.

   2. In its letter of 2 December 1994, the United States Mission advises that it is “unable to accede to the request to extend privileges and immunities to Mr. X” since “he is neither a (State of permanent mission) national nor does he carry a (State of permanent Mission) passport”. As such, according to the letter, “he does not meet all the Department of State’s criteria for the extension of diplomatic privileges and immunities”. The letter also stated that “[s]should the Permanent Mission of [name of State] elect to engage Mr. X as a full-time, salaried non-diplomatic staff member, the United States Mission will request a change in his visa status”. In our view, the above-mentioned observations touch upon, as a matter of principle, at least the following three main and interrelated issues: the right of Member States to freely appoint the members of the staff of their missions; nationality of the members of a permanent mission; and, finally, the entitlement to privileges and immunities.

      The right of Member States to freely appoint the members of the staff of their permanent missions to the United Nations

   3. Neither the 1946 Convention on the Privileges and Immunities of the United Nations (the General Convention) nor the 1947 United Nations/United States of America Headquarters Agreement4 contains any explicit restrictions on the choice by the Member States of non-nationals as representatives to the United Nations. The rules and norms of diplomatic law in this area were codified and developed in the 1961 Vienna Convention at Diplomatic Relations (the 1961 Vienna Convention).5 Article 7 of the 1961 Vienna Convention provides that, “[s]ubject to the provisions of articles 5, 8, 11, the sending State may freely appoint the members of the staff of the mission” (emphasis added). According to the definition in paragraph (c) of article 1 of the Convention, the expression “members of the staff of the mission” includes “the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission”. It should also be noted that the same principle of freedom of appointment of mission members has been reflected in article 9 of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character6 (not yet in force).

      Nationality of the members of a permanent mission

   4. Neither the General Convention nor the Headquarters Agreement provides the representatives of Member States may only be of the nationality of the sending States. Article 8 of the 1961 Vienna Convention states that “[m]embers of the diplomatic staff of the mission should in principle be of the nationality of the sending State” (emphasis added). Thus, the Vienna Convention does not exclude the possibility that certain members of a mission, including the diplomatic staff, could be of a nationality different from that of the sending State. The 1975 Vienna Convention reflects the same approach as contained in the 1961 Vienna Convention. Paragraph 1 of article 73 of the former Convention stipulates:

      “The head of mission and members of the diplomatic staff of the mission, the head of delegation, other delegates and members of the diplomatic staff of the delegation, the head of the observer delegation, other observer delegates and members of the diplomatic staff of the observer delegation should in principle be of the nationality of the sending State”.

   5. However, in article 8, paragraph 2 of the 1961 Vienna Convention foresees that the consent of the receiving State is necessary when the sending State wishes to appoint a member of the diplomatic staff from among persons who have the nationality of the receiving State. According to article 8, paragraph 3 “[t]he receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State” (emphasis added).

   6. The 1975 Vienna Convention, which codifies various aspects of representation of States their relations with international organizations, does not reflect the principle in accordance with which the consent of the host State is required when a national of a third State is being appointed by a State member of the organization as a member of the diplomatic staff of its permanent mission. Such right is explicitly reserved in the 1975 Vienna Convention only with regard to appointments of persons having the nationality of the host State. Paragraphs 2 and 3 of article 73 dealing with this subject matter provide as follows:

      “2. The head of mission and members of the diplomatic staff of...