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 (issued or prepared by the Office of Legal Affairs) CLAIMS, COMPENSATION, CONTRACTS AND LIABILITY ISSUES 1. Claim for rental payment for the use of a compound by United Nations Mission in Somalia (UNOSOM II)—General principles concerning provision of premises in peacekeeping operations—the case of UNOSOM II (26 January 1994) 403 2. Contractual arrangements established for the purchase of the goods and services requested by a Government—UNICEF Financial Regulations and Rules—Requirement that payments be made in advance of purchase and delivery of the goods and services obtained through UNICEF by Governments (28 February 1994) 407 3. Contracts awarded to licensed operators acting as brokers in aircraft chartering—Standard United Nations aircraft charter agreement—Short-term charters (17 May 1994) 408 4. Disclosure of contracts with firms to a non-official body of the United Nations Environment Programme (23 August 1994) 411 5. Administrative instructions—Policies of the United Nations in regard to transportation on United Nations-chartered aircraft—Issues of liability of the Organization and necessary insurance coverage for injuries, death or loss sustained during travel on United Nations-chartered aircraft (22 September 1994) 412 6. Compensation for service-incurred death, injury or illness of consultants employed by the United Nations under a special service agreement (7 October 1994) 416 7. Conclusion of a contract—General terms and conditions applicable to contracts for goods and services—Liability for United Nations-authorized purchase order (8 November 1994) 418 8. Compensation for alleged damage to a United Nations Development Programme office—Termination of a lease based on “compelling circumstances” (17 November 1994) 420 COMMERCIAL ISSUES 9. United Nations policy concerning gifts and commercial credits—Financial regulation 7.2 to 7.4 and financial rule 107.5 to 107.7—Use of the United Nations name—General Assembly resolution 92(I) of 7 December 1946 (7 July 1994) 422 COMMUNICATIONS 10. Legality of radio broadcasting by the United Nations towards a State from international waters or from a third State—General Assembly resolution 13(I) of 13 February 1946—Article 39 of the International Telecommunication Convention—Article XVI of the Agreement between the United Nations and the International Telecommunication Union—Article 109 of the 1982 United Nations Convention on the Law of the Sea—ITU Radio Regulations (3 February 1994) 423 11. Question of possible private ownership and operation of the United Nations telecommunications network—1989 International Telecommunication Union resolution No. 50 (15 July 1994) 426 12. Radio broadcast systems for... (see full summary)

 
FREE EXCERPT

SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF

THE UNITED NATIONS AND RELATED INTERGOVERN-MENTAL ORGANIZATIONS

  1. Legal opinions of the Secretariat of the United Nations

    (Issued or prepared by the Office of Legal Affairs)

    CLAIMS, COMPENSATION, CONTRACTS AND LIABILITY ISSUES

    1. CLAIM FOR RENTAL PAYMENT FOR THE USE OF A COMPOUND BY UNITED

      NATIONS MISSION IN SOMALIA (UNOSOM II) — GENERAL PRINCIPLES CONCERNING PROVISION OF PREMISES IN PEACEKEEPING OPERATIONS — THE CASE OF UNOSOM II

      Memorandum to the Under-Secretary-General for Peacekeeping Operations

    2. This is with reference to your memorandum of 15 September 1993 forwarding for our advice copies of correspondence between the owner of a compound (Mr. A) and various United Nations officials concerning the occupancy by UNOSOM of his property and known as KM7 compound in Mogadishu.

      (a) The facts

    3. We understand that the compound consists of a plot of land of 10 thousand square meters containing both high-rise and singly built houses, a recreation club and a swimming pool. From June 1964 to May 1992 the compound was leased to the United States State Department. According to Mr. A, in December 1992 he was “evicted” from the compound, which was first occupied by United States Marine Forces participating in the Unified Task Force (UNITAF) and subsequently by troops participating in UNOSOM.

    4. Mr. A claims compensation in the amount corresponding to the rental value of the compound since December 1992 on the basis of the rent paid by the United States State Department “before the war”: US$ 15,000 per month.

    5. In his letter of 21 July 1993 addressed to Mr. A, the Legal Advisor of UNOSOM II rejected the claim on the basis that UNOSOM was not responsible for the original seizure of the compound by UNITAF, that UNOSOM’s subsequent possession of the compound was legitimized by military reasons since the position of the building presented a security risk for the Force and that the compound “has no value, it is not rentable”.

      (b) Comments

      (i) Mandate and operational arrangements of UNOSOM

    6. UNOSOM (I) was established by Security Council in its resolution 751 (1992) of 24 April 1992 in support of the Secretary-General’s continuing mission in Somalia to, inter alia, facilitate the cessation of hostilities and the maintenance of a cease fire throughout the country and to provide urgent humanitarian assistance.

    7. By its resolution 794 (1992) of 2 December 1992, the Security Council, acting under Chapter VII of the Charter of the United Nations, authorized the Secretary-General as well as the Member States, which had offered to establish an operation (subsequently called UNITAF) to create a secure environment for humanitarian relief operations in Somalia, to use all necessary means to that effect. Those Member States were further authorized by the Council “to use all necessary means” in order to fulfill the mandate of the operation (see para. 7-10 of the resolution).

    8. Unlike UNOSOM (I),1 UNITAF was not established “under the authority” of the Security Council. UNITAF’s operations were conducted by the participating Member States, in “coordination” with the United Nations.2

      8 The expanded mandate of UNOSOM (II), following the completion of UNITAF, was approved by Security Council resolution 814 (1993) of 26 March 1993 in order to create a secure environment for humanitarian relief operations in Somalia. By endorsing the recommendations contained in paragraphs 56 to 88 of the report of the Secretary-General of 3 March 1993 (S/25354), the Security Council, acting under Chapter VII, entrusted UNOSOM, inter alia, with the following military tasks established in paragraph 57 of that report:

      “… (b) To prevent any resumption of violence and, if necessary, take appropriate action against any faction that violates or threatens to violate the cessation of hostilities;

      “… (f) To protect, as required, the personnel, installations and equipment of United Nations and its agencies, the International Committee of the Red Cross as well as NGOs and to take such forceful action as may be required to neutralize armed elements that attack, or threaten to attack, such facilities and personnel, pending the establishment of a new Somali police force which can assume this responsibility.”

    9. The Secretary-General was also requested, in paragraph 14 of Security Council resolution 814 (1993), to direct the Force Commander of UNOSOM II, through his Special Representative, to “assume responsibility for the consolidation, expansion and maintenance of a secure environment throughout Somalia.”

    10. Thus, UNOSOM II has a comprehensive and far-reaching mandate allowing it to take whatever action is necessary for attaining the operation’s objectives.

      (ii) General principals concerning provision of premises in peacekeeping operations and the special case of UNOSOM II

    11. The provisions of past status of forces agreements and the practice allowed in past and present peacekeeping operations have established the principle that it is the host Government’s responsibility to provide a peacekeeping force, at no cost to the United Nations, with all the facilities to fulfill the functions of the force. This principle is reflected in the first sentence of paragraph 16 of the model status of forces agreements.3

    12. The corollary of the Government’s obligation to provide such facilities is its responsibility for dealing with, and settling any claims made by landowners in respect of the temporary appropriation of land or premises by reason of military necessity, or in respect of property damage resulting from operational activities of troops participating in a United Nations peacekeeping operation.

    13. In the absence of a status of forces agreement and of the host Government that could undertake the responsibility of providing UNOSOM II with the necessary facilities, the Organization itself had to assume this responsibility and to make appropriations in the UNOSOM II budget for rental and alteration/renovation of premises needed for operational purposes.

      (iii) Analysis of Mr. A’s claims

    14. According to Mr. A, the compound was originally occupied by United States Marine Forces participating in UNITAF in December 1992. As indicated in paragraph 7 above, the operations of UNITAF were not conducted under United Nations command and thus UNOSOM is not responsible therefor. Any claim which Mr. A might have with regard to UNITAF occupation of the compound should be addressed to the appropriate United States authorities. Therefore, we need not analyze the legitimacy of, or the need for, occupation of the compound by UNITAF. As far as the United Nations is concerned, Mr. A’s claim has to be considered exclusively within the framework of the mandate of UNOSOM II and with regard to the period of occupancy of the compound by UNOSOM II troops.

    15. We understand from the UNOSOM II Legal Advisor’s letter of 21 July 1993 to Mr. A that the location of the compound “constitutes a serious security risk”, since it “prominently overlooks the Forces Headquarters” and UNOSOM II had to move its forces into the compound to “protect and secure the [UNOSOM] headquarters”.

    16. Subject to the authority of the Secretary-General, the responsibility for decisions on strategic aspects of an operation rests with the Force Commander. If it is established under the latter’s authority that occupation of the compound by hostile factions would have exposed UNOSOM II to serious threat so that effective protection to “the personnel, installations and equipments of United Nations and its agencies, ICRC as well as NGOs” (see para. 8(f) above) could not have been assured without UNOSOM II taking physical possession of the compound, the occupation thereof may be considered as an act of military necessity to ensure the achievement of the objectives laid down in Security Council resolution 814 (1993).

    17. From this perspective, the occupation of the compound may be considered legal. It should be noted in this regard that, judging from numerous letters of the claimant, he himself does not question the legality of the occupation and limits his claims to receiving compensation.

      (iv) Question of compensation

    18. It should therefore be considered whether Mr. A is entitled to any compensation for loss of use of, or damage to, the compound and, in the affirmative case, whether the Organization should undertake to pay such compensation.

    19. As mentioned above, in traditional peacekeeping operations the host Government assumes responsibility for dealing with the settling of claims of property owners for compensation regarding property occupied for reasons of, or damage by, military necessity. The present case is unique as no status of force agreement was entered into between the Organization and Somalia there is no national administrative authority that might undertake the responsibilities usually assumed by host Governments. In the light of these circumstances, general principles of international law might be referred to provide guidance in dealing with the claim in question.

    20. The rights to compensation of owners of private property temporarily appropriated for reasons of military necessity or damage in the course of armed conflict are generally recognized under international law.

    21. The Hague Convention Respecting the Laws and Customs of War on Land of 18 October 1907 (“The Hague Convention IV”)4 embodies the principle that private property should be respected in times of armed conflict. Article LII of section III (Military Authority over Hostile Territory) of the Convention’s Annex, entitled “Regulations Respecting the Laws and Customs of War on Land”, requires that contributions in kind made upon requisition “shall, as far as possible, be paid for in ready money”.

    22. Although peacekeeping operations differ from armed conflicts to which the Hague Convention IV applies, the past practice of peacekeeping operations indicates that the Organization has endeavored to ensure that the owners of...

To continue reading

FREE SIGN UP