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The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies - A Commentary edited by Reinisch, August

I Introduction, Introduction to the General Convention

August Reinisch

From: The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary

Edited By: August Reinisch

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 May 2019

Subject(s):
Diplomatic privileges — Since World War II — Immunities — Privilege — UN Charter

(p. 3) Introduction to the General Convention

A.  Introduction

International organizations are relatively new subjects of international law. Neither the so-called administrative unions of the 19th century,1 many of which developed into United Nations (UN) Specialized Agencies after 1945, nor the first international organization of a universal character, the League of Nations, had detailed rules on privileges and immunities.

After World War II, the creation of the UN led to a new thinking in this regard and the Charter’s programmatic statement that the organization shall enjoy ‘such privileges and immunities as are necessary for the fulfilment of its purposes’2 was understood to require specification (see MN 21).

This specification of what privileges and immunities were necessary for the fulfilment of the UN’s purposes was achieved in the Convention on the Privileges and Immunities of the United Nations.3

B.  Historical Background

The first constituent instruments of international organizations rarely made any provision for the immunity of the organizations themselves.4 For instance, the Covenant of the League of Nations merely foresaw ‘diplomatic’ privileges and immunities of the League’s employees and the inviolability of the League’s property.5 Only a subsequent agreement with Switzerland, the so-called 1921 modus vivendi, as supplemented by the 1926 modus vivendi, stipulated that the League itself possessed international personality6 and capacity (p. 4) and that it could not ‘in principle, according to the rules of international law, be sued before the Swiss Courts without its express consent’.7

After World War II, the UN Charter prominently adopted the notion of functional personality8 as well as functional privileges and immunities.9 It was this model that provided a template for other international organizations to enjoy personality as well as privileges and immunities.

Most other international organizations have followed the UN’s functional privileges and immunities paradigm.10 The constituent agreements of the World Health Organization (WHO),11 the Organization of American States,12 the World Trade Organization (WTO),13 or the Council of Europe,14 equally provide for functional privileges and immunities. In addition, member States of international organizations have adopted multilateral privileges and immunities instruments, international organizations have entered into bilateral headquarters or seat agreements and some States have passed specific legislation to ensure that international organizations enjoy immunity from suit (see MN 7ff).15

(p. 5) C.  The Sources of Privileges and Immunities of International Organizations

As opposed to State immunity, which has largely been developed through customary international law and recently underwent a codification exercise in the form of a 2004 UN Convention,16 the immunity of international organizations is mostly based on treaties.17 This started with the informal modus vivendi between the League of Nations and its host Switzerland18 and was continued by provisions in constituent treaties of international organizations, multilateral privileges and immunities treaties as well as bilateral headquarters agreements or the like. Whether customary rules on the immunity of international organizations have developed is a matter of contention.19

While constituent instruments of international organizations usually only provide for ‘functional privileges and immunities’20 in a rather general fashion, these privileges and immunities of international organizations, including their jurisdictional immunity and immunity from enforcement measures are frequently laid down in more detail in separate multilateral privileges and immunities agreements for each organization. The General Convention and the Specialized Agencies Convention,21 dealing with the privileges and immunities of the UN and its Specialized Agencies respectively, are such examples, both proving for an undefined and unrestricted ‘immunity from legal process’. Similar treaties have been concluded with regard to the Council of Europe,22 the Organization of American States (OAS),23 and other organizations.

10  Bilateral ‘headquarters’, ‘host’, or ‘seat agreements’ between international organizations and the country where they have their headquarters or seat, or treaties concluded with non-host States in which international organizations operate regularly contain further provisions on the exact scope of the organizations’ privileges and immunities.27

11  In addition to international sources, domestic law may also provide for privileges and immunities of international organizations. A number of States, in particular those that host international organizations, have adopted special legislation. For instance, already in 1945 the US passed the International Organizations Immunities Act (IOIA).28 Austria adopted the 1977 Law on the Granting of Privileges and Immunities to International Organizations,29 which allows Austria to grant privileges and immunities also to entities not strictly falling into the category of an international organization. Switzerland approved a special Host State Law in 2007.30 Domestic legislation is of particular practical importance in countries following a dualist tradition where treaties cannot be directly (p. 7) invoked before national courts. Thus, the UK adopted the International Organizations Act31 in 1968.32

D.  Drafting History

12  Already at the San Francisco Conference, the drafters of the UN Charter considered that the very brief provision of Art. 105 UN Charter may require specification.33 Art. 105(3) UN Charter clearly reflects this view when it refers to recommendations and conventions ‘with a view to determining the details’ of the UN’s as well as its officials’ and member State representatives’ privileges and immunities.34 A study on privileges and immunities prepared by the Executive Committee of the Preparatory Commission35 was conveyed to the General Assembly which referred it for further consideration to the Legal Committee of the Preparatory Commission (Committee 5).36

13  The Legal Committee started its deliberations in late November 1945 and established a Sub-Committee on Privileges and Immunities.37 It was strongly influenced by a Canadian proposal for a draft resolution concerning the organization’s immunities, facilities, and privileges38 which contained a recommendation that ‘the General Assembly, at its First Session, adopt a convention along the following lines for submission to the Members for ratification’39 as well as a draft text of such a convention40 which clearly indicated that it was meant as a specification of the UN Charter provisions (see MN 21ff).41

14  On 8 December 1945, the Sub-Committee on Privileges and Immunities envisaged the separation of a general privileges and immunities treaty and a headquarters (p. 8) agreement42 and recommended the adoption of a draft convention on privileges and immunities which was largely based on the Canadian proposal.43 After various amendments and proposals the draft convention was discussed and approved by the Legal Committee on 14 and 15 December 1945.44

15  Based on this recommendation, the Preparatory Commission, in its report dated 23 December 1945, recommended that ‘the General Assembly, at its First Session, should make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of Art. 105 of the Charter, or propose conventions to the Members of the United Nations for this purpose’ and transmitted ‘for the consideration of the General Assembly the attached study on privileges and immunities and the attached draft convention on privileges and immunities’.45

16  During the first General Assembly session, the privileges and immunities chapter of the Preparatory Commission report was discussed and referred to the Legal (Sixth) Committee for further discussion. After consideration in a new sub-committee on privileges and immunities, which was specifically requested ‘to recommend which was preferable, a draft convention on privileges and immunities, or a series of recommendations’,46 the sub-committee came out in favour of the adoption of a general convention.47

17  After this recommendation was endorsed by the Sixth Committee,48 the sub-committee drafted the text for this general convention49 on the basis of the draft text for a general convention proposed by the Preparatory Commission of December 1945.50 Though it is noted in the second report of the sub-committee that the draft convention ‘was submitted to a most thorough discussion in the Sub-Committee’51 and a comparison between the December 1945 draft and the draft convention suggested by the sub-committee in February 1946 shows a considerable number of changes, it cannot be established by whom and for what reasons these changes were made since there are no records of the meetings of the sub-committee.

18  The Sixth Committee recommended a final draft of the convention in early February 1946.52

19  The Convention on the Privileges and Immunities of the United Nations was finally approved by the General Assembly on 13 February 194653 and was proposed to (p. 9) every Member of the UN for accession. Pursuant to its Final Article Section 32,54 it entered into force on 17 September 1946 in regard to the UK by the deposit of its instrument of accession.

20  The Convention was registered with the UN Secretary-General on 14 December 1946 as No. 4 and published in the United Nations Treaty Series (UNTS).55 As of 31 December 2014, the General Convention had 160 contracting parties.

E.  The UN Charter Provisions Specified

21  As in the case of most other international organizations, the constituent instrument of the UN, the UN Charter, contains only one very general provision regarding the organization’s privileges and immunities. Art. 105 UN Charter provides that the organization shall enjoy ‘such privileges and immunities as are necessary for the fulfilment of its purposes’.56 This vague general notion of functional privileges and immunities has been specified in the General Convention.57

22  That the General Convention must be regarded as a specification of the UN Charter provisions also follows from the Charter mandate of Art. 105(3) which expressly refers to the Convention’s purpose of ‘determining the details’ of the UN’s as well as its officials’ and member State representatives’ privileges and immunities.58

23  A similar approach has been pursued by other international organizations where the constituent instruments equally contain only general provisions on privileges and immunities and where multilateral general privileges and immunities treaties concluded by the organization’s member States specify the content of these privileges and immunities.

24  The detailed provisions of the General Convention have been viewed as a specification of the general ones contained in Art. 105 UN Charter not only by scholars and in diplomatic practice,59 but also in judicial decisions.60 This may have particular (p. 10) relevance when it comes to interpreting some apparently incongruent provisions like those on the scope of jurisdictional immunity which suggest a functional limitation pursuant to Art. 105 UN Charter and appear as an unlimited, absolute standard in the General Convention.61

25  In addition to the specification of the UN Charter provisions by the General Convention, one must also consider a further layer of specification in the form of bilateral host agreements concluded by the UN with the US,62 Switzerland,63 Austria,64 and other host governments. Such bilateral agreements are often expressly considered to be supplementary to the constituent instruments and to the general immunities and privileges treaty.65 Thus, some of them do not even contain certain core provisions, like the one on immunity from suit.66

26  In addition to specific treaties, domestic legislation also addresses privileges and immunities issues. Most important for the purposes of the UN are US67 and Swiss68 legislation which are often resorted to by domestic courts. Also other States, in particular those with a dualist tradition, have enacted special privileges and immunities legislation.69

F.  The Structure and Scope of the General Convention

27  Art. I (Juridical Personality) of the General Convention first clarifies that the Charter’s concept of functional legal capacity ‘in the territory’ of the organization’s member States70 requires that the UN enjoys ‘juridical’ or legal personality under domestic law. This particularly includes various ‘capacities’ typical for acting as a subject of private law, such as entering into contracts, acquiring property, and instituting legal proceedings.71

28  In Art. II (Property, Funds and Assets) the Convention provides for a wide immunity from legal process of the organization as well as its property and assets.72 Art. II further provides for the inviolability of the UN’s premises73 and archives.74 It also affords guarantees (p. 11) for the UN to hold and transfer funds and currency.75 Finally, this article contains a number of tax and customs exemptions.76

29  Art. III (Facilities in Respect of Communications) contains various provisions aimed at ensuring an efficient operation of official communications.77

30  Art. IV (The Representatives of Members) provides a number of privileges and immunities for member State delegates while exercising their functions;78 similarly, Art. V (Officials)79 and Art. VI (Experts on Missions for the United Nations)80 accord a range of privileges and immunities to staff members and agents of the UN.

31  In Art. VII (United Nations Laissez-Passer) the General Convention regulates the issuance of the organization’s travel documents.81

32  Art. VIII (Settlements of Disputes) obliges the UN to provide for appropriate modes of dispute settlement in cases of immunity and foresees an advisory opinion procedure before the International Court of Justice (ICJ) in case of differences concerning the application and interpretation of the General Convention.82

33  The Convention’s Final Article contains provisions on accession, entry-into-force, treaty-revisions and supplementary agreements.83

G.  The Position of the UN towards the General Convention—Party or Beneficiary?

34  Since the General Convention was concluded between the member States of the UN without the direct participation of the organization, the legal position of the latter and the assessment of its rights and obligations vis-à-vis the member States deriving from the General Convention has remained unclear.84 While the UN itself and many legal scholars seem to lean towards the view that the UN is a party to the General Convention, some have regarded it as only a third party beneficiary.

35  Since the General Convention required approval by the UN General Assembly,85 it was argued that ‘the vote of approval by the General Assembly was equivalent to ratification by the UN. The Contracting Parties are, on the one hand, each Member State and, on the other, the UN as such.’86 Similarly, the UN Office of Legal Affairs stated in a memorandum that ‘since [the] convention was adopted by the General Assembly on 13 February 1946 [it] became binding on the United Nations’.87

(p. 12) 36  The final provisions of the General Convention also seem to support the view that the UN should be regarded a party. Final Article Section 35 provides that the Convention ‘…shall continue in force as between the United Nations and every Member which has deposited an instrument of accession…’.88 Since treaties are normally ‘in force’ between their parties, the UN’s position considering itself a ‘party’ seems to be a logical conclusion.89 One can thus regard the Convention not only as a ‘multilateral inter-State agreement, but also a series of bilateral agreements between the UN and each State party to the Convention, defining rights and obligations for both parties’, thus considering the UN itself to be a party to the General Convention.90

37  The dispute settlement provisions of the General Convention also lead to a similar conclusion. They provide that ‘[i]f a difference arises between the United Nations…and a Member…, a request shall be made for an advisory opinion.…The opinion given by the Court shall be accepted as decisive by the parties.’91 One could indeed infer from this wording that the UN may be one of the ‘parties’ as referred to in Art. VIII Section 30 General Convention.92

38  The UN Treaty Collection regards the official date of entry into force of the General Convention as ‘17 September 1946, in accordance with section 32’.93 This is the date when in response to the Convention’s ‘adoption’ by the UN General Assembly the United Kingdom of Great Britain and Northern Ireland deposited its instrument of accession. Thus, the first two ‘parties’ were obviously the UN and the United Kingdom of Great Britain and Northern Ireland.

39  The fact that the UN Secretary-General registered the General Convention ex officio94 was also taken as an indication that the UN is a party to the Convention.95

40  Others have followed a more cautious approach by regarding the UN a chief beneficiary of the General Convention and not a party.96 This beneficiary approach was argued as a fall-back option by the UN Secretary-General in the Mazilu case97 before the ICJ when he (p. 13) stated that if the UN were not recognized as a party to the General Convention ‘…it is clearly a “third organization” that can derive obligations and rights…’.98 Unfortunately, the ICJ’s advisory opinion did not resolve this issue.

41  Neither did it the Court’s advisory opinion in the Reparations case, where the ICJ merely stated that the General Convention ‘creates rights and duties between each of the signatories and the Organization’.99 It left open, however, whether this was a consequence of the UN’s status as a party or as a beneficiary.

42  In spite of this uncertainty,100 it seems clear that the UN is bound by the provisions of the General Convention.

H.  Conclusion

43  The General Convention has become the central multilateral treaty specifying the privileges and immunities of the UN. It serves as a crucial instrument defining the precise scope of the functionally necessary privileges and immunities accorded to the organization in the UN Charter.(p. 14)

Footnotes:

1  See R Wolfrum, ‘International Administrative Unions’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law Vol. V (OUP 2012) 335–44.

2  Art. 105(1) Charter of the United Nations, San Francisco, 26 June 1945 (UN Charter) (‘The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.’).

3  Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15.

4  The ILO Constitution 1919 did not contain any provision on privileges and immunities. The 1946 amendment, 15 UNTS 35, inserted a provision which provided that ‘[t]he International Labour Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes’.

5  Art. 7(4) and (5) Covenant of the League of Nations, 28 June 1919, 225 CTS 195, only provided for ‘diplomatic immunities’ for League officials ‘engaged on the business of the League’ and that League property was to be ‘inviolable’. Cf. also Art. 19 Statute of the Permanent Court of International Justice, 6 LNTS 379 (‘The members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities.’). See also J L Kunz, ‘Privileges and Immunities of International Organizations’, (1947) 41 American Journal of International Law 828–62; A Miller, ‘The Privileges and Immunities of the United Nations’, (2009) 6 International Organizations Law Review 7–115, at 10ff.

6  The text of the 1921 and the 1926 Swiss modus vivendi for the League of Nations is available in the UN Legislative Series, Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, Vol. II, UN-Doc. ST/LEG/SER.B/11, UN Sales No 61.V.3, at 127–37. See also the Provisional ‘Modus Vivendi’ of 1921 with the Swiss Federal Council, Letter of July 19, 1921, from the Head of the Federal Political Department to the Secretary-General of the League of Nations, as reprinted in M Hill, Immunities and Privileges of International Officials: The Experience of the League of Nations (Carnegie Endowment for International Peace 1947) 121, at 126 (‘Although Article 7 of the Covenant of the League of Nations relates only to the staff and the premises of the League, it should be recognised that, in application, if not of the letter at least of the spirit of the Covenant, the League of Nations may claim to possess international personality and legal capacity and that, consequently, it is entitled to a status analogous to that of a State. It follows that the League of Nations may claim the same independence in respect of Swiss administrative and judicial organs as other members of the international community and thus cannot be sued before the Swiss Courts without its own consent (apart from such exceptions as are recognised in international law, e.g. in regard to suits concerning real property, etc.)’).

7  Para I of the Communications du Conseil Fédéral Suisse concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail, entered into by the League of Nations and the Swiss Government on 18 September 1926, 7 OJLN (1926), Annexe 911a, 1422–24 (‘Le Gouvernement fédéral suisse reconnaît que la Société des Nations, possédant la personnalité international et la capacité juridique, ne peut être, en principe, selon les règles du droit des gens, actionnée devant les tribunaux suisses sans son consentement exprès.’). See also M Hill (n 6), at 138 (‘The Swiss Federal Government recognises that the League of Nations, which possesses international personality and legal capacity, cannot, in principle, according to the rules of international law, be sued before the Swiss Courts without its express consent.’).

8  Art. 104 UN Charter (n 2) (‘The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.’).

9  Art. 105(1) UN Charter (n 2).

10  C W Jenks, International Immunities (Oceana 1961); K Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations (Martinus Nijhoff 1964); P H F Bekker, The Legal Position of Intergovernmental Organizations. A Functional Necessity Analysis of Their Legal Status and Immunities (Martinus Nijhoff 1994); A Reinisch, International Organizations Before National Courts (CUP 2000).

11  Art. 67(a) Constitution of the World Health Organization, New York, 22 July 1946, 14 UNTS 185 (‘The Organization shall enjoy in the territory of each Member such privileges and immunities as may be necessary for the fulfilment of its objective and for the exercise of its functions.’).

12  Art. 133 Charter of the Organization of American States, Bogotá, 30 April 1948, 119 UNTS 3 (‘The Organization of American States shall enjoy in the territory of each Member such legal capacity, privileges, and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes.’).

13  Art. VIII(2) Agreement Establishing the WTO, Marrakesh, 15 April 1994, 33 ILM (1994) 13 (‘The WTO shall be accorded by each of its Members such privileges and immunities as are necessary for the exercise of its functions.’).

14  Art. 40(a) Statute of the Council of Europe, 5 May 1949, ETS No. 1 (‘The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions.’).

15  See A Reinisch, ‘Privileges and Immunities’, in J Klabbers and A Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar 2011) 132–55, at 135.

16  United Nations Convention on Jurisdictional Immunities of States and Their Property 2004, UNGA Res 59/38, 2 December 2004 (not yet in force). See also R O’Keefe and C J Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property—A Commentary (OUP 2013).

17  UN Office of Legal Affairs, Note to the Minister of Foreign Affairs of [State] to the United Nations concerning certain labour claims filed against the United Nations Logistics Base in [City] in the Court of [City] by five former individual contractors, 20 November 2012, (2012) UNJYB 459, 461 (‘The Legal Counsel wishes to point out that the concepts of jurisdictional immunities of states and the privileges and immunities of international organizations have a different nature and origin. The jurisdictional immunities of states are a part of customary international law that has evolved through the years and recently was codified in the United Nations Convention on Jurisdictional Immunities of States and their Property, 2004. […] Unlike the case with sovereign states, the privileges and immunities of the United Nations are of a treaty law nature and, as explained above, originated in the United Nations Charter and the General Convention.’).

18  See n 6.

19  See A Reinisch, ‘Transnational Judicial Conversations on the Personality, Privileges, and Immunities of International Organizations: An Introduction’, in A Reinisch (ed), The Privileges and Immunities of International Organizations in Domestic Courts (OUP 2013) 7ff; M Möldner, ‘International Organizations or Institutions, Privileges and Immunities’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012) 47 para 11; M Wood, ‘Do International Organizations Enjoy Immunity Under Customary International Law?’, (2014) 10 International Organizations Law Review 287–318; A Ziegler, ‘Article 105, MN 7’, in B Simma, D E Kahn, G Nolte, and A Paulus (eds), The Charter of the United Nations (3rd edn, OUP 2012) 2162.

20  Art. 105 UN Charter (n 2) with its grant of privileges and immunities ‘necessary for the fulfilment of [the organization’s] purposes’ is a typical example.

21  Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, 33 UNTS 261.

22  General Agreement on Privileges and Immunities of the Council of Europe, 2 September 1949, ETS No. 2, 250 UNTS 14.

23  Agreement on Privileges and Immunities of the OAS, 15 May 1949, OAS Treaty Ser. 22.

24  See A Hammarskjöld, ‘Les immunités des personnes investies de fonctions internationales’, (1936 II) 56 Recueil des Cours 107–211, at 194 (‘réglementation générique est dans l’air et que la tendance dominante y est favorable’); D B Michaels, International Privileges and Immunities: A Case for a Universal Statute (Martinus Nijhoff 1971) 166–71.

25  Between 1962 and 1992 the International Law Commission considered the question of relations between States and intergovernmental international organizations. In 1966 the Commission divided the subject into two parts, the first of which led to the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, opened for signature 14 March 1975, UN-Doc. A/Conf.67/16 (not yet in force); the second part led to a series of draft articles addressing privileges and immunities of international organizations, their officials and experts on mission. Díaz-González, Special Rapporteur, Fourth report on relations between States and international organizations (second part of the topic), 24 April 1989, UN-Doc. A/CN.4/424. In 1992, the work on this topic was abandoned. See also P Bekker, ‘The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: An Assessment’, (1993) 6 Leiden Journal of International Law 3–16; J G Lammers, ‘The Immunity of International Organizations’, (2014) 10 International Organizations Law Review 276–86.

26  See most recently International Law Commission, Annual Report (2006), UN-Doc. A/61/10, at 455 (‘the opportunity for the ILC to reconsider whether it should undertake a study of the jurisdictional immunity of international organizations’.); P Webb, ‘Should the 2004 UN State Immunity Convention Serve as a Model/Starting Point for a Future UN Convention on the Immunity of International Organizations?’, (2014) 10 International Organizations Law Review 319–31.

27  See eg Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, 26 June 1947, entered into force 21 November 1947, 11 UNTS 11; Interim Arrangement on Privileges and Immunities of the United Nations Concluded between the Secretary-General of the United Nations and the Swiss Federal Council, 11 June 1946, 1 UNTS 163; Agreement between the Government of the Italian Republic and the Food and Agriculture Organization of the United Nations regarding the Headquarters of the Food and Agriculture Organization of the United Nations, 31 October 1950, 1409 UNTS 521; Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287.

28  International Organizations Immunities Act (IOIA) 1945, 59 Stat. 669, 22 U.S.C.A. Sections 288ff.

29  Law on the Granting of Privileges and Immunities to International Organizations, Federal Act of 14 December 1977, Austrian Federal Law Gazette No. 677/1977, (1977) UNJYB 3, was mainly adopted in order to permit the granting of privileges and immunities to the CSCE/OSCE which was not generally recognized as an international organization.

30  Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State (Host State Act), 22 June 2007, SR 192.12 and the accompanying regulation of 7 December 2007, SR 192.121, (2008) UNJYB 3.

31  International Organizations Act 1968 (IOA), 26 July 1968, [1968] c 48 [UK], Halsbury’s Statutes of England, 4th edn, Vol. 10, title Constitutional Law (Pt 5). See also C Wickremasinghe, ‘The Immunity of International Organizations in the United Kingdom’, (2014) 10 International Organizations Law Review 434–45.

32  Section 1(I) subsection (2)(b) IOA (‘Her Majesty may by Order in Council…provide that the organization shall, to such extent as may be specified in the order, have the privileges and immunities set out in Part I of Schedule I to this Act.’).

33  See United Nations Conference on International Organization, San Francisco 25 April–26 June 1945, when the Rapporteur of Technical Committee 2 (Legal Problems) of Commission IV (Judicial Organization) pointed out that ‘the possibility is not excluded of a general convention to be submitted to all Members’ on the privileges and immunities of the future United Nations Organization (restricted doc. 933 (English) IV/2/42 (2) 2).

34  Art. 105(3) UN Charter (n 2) (‘The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.’).

35  Report by the Executive Committee to the Preparatory Commission of the United Nations, PC/EX/113/Rev.1, 12 November 1945, Part III, Chapter V, Section 5, 69ff and Appendix.

36  Memorandum by the Executive Secretary on the organization of the work of the Second Session of the Preparatory Commission, 22 November 1945, PC/EX/138/Rev.1, 17, instructed the Legal Committee to ‘consider and report to the Preparatory Commission on Chapter V of the Report of the Executive Committee and on any proposals or amendments submitted by Delegations on matters falling within the scope of Chapter V’.

37  Summary records of the third meeting of Committee 5, 29 November 1945, PC/LEG/10 and PC/LEG/16.

38  Committee 5: Delegation of Canada, Draft Resolution concerning the Question of Immunities, Facilities and Privileges to the Organization, to Representatives of the Members and to the Officials, Preparatory Commission of the United Nations, 30 November 1945, PC/LEG/17, 2.

39  ibid.

40  ibid. (‘Tentative and Provisional Draft of Convention on the Immunities, Facilities and Privileges of the United Nations of Representatives of its Members and of its Officials.’).

41  ibid., at 3, Art. 2—Purposes (‘The purposes of this convention are to determine the details of the application of paragraphs 1 and 2 of Article 105 of the Charter, to ensure the efficient performance of the functions entrusted to the Organization and to avoid the imposition of financial burdens on the funds contributed to the Organization by the Members.’).

42  Report of the Sub-Committee to Committee 5, 8 December 1945, PC/LEG/33, 1 (‘(a) A general arrangement to which all members of the Organization will be parties, and (b) A special arrangement as between the Organization and the host state.’).

43  Report of the Sub-Committee to Committee 5, 8 December 1945, PC/LEG/34; 1 and 3.

44  Summary records of the ninth and tenth meetings of Committee 5, PC/LEG/40 and PC/LEG/41.

45  Report of the Preparatory Commission of the United Nations, 23 December 1945, PC/20, p. 60, Chapter VII, Sec. 1, paras 2 and 3.

46  UN, Official Records of the first part of the first session of the General Assembly—Sixth Committee, Legal Questions, Summary Record of Meetings, 11 January–8 February 1946, at 15. Cf. Art. 105(3) UN Charter, leaving it to the General Assembly to make recommendations or to propose conventions on privileges and immunities of the UN.

47  UN-Doc. A/C.6/17, 26 January 1946.

48  UN, Official Records of the first part of the first session of the General Assembly—Sixth Committee, Legal Questions, Summary Record of Meetings, 11 January–8 February 1946, at 16 (28 January 1946).

49  The draft general convention was included in the second report of the sub-committee, UN-Doc. A/C.6/31, 5 February 1946.

50  Report of the Sub-Committee to Committee 5, 8 December 1945, PC/LEG/34; 1 and 3.

51  ibid. at 2.

52  Sixth Committee, Draft Recommendation and Convention on the Privileges and Immunities of the United Nations, 5 February 1946, UN-Doc. A/C.6/28.

53  UNGA Res 22 (I) A.

54  Final Article Section 32 General Convention (‘Accession shall be effected by deposit of an instrument with the Secretary-General of the United Nations and the convention shall come into force as regards each Member on the date of deposit of each instrument of accession.’). See also C Binder, Commentary on Final Article Section 32 General Convention, MN 27 for further reference.

55  1 UNTS 15.

56  Art. 105(1) UN Charter (‘The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.’).

57  See UN Office of Legal Affairs, Note on the legal status of the United Nations in the United States of America, 7 February 2006, (2006) UNJYB 441, 442 (‘The Charter of the United Nations does not specify the exact scope and extent of the legal capacities and privileges and immunities of the Organization. In this regard, it only sets out the major principles that are premised on a functional necessity approach. Thus, according to Articles 104 and 105 of the Charter, the Organization enjoys in the territory of each of its Members such legal capacity, and such privileges and immunities as may be necessary for the exercise of its functions and for the fulfilment of its purposes. These principles have been developed in the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly in 1946 (hereinafter “the General Convention”.’). See also A Miller (n 5), at 7, 16.

58  Art. 105(3) UN Charter (n 34).

59  UN Office of Legal Affairs, Opinion prepared at the request of the Committee on Relations with the Host Country, (1983) UNJYB 222 (the ‘detailed application’ of the principle contained in Art. 105 of the Charter ‘was effected inter alia through the [General Convention]’.) See also P H F Bekker (n 10), at 129ff (regarding the multilateral instruments as ‘implementation of the brief and general provisions of the constituent instrument of the organization’.).

60  See recently Delama Georges et al, v United Nations, United Nations Stabilization Mission in Haiti (MINUSTAH), United Nations Secretary-General Ban Ki-moon, and former Under-Secretary-General for MINUSTAH, Edmond Mulet, 13-CV-7146 (JPO) (S.D.N.Y. 2015) 4 (‘The CPIUN, which was adopted less than a year after the UN Charter, defines the UN’s privileges and immunities in more detail.’).

61  See A Reinisch, Commentary on Art. II Section 2 General Convention.

62  UN–US Headquarters Agreement (n 27).

63  Interim Arrangement on Privileges and Immunities of the United Nations Concluded between the Secretary-General of the United Nations and the Swiss Federal Council, 1 UNTS 163.

64  Agreement between the Republic of Austria and United Nations regarding the Seat of the United Nations in Vienna, 13 April 1967, 2023 UNTS 253.

65  See third preambular paragraph of the Agreement between the United Nations and the Republic of Austria regarding the Headquarters of the United Nations Industrial Development Organization (UNIDO), 600 UNTS 94 (‘Considering that it is desirable to conclude an agreement, complementary to the Convention on the Privileges and Immunities of the United Nations, to regulate questions not envisaged in that Convention arising as a result of the establishment of the headquarters of [UNIDO] at Vienna;…(emphasis added).’). See also Section 26 US–UN Headquarters Agreement 1947 (n 27) (‘The provisions of this agreement shall be complementary to the provisions of the General Convention.’).

66  UN–US Headquarters Agreement 1947 (n 27).

67  US IOIA 1945 (n 28).

68  Swiss Host State Act 2007 (n 30).

69  See eg UK IOA 1968 (n 31); Canada Privileges and Immunities (United Nations) Act, RSC 1952, c 219, originally enacted by SC 1947 c 69, and promulgated by an order under that Act permitting accession: PC 3946, 1 October 1947.

70  Art. 104 UN Charter.

71  See N Blokker, Commentary on Art. I Section 1 General Convention.

72  See A Reinisch, Commentary on Art. II Section 2 General Convention.

73  See L Bartholomeusz, Commentary on Art. II Section 3 General Convention.

74  See G L Burci, Commentary on Art. II Section 4 General Convention.

75  See E Devoldere and M Schoiswohl, Commentary on Art. II Sections 5–6 General Convention.

76  See R S J Martha, Commentary on Art. II Sections 7–8 General Convention.

77  See P Bachmayer, Commentary on Art. III Sections 9–10 General Convention.

78  See U Kriebaum, Commentary on Art. IV Sections 11–16 General Convention.

79  See R Bandyopadhyay and T Iwata, Commentary on Art. V Sections 17–21 General Convention.

80  See R Bandyopadhyay and T Iwata, Commentary on Art. VI Sections 22–23 General Convention.

81  See M Schoiswohl, Commentary on Art. VII Sections 24–28 General Convention.

82  See K Schmalenbach, Commentary on Art. VIII Sections 29–30 General Convention.

83  See C Binder, Commentary on Final Article Sections 31–36 General Convention.

84  See also M Möldner, ‘International Organizations or Institutions, Privileges and Immunities’, in R Wolfrum (n 19), at 47, para 6 (‘Whether or not the UN itself is a party to the CPIUN is a matter of controversy.’).

85  Art. 105(3) UN Charter (n 2).

86  J Kunz, ‘Privileges and Immunities of International Organizations’, (1947) 41 American Journal of International Law 828, 848.

87  Memorandum by Division of Immunities and Registration of Treaties of 20 December 1948 (‘Waiver of Immunity—Actual and Implied’) (on file with the UN Office of Legal Affairs) (‘Waiver of immunity of the United Nations would be governed insofar as the organization itself is concerned by the Convention on Privileges and Immunities of the United Nations since this convention was adopted by the General Assembly on 13 February 1946 and became binding on the United Nations.’).

88  Final Article Section 35 General Convention.

89  P H F Bekker (n 10), at 130ff, note 572.

90  P Szasz, ‘International Organizations, Privileges and Immunities’, in R Bernhardt (ed), Encyclopedia of Public International Law Vol. II (2nd edn, North-Holland, 1995) 1327.

91  Art. VII Section 30 General Convention. See K Schmalenbach, Commentary on Art. VIII Section 30 General Convention for further reference.

92  Statement made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967, reprinted in (1967) UNJYB 311, 312.

93  See <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-1&chapter=3&lang=en#1> last accessed 6 June 2014. See also General Convention (n 3), at 16 note 1 (‘Came into force [see page 263 of this volume] on 17 September 1946 as regards United Kingdom of Great Britain and Northern Ireland by the deposit of the instrument of accession.’). See Final Article Section 32 General Convention (‘Accession shall be affected by deposit of an instrument with the Secretary-General of the United Nations and the convention shall come into force as regards each Member on the date of deposit of each instrument of accession.’).

94  See General Convention (n 3) (‘This Convention was registered ex officio by the Secretariat of the United Nations on 14 December 1946.’).

95  P Sands and P Klein, Bowett’s Law of International Institutions (6th edn, Sweet & Maxwell 2009) 344.

96  R Zacklin, ‘Diplomatic Relations: Status, Privileges and Immunities’, in R-J Dupuy (ed), Manuel sur les organisations internationales, A Handbook on International Organizations (Martinus Nijhoff 1988) 179, 183.

97  Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, (1989) ICJ Rep 177.

98  Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Statement of the Secretary-General), ICJ Pleadings (1992), Oral Arguments, Documents, 172, at 185 (‘…it is clearly a ‘third organization’ that can derive obligations and rights under that instrument pursuant to the principles codified in Articles 35 and 36 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. The acceptance or assent of the organization to such obligations and rights is evidently that given by the General Assembly in adopting the Convention and proposing it to Member States, an action taken pursuant to the explicit authorization of paragraph 3 of the Article 105 of the Charter.’).

99  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, (1949) ICJ Rep 174, at 179.

100  See on this issue also C Binder, Commentary on Final Article Sections 31–36 General Convention, MN 3ff and 80ff.