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

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

1. QUESTION WHETHER UNITED NATIONS ORGANS AND SPECIALIZED AGENCIES MAY PRODUCE AND DISPLAY THEIR OWN FLAGS — UNITED NATIONS

   FLAG CODE — US E BY UNITED NATIONS BODIES OF DISTINCTIVE EMBLEMS ON DOCUMENTS AND PUBLICATIONS — ADMINISTRATIVE INSTRUCTION ST / AI/189/ADD.21—POLICY CONSIDERATIONS AGAINST THE ADOPTION OF SEPARATE FLAGS

   Memorandum to the Legal Counsel, United Nations University

1. This refers to your facsimile of 5 March 1992 requesting our views as to whether the United Nations University may produce and display its own flag which will be flown together with the United Nations flag.

2. We note from the attachments to your facsimile that this matter was the subject of previous consultations between our offices, dating back to 1976. In that regard, we note that there was agreement on the fact that article 4, paragraph 2, of the United Nations Flag Code' precludes the use of a flag by a United Nations body, in place of the United Nations flag. The question, however, of whether a United Nations body, including the University, may be authorized to adopt its own flag to be flown together with the United Nations flag was not re-solved at that time. It was observed, however, that a proliferation of flags for different United Nations bodies could create confusion in the public mind as to the identity of the body concerned.

3. The use by United Nations bodies of distinctive emblems on documents and publications has been specifically recognized in administrative instruction ST/AI/189/Add.21 of 15 January 1979. Such use, however, is strictly regulated by part II of the instruction as follows:

   "Such bodies may also use distinctive emblems of their own, subject to the following considerations:

   "(a) On official documents, which must bear the United Nations emblem, the distinctive emblem of the United Nations body may be used in conjunction with the United Nations emblem, provided that the latter is given greater typographical prominence;

   (b) On non-official documents, the distinctive emblem may be used alone; it should not be combined with the United Nations emblem.

4. On the other hand, the adoption for public display by United Nations organs and specialized agencies of their own distinctive flags, besides the United Nations flag, is not foreseen in the United Nations Flag Code and Regu-410

   lations nor has it been sanctioned in any other regulation or instruction. In-deed, when the issue of the adoption by the World Health Organization of a separate flag was raised in I960, the policy considerations against the adoption by specialized agencies of their own flags were set forth in a memorandum by the Secretary-General of 14 March 1960. This opinion provides in relevant parts:

   ".. . 5. The adoption by each specialized agency at this juncture of its own flag would, in the opinion of the Secretary-General, destroy the value of the United Nations flag as the symbol of the whole United Nations family. The proliferation of flags, furthermore, would give rise to confusion in the public mind. There are other practical inconveniences. The display of all flags together would raise the question of precedence; Governments and civil organizations might be discouraged from flying or otherwise displaying the flags on special occasions or for demonstration of support, since the multiplicity of flags would in itself constitute a problem. It may happen that flags of some agencies would be flown while others are not and this could contribute to ill-feeling among the agencies .. .

   "7. .. . He [the Secretary-General] is inclined to the view that, in present circumstances, the interests of the United Nations family of organizations is better served by symbols of unity than by manifestations of the individuality of each of them ... " (emphasis added)

5. In our view, the policy considerations against the adoption of separate flags by specialized agencies arc even more valid with respect to subsidiary organs of the United Nations, which are not separate legal entities. Furthermore, there is no record in our files that the adoption for public display of a distinctive flag by a United Nations organ has ever been authorized or cleared by the Office of Legal Affairs.

6. In the circumstances, while we would not go so far as to say that the applicable regulations and rules prohibit the use by the United Nations University of a separate flag, we would (for the policy reasons set out above) advise against it. In our view it is very desirable for subsidiary organs of the United Nations to affirm their identity with the United Nations by the use solely of the United Nations flag.

   13 March 1992

2. USE OF THE UNITED NATIONS FLAG ON VESSELS—PRECEDENTS INVOLVING THE DISPLAY OF THE UNITED NATIONS FLAG IN THE FRAMEWORK OF

   PEACEKEEPING OPERATIONS — SPECIAL CASES INVOLVING VESSELS FLYING THE UNITED NATIONS FLAG

   Internal memorandum

1. Please refer to the letter from an official of a Member State dated 26 October 1992, requesting information, inter alia, on guidelines for the use of the United Nations flag on vessels.

2. We have researched the subject matter in our files, and the results are set out below.

   1. DISPLAY OF THE UNITED NATIONS FLAG IN THE FRAMEWORK OF

   PEACEKEEPING OPERATIONS

   (i) Vessels of the United Nations Emergency Force

3. Following the establishment of the United Nations Emergency Force (UNEF) in Egypt, vessels were chartered by the United Nations itself or made available to it by participating and other Governments for the transportation of troops and material by sea. Vessels made available to the United Nations flew either the United Nations flag alone2 or displayed both their national flag and the United Nations flag.3 Either one or the other of the above-mentioned practices was observed by vessels chartered by the United Nations itself.

4. Under the authority of the Secretary-General, the United Nations concluded an agreement with the Government of Egypt, by means of exchange of letters dated 8 February 1957, concerning the status of UNEF in Egypt and which, inter alia, provided for the display of the United Nations flag on vessels assigned to or owned by the force while within Egyptian territory.4

5. As the UNEF obtained title to a Landing Craft, Mechanized (LCM) of

   26 tons dead weight and a cargo capacity of 30 tons, which was expected, if required, to sail over the high seas, it was decided that, in such case, the vessel should fly the United Nations flag. This raised the question of jurisdiction for crimes committed on the LCM on the high seas.

6. The Secretariat of the United Nations, in a report on the use of the United Nations flag on vessels prepared for the information of the Second Committee of the 1958 United Nations Conference on the Law of the Sea5 stated the understanding at that time that the situation was unlikely to create any problems, since the crew would be composed exclusively of members of the Force, who are subject to the jurisdiction of their national States according to the Regulations of the Force.6 The Secretariat referred also to the exchange of notes between the Secretary-General and the States participating in UNEF, by which the former was given assurance that the States would exercise their jurisdiction with respect to any crime committed by members of their national respective contingents.7

   (ii) Vessels of the United Nations Suez Canal Clearance Operation

7. At the end of 1956 and early in 1957, vessels of at least nine nationalities were assembled together in a salvage fleet under the United Nations Suez Canal Operation (UNSCO). The majority of those vessels had been chartered by the United Nations from private firms, but some were made available to it by the United Kingdom of Great Britain and Northern Ireland or France.

8. As in the case of UNEF, it was necessary to identify the vessels as part of a United Nations project, thus indicating that they were entitled to the protection of the Organization. Therefore, the vessels flew the United Nations flag, although most of them continued to fly their national flags as well. Provisions for the display of the flag of the United Nations can be found either in the agreement between the United Nations and the Government of Egypt regarding the clearance of the Suez Canal, entered into by the parties by means of ex-change of letters dated 8 January 1957," or in the contract with the private consortium that provided the vessels to the United Nations.0

9. These two early operations (i.e., (i) and (ii) above) established the general principles for the use of the United Nations flag by vessels during peacekeeping operations. The operations undertaken thereafter observed the practice of including provisions for the right of the forces to fly the United Nations flag

   on vessels contributed to the peacekeeping operations in the agreement signed with the host country (for instance, United Nations Operation in the Congo (ONUC), United Nations Transitional Assistance Group (UNTAG)). Even though, in exceptional situations, the United Nations flag was flown alone by some vessels, when journeys of short length and duration were involved, this has always been considered an exception and, whenever possible, the United Nations flag is flown alongside the flag of the vessel's country of registration and, in some cases, together with the courtesy flag. There is no precedent of the United Nations authorizing a vessel to fly the United Nations flag alone in the territorial waters of a State without its consent.

   2. SPECIAL CASES INVOLVING VESSELS FLYING THE UNITED NATIONS FLAG

   (¡) The fishing vesseb of the Korean Reconstruction Agency

10. In 19S4, as a contribution to the reconstruction of the fishing industry of the Republic of Korea, the United Nations Korean...