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)

   1. THE RIGHT OF SELF-DETERMINATION AS A BASIC PRINCIPLE OF INTERNATIONAL LAW AND THE

      CHARTER OF THE UNITED NATIONS AS ITS BASIC SOURCE — DEVELOPMENT OF THE PRINCIPLE IN OTHER INTERNATIONAL INSTRUMENTS, PARTICULARLY AS TO ITS DIFFERENT FORMS OF IMPLEMENTATION — INDEPENDENT STATEHOOD AS THE MOST COMMON FORM OF IMPLEMENTATION CHOSEN — THE FREE EXERCISE OF THE RIGHT OF SELF-DETERMINATION REQUIRES THAT THIS ALTERNATIVE BE AVAILABLE

      Memorandum to the Secretary-General

   1. The basic authoritative source for the principle of self-determination as it presently governs international relations is the Charter of the United Nations. Article 1 of the Charter lists as one of the purposes of the Organization the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. The principle is further referred to in Article 55 and Articles 73 and 76 further deal with some aspects of the principle. Apart from these very general provisions, however, the Charter does not elaborate on the elements that give concrete application to the principle.

   2. It has been the role of the United Nations therefore not only to ensure respect for the right of self-determination as a basic principle of international law, but also to develop the subsidiary principles that govern lawful implementation of the right of self-determination. In this connexion, attention had to be given, among other aspects, to the question as to what legitimate forms implementation of self-determination can take.

   3. The General Assembly has addressed this task at two different levels: 1° at the general theoretical level by adopting authoritative more detailed restatements of the principle and 2° at the concrete level by dealing with actual individual cases of self-determination.

   4. The major formal restatements of the principle of self-determination are contained in resolution 1514 (XV) of 1960 (Declaration on the Granting of Independence to Colonial Countries and Peoples), the two International Covenants on Human Rights of 1966 (Article 1) and resolution 2625 (XXV) of 1970 (Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations).

   5. The Declaration of 1960 and the Covenants on International Human Rights do not elaborate on the form that self-determination can take. However, at the same session when the Declaration on the Granting of Independence was adopted, the General Assembly dealt with certain aspects of the principle of self-determination in a more detailed way in a separate resolution, namely resolution 1541 (XV) concerning "Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter". Principle VI of this resolution specifically deals with the form of self-determination by stating that:

      "A Non-Self-Governing Territory can be said to have reached a full measure of selfgovernment by:

      "(«) Emergence as a sovereign independent State;

      "(6) Free association with an independent State; or

      (c) Integration with an independent State.

      Principles VII, VIII and IX elaborate on the conditions under which free association or integration are acceptable. The Principles of this resolution have been a basic guideline for United Nations activities in the field of decolonization.

   6. The most elaborate authoritative general statement on the principle of self-determination is contained in the Declaration on Principles of International Law concerning Friendly Relations and this text is also explicit on the question of form of self-determination. According to this Declaration

      "The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that People."

   7. At the concrete level of individual implementation, the history of the United Nations shows an impressive record of cases in which the Organization has been involved in the process of self-determination. This practice reveals that statehood has been resorted to as the most common and thus normal form of attainment of self-determination. Thus, on a total of 74 cases of selfdetermination that are on record for the period between the entry into force of the Charter and the beginning of 1979, 70 cases relate to territories that achieved self-determination by obtaining independent statehood. Two cases involved the integration with an independent State (West Irian, integrated with Indonesia, and Ifni, integrated with Morocco) and two resulted in free association with an independent State (Mariana Islands, which became a free associated State of the United States, and Niue, which opted for self-government in free association with New Zealand).

   8. In conclusion, it can be said that the practice of the United Nations, both at the level of elaboration of general principles and at the level of concrete implementation of those principles, has established that statehood is a legitimate mode of implementation of the right of self-determination. Statehood has even emerged as the most common and thus normal form of selfdetermination and the General Assembly cannot be expected to accept any other form unless the peoples choosing a status different from independent statehood do so notwithstanding that independent statehood is a clearly available alternative.

      29 August 1980

   2. QUESTION WHETHER THE UNITED NATIONS IS LIABLE FOR THE PAYMENT OF RENT FOR PREMISES

      OCCUPIED BY A UNITED NATIONS PEACE-KEEPING FORCE STATIONED IN A MEMBER STATE WITH THE LATTER'S CONSENT — RESPONSIBILITY OF THE HOST STATE, UNDER EXISTING AGREEMENTS AND CURRENT PRACTICE, TO PROVIDE A PEACE-KEEPING FORCE WITH THE NECESSARY PREMISES

      Memorandum to the Assistant Director for Peace-Keeping Matters and

      Special Assignments, Office of Financial Services

   1. I refer to your memorandum of 14 and 23 January 1980 by which you sent us copies of letters from the Deputy Permanent Representative of [name of a Member State] relating to claims from certain local commercial entities for rent allegedly owed by the United Nations for the occupation by United Nations peace-keeping forces of buildings owned by these companies in the Member State concerned. You requested our opinion as to whether the United Nations is liable for the payment of rent for the occupation of these buildings.

   2. This matter raises the general issue of a host State's obligations with regard to the provision of accommodation for a United Nations peace-keeping force which it accepts in its territory. The provisions of past status of forces agreements and the practice followed with regard to past and present peace-keeping operations have established the principle that it is the host State's responsibility to provide a peace-keeping force with the premises necessary for the accommodation and

      the fulfilment of the functions of a force, and that such accommodation is provided at no cost to the United Nations.

   3. In the present instance, it is relevant to recall that an understanding was reached between the Government concerned and the United Nations according to which, pending the conclusion of a new status of the force agreement, the provisions and principles of an earlier agreement would be applicable. Under that agreement the Government of the host State undertook to provide, in agreement with the Commander, such areas for headquarters, camps, or other premises as might be necessary for the accommodation and the fulfilment of the functions of the force.

   4. From the information provided in your memoranda of 14 and 23 January and in the attachments, it would appear that the premises to which the claims relate fall in the category of premises envisaged by the provision referred to above. The payment of rent for those premises is therefore an issue between the Government of the host State and the local companies owning the buildings, and is not the responsibility of the United Nations.

   5. This conclusion based on the general principles governing United Nations peace-keeping operations is of course subject to any divergent specific arrangements which may have been made with regard to any of the premises at the time of their occupation. The information which we dispose of thus far does not indicate the existence of such special arrangements and our communications with the Government concerned as well as the reports of the Secretary-General to the Security Council show that the United Nations assumed that the general principle of host country's responsibility was applicable. The question of the liability of the United Nations with regard to specific claims may have to be reviewed, however, in the light of additional information that may be brought to our attention.

      15 February 1980

   3. LIABILITY OF THE UNITED NATIONS IN CASE OF ACCIDENTS INVOLVING BRITISH-OWNED AND

      OPERATED HELICOPTERS PUT AT THE DISPOSAL OF THE UNITED NATIONS FORCE IN CYPRUS

      (UNFICYP) — QUESTION WHETHER THE UNITED NATIONS OR THE GOVERNMENT OF THE CONTINGENT TO WHICH THE HELICOPTERS BELONG WOULD ULTIMATELY HAVE TO BEAR THE COST OF POSSIBLE COMPENSATION — SPECIFIC CASE OF PASSENGERS FLYING THE HELICOPTERS UNDER INSTRUCTIONS OR WITH THE AUTHORIZATION OF UNFICY P AUTHORITIES OTHER THAN THE BRITISH CONTINGENT AUTHORITIES — ADVISABILITY OF OBTAINING INSURANCE FOR SUCH RISKS AS THE UNITED KINGDOM IS NOT CLEARLY PREPARED TO ASSUME

      Memorandum to the Officer-in-Charge, Field Operations Division, Office of General Services

   1. You requested our advice as to whether British-owned helicopters used by...