United nations experts on mission and their privileges and immunities

International Organizations Law Review

Volumn 4, Issue 1, 2007, Pages 11-56

  Miller, Anthony J ^a  

^a Attorney at Law

Author keywords

Accountability; Experts on mission; Privileges and immunities; Waiver

Indexed keywords

EID: 34548611749     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237307X217366     Document Type: Article

References (228)

1. Formerly Principal Legal Officer, United Nations Office of Legal Affairs (OLA). I would like to record the immense debt of gratitude that I owe to Mr. David Hutchinson, Senior Legal Officer, OLA, for his continued advice and encouragement in the long process of writing and re-writing this paper. He made many valuable comments and ever constructive criticisms on numerous prior drafts. Any errors that remain are due to my own stubbornness in not following his advice. The opinions expressed herein do not necessarily reflect the views of OLA, where I worked for 29 years, or the views of the UNFCCC Secretariat for which entity I have undertaken a number of consultancies since retirement from the United Nations.
2. 1 U.N.T. S. 15, [hereinafter the General Convention].
3. The General Convention provides also for privileges and immunities of representatives of Member States but such persons are not agents of the Organization. If representatives perform missions at the request of the UN or the Secretary-General, they are accorded the status of experts on mission. See text at note 79, infra.
4. Staff Regulation 1.2(c) of the UN Staff Regulations provides that staff "are subject to the authority of the Secretary-General and to assignment by him or her to any of the activities or offices of the United Nations", Staff Regulations of the United Nations and Staff Rules 100.1 to 112.8, UN Doc. ST/SGB/2002/1, 1 January 2002; amended ST/SGB/2003/1, 1 January 2003; ST/SGB/2004/1, 1 January 2004; ST/SGB/2005/1, 1 January 2005; and ST/SGB/2006/1, 1 January 2006.
5. The various arrangements by which persons, other than staff, may be retained by the Secretary-General are set out in the Secretary-General's bulletin, Policies for obtaining the services of individuals on behalf of the Organization, UN Doc. ST/SGB/177, 19 November 1982.
6. First Report of the Sub-Committee on Privileges and Immunities, Sixth Committee First Session Records, UN Doc. A/C.6/17, 26 January 1946, para. 5.
7. In a statement to the Sixth Committee on 6 December 1967, the Legal Counsel, after citing Section 35, pointed out that the UN has a real interest in ensuring that privileges and immunities are properly accorded and that a difference with a Member State may be the subject of an advisory opinion under Section 30 and continued, "It is thus clear that the United Nations may be one of the "parties" as that term is used in Section 30." UN Doc. A/C.6/385, 6 December 1967, at 4. In Reparations for Injuries Suffered in the Service of the United Nations, the ICJ cited Section 35 to show that the Organization had rights and obligations vis-à-vis the General Convention. See [1949] ICJ Rep. 174, at 179.
8. See Art. 2(g), Vienna Convention on the Law of Treaties (1969), 1155 U.N.T.S. 331; Art. 2(g), Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol. II, UN Doc. Sales No. E.94.V5.
9. See text at note 64, infra.
10. General Assembly Resolution 22(1) D, 13 February 1946.
11. Ibid.
12. General Assembly Resolution 179 (II), 21 November 1947.
13. See Report of the Preparatory Commission of the United Nations, (London, 1946), [hereinafter Preparatory Commission], at 61-62 (para. 5). The Preparatory Commission, as an example, noted
14. the difference in immunities accorded by the Articles of Agreement of the International Monetary Fund and the Articles of Agreement of the International Bank for Reconstruction and Development. The former was immune from suit in national courts while the latter could be sued in courts where it had offices. See ibid., at 62 (para. 5), 64 (para. 7).
15. Section 1(i), Convention on the Privileges and Immunities of the Specialized Agencies, 33 U.N.T.S. 262.
16. See C. Wilfred Jenks, International Immunities (1960), 141 (noting that "One of the difficulties of the question of immunities for experts is that the expert committees and missions of the international organizations differ so widely in their nature, composition, status, functional and practical needs").
17. For a convenient compilation of the texts of these provisions to 1974, see Convention on the Privileges and Immunities of the Specialized Agencies, Final Texts and Revised Texts of the Annexes (UN publication, 1974). See also Chapter III.2 Privileges and immunities of the Specialized Agencies in Multilateral Treaties Deposited with the Secretary-General, available at 〈untreaty.un.org/sample/EnglishInternetBible/partI/chapterIII/chapterIII. asp〉.
18. The agenda for the 2nd meeting of Committee IV/2, which was assigned legal matters, simply raised the question whether the Charter should provide for diplomatic privileges and immunities for representatives and officials. See Documents of the United Nations Conference on International Organization San Francisco, 1945, vol. 13 [hereinafter U.N.C.I.O. vol. 13], 574 (Doc. 153, IV/2/3, May 9, 1945). The Committee later decided that the privileges and immunities of officials should be those needed for the independent exercise of their functions. See U.N.C.I.O. vol. 13, 703 (Doc. 933, IV.2/42, 12 June 1945).
19. Martin Hill, Immunities and Privileges of International Officials (1947), 4-5 [hereinafter Hill], noted that there is little recorded drafting history for Article 7, paragraph 4, of the Covenant, but it was clear to the drafters that officials must be able to perform their functions without interference and must be able to deal with representatives of States on an equal footing and would require "no less dignity and consideration than were enjoyed by ordinary diplomats". For a concise overview of provisions on immunity for international officials prior to the League of Nations,
20. see Cecil J.B. Hurst, "Diplomatic Immunities - Modern Developments", (1929) 10 BRIT. Y. B. I. L. 1, at 6-9.
21. Report of the Rapporteur of Committee IV/2 as Approved by the Committee, U.N.C.I.O. vol. 13, at 703-704 (Doc. 933, IV.2/42 (2), 12 June 1945). The report noted that the text empowered the General Assembly to make a series of recommendations concerning the application of the Article which "could apply only to those Members who, for instance, might have weightier obligations owing to the fact that the Organization or its organs happen to have establishments on their territory. These recommendations may, if this method is found opportune, assume the form of a convention (agreement, modus vivendi, etc ...) proposed by the General Assembly to a Member... On the other hand, the possibility is not excluded of a general convention to be submitted to all the Members." Ibid., at 704.
22. Ibid., at 705. The Report also noted that "the Committee has seen fit to avoid the term "diplomatic" and has preferred to substitute a more appropriate standard, based, for the purposes of the Organization, on the necessity of realizing its purposes and, in the case of the representatives of its members and the officials of the Organization, on providing for the independent exercise of their functions". Ibid., at704. This approach, with its lack of specificity, was early seen as requiring implementing texts. See, e.g., Robert K. Eifler, "Privileges and Immunities of United Nations Delegates and Officials - The International Organizations Immunities Act", (1947-48) 46 MICH. L. REV. 381, at 382.
23. Report Submitted by Subcommittee to Committee IV/2, U.N.C.I.O. vol. 13, 778 at 779, Doc. 412 IV/2/A/2(1), 18 May 1945. The next day a corrigendum corrected the word "agents" to "officials". See U.N.C.I.O. vol. 13, 778, Doc. 412 IV/2/A/2(2), 19 May 1945. See further the text at note 25, infra, which notes that, during the Preparatory Commission of the United Nations, experts traveling for the Organization were mentioned.
24. See also Summary Report of the Second Meeting of Committee IV/2, which refers to "Representatives and members and officials of the United Nations organization and their staffs". U.N.C.I.O. vol. 13, 578, Doc. 228, IV/2/10, 11 May 1945.
25. See Preparatory Commission, supra note 13, at 60 (para. 2).
26. Ibid., at 61-75 (respectively Appendix A and Appendix B to Chapter VII).
27. Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the UN, Advisory Opinion of is December 1989, [1989] ICJ Rep. 177 at 193-194 (para. 46) [hereinafter Mazilu].
28. Preparatory Commission, supra note 13, at 74.
29. Ibid., at 80.
30. Hill, supra note 18, at 11 and 69.
31. Ibid., at 70.
32. The Written Statement Submitted on behalf of the Secretary-General to the ICJ in Mazilu, supra note 24, noted that the Hill study, supra note 18, which described the difficulties encountered by the League because privileges and immunities were confined to officials, was available to the drafters of the General Convention (Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations, Pleadings, Oral Arguments, Documents, (ICJ Sales No. 627)
33. [hereafter Mazilu Pleadings], at 186 (para. 57)).
34. Summary Record of Sixth Meeting Held on Thursday 24 January 1946, at 15, Official Records of the General Assembly, Sixth Committee, First Part of First Session, Summary Records of Meetings 11 January-8 February 1946 [hereinafter Sixth Committee First Session Records].
35. First Report of the Sub-Committee on Privileges and Immunities, UN Doc. A/C.6/17, 26 January 1946, in Sixth Committee First Session Records, supra note 30, at 44-45. The Report, emulating the Report of the Rapporteur of Committee IV/2 at the San Francisco Conference (supra note 19), used the term "general convention" to refer to the proposed Convention on the Privileges and Immunities of the United Nations: "The Sub-Committee agreed, without reservation, to request the Sixth Committee to recommend that the General Assembly should propose to the members of the UN a general convention which would determine the details of the application of... Article 105 of the Charter. This suggestion does not prejudice the separate question of the conclusion of a special Convention with the State on the territory of which the seat of the UN will be located." Ibid, para. 2. The abbreviation "General Convention" is still commonly used in UN circles;
36. it also appears in Article 35 of the General Convention. The First Report of the Sub-Committee was adopted unanimously by the Sixth Committee on 28 January 1946, Sixth Committee First Session Records, supra note 30, at 16.
37. Second Report of the Sub-Committee on Privileges and Immunities, UN Doc. A/C.6/31 of 5 February 1946, in Sixth Committee First Session Records, supra, note 30, at 45-47.
38. Sixth Committee First Session Records, supra, note 30, at 26.
39. Ibid., at 26-28. The draft text is in UN Doc A/43/Rev.1, 13 February 1946.
40. General Assembly Resolution 22 A (I), 13 February 1946.
41. General Assembly Resolution 76 (I), 7 December 1946.
42. Recommendations presented by the Secretary-General, Categories of Officials to which the Provisions of Article V and VII shall apply, UN Doc. A/116, 16 October 1946. The Secretary-General had recommended this text "in the light of the discussions that took place at the Preparatory Commission and the First Part of the First Session of the General Assembly". Ibid., at 1. An Annex listed the categories of hourly workers. An Addendum to the report listed the job classifications of those with privileges and immunities. See UN Doc. A/116/Add.1, 9 November 1946.
43. The largest numbers of officials who are not UN staff members (and thus subject to the authority of the Secretary-General) are now the judges of the international criminal tribunals. For example, Article 30 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former
44. Yugoslavia since 1991 (at 〈www.un.org/icty/legaldoc-e/index. htm〉) provides that the General Convention applies, inter alia, to the Tribunal and the judges who have the privileges and immunities of diplomatic envoys and are thus officials under sections 18 and 19 of that Convention. Article 29 of the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 is in similar terms (at 〈69.94.11.53/ENGLISH/basicdocs/statute.html〉).
45. Fifth Committee, Convention on the Privileges and Immunities of the United Nations - Category of official to which the provisions of Articles V and VII shall apply, Report of the Joint Sub-Committee of the Fifth and Sixth Committees, UN Doc. A/C.5/99, 28 November 1946, para. 6 (in the Sixth Committee, the document was numbered A/AC.6/97).
46. Ibid.
47. See text at note 95, infra.
48. Circular Letter from the Secretary-General to Governments on the Status of Technical Assistance Experts, UN Doc. C.N.46.1951, Treaties, 9 May 1951. The designation of "technical assistance experts" is no longer used. Staff engaged in technical assistance projects in developing countries are engaged under the 200 Series of the UN Staff Rules.
49. See The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency concerning their Status, Privileges and Immunities: Study prepared by the Secretariat, UN Doc. A/CN.4/L.118 and Add. 1, 1967 Yearbook of the International Law Commission Vol. II, Sales No. E. 86.V.9, 284 (para. 340) [hereinafter ILC Study 1967]. See also Staff Regulation 1.2(c), supra note 4.
50. See ILC Study 1967, supra note 43. This study was prepared to assist the ILC in discharging a mandate conferred by General Assembly Resolution 1289 (XIII) of 5 December 1958 to examine the relationship between States and international organizations.
51. Ibid., 284-285 (para. 341).
52. For example, in early 1973, OLA advised that members of the Joint Inspection Unit (JIU) were experts on mission (Mazilu Pleadings, supra note 29, Introductory Note, at 19 (para. 59)). Later that year, the General Assembly conferred upon members of the JIU the status of officials by Resolution 3188 (XXVIII) of 18 December 1973.
53. Arts. 8(1) and 8(2), International Convention on the Elimination of AU Forms of Racial Discrimination, adopted by General Assembly Resolution 2106 (XX), 21 December 1965, 660 U.N.T.S. 195.
54. 1969 UN Jurid. Y.B. 207-208 [hereinafter Treaty Organs Opinion].
55. Article 22 provides that the "General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions."
56. Treaty Organs Opinion, supra note 48, at 207-208.
57. Convention on the Declaration of Death of Missing Persons, 119 U.N.T.S 99.
58. General Assembly Resolution 493(V), 16 November 1950.
59. The Treaty Organs Opinion, supra note 48, did not refer to this resolution.
60. 456 U.N.T.S. 56.
61. 520 U.N.T.S. 204.
62. Treaty Organs Opinion, supra note 48, at 208, 210 (paras 4, 5 and 10).
63. Written Statement Submitted on behalf of the Secretary-General, Mazilu Pleadings, supra note 29.
64. Ibid., at 173 (para. 59).
65. Ibid., Annex I, at 195-197.
66. See text at note 29, supra.
67. Mazilu, supra note 24.
68. See Mazilu Pleadings, supra note 29, at 125-137 (Document Numbers 111 to 144). Only four of these documents were reproduced in extenso in the Mazilu Pleadings; six of the others had been published by the UN.
69. See text at note 57, supra.
70. Mazilu, supra note 24, at 193-194. The range and variety of tasks conferred upon experts on mission is immense and can be seen from the summary of internal UN documents in the Dossier presented to the ICJ in Mazilu, ranging from the Secretary-General's representative to the UN International School, to personnel provided by Governments to UN relief operations, to language coordinators and to Military Observers in UN peacekeeping missions.
71. See Mazilu Pleadings, supra note 29, Introductory Note, at 18-21 (paras 54 -76));
72. see also Written Statement of the Secretary-General, supra note 29, at 186-188 (paras 59-62).
73. In particular, "the Human Rights Committee established for the implementation of the International Covenant on Civil and Political Rights, and various other committees of the same nature, such as the Committee on the Elimination of Racial Discrimination or the Committee for the Elimination of All Forms of Discrimination Against Women". See Mazilu, supra note 16, at 194 (para. 48).
74. These treaty organs are discussed in Paul C. Szasz, "The Complexification of the United Nations System", (1999) 3 Max Planck U.N.Y.B. 1, at 17-20. The late Mr. Szasz, a former Deputy to the UN Legal Counsel and my supervisor for many years, once remarked to me that this "complexification" was a result of functional needs and any legal analysis ought to keep those functional needs firmly in view.
75. Mazilu Pleadings, supra note 29, at 133-136 (Document No.144).
76. Mazilu, supra note 24, at 195 (para. 49).
77. Ibid., at 195 (para. 50).
78. Ibid., at 193 (para. 45).
79. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999 [1999] ICJ Reports 62, at 82 (para. 42)
80. [hereinafter Cumaraswamy].
81. Ibid., at 83 (para. 43). The Court noted that the parties agreed that the Special Rapporteur was an expert on mission. Ibid., at 84 (para. 46).
82. 1999 UN Jurid. YB., 7-12, at 9 (at 〈www.un.org/law/ UNJuridicalYearbook/index.htm〉). The opinion notes that the status of the students in the peacekeeping area would have to be negotiated with the Host State for inclusion in the Status-of-Forces-Agreement (SOFA). See ibid., at 9-10.
83. Mazilu, supra note 24, at 194 (para. 48).
84. Mazilu Pleadings, supra note 29, at 133 (Document No. 144).
85. 1993 UN Jurid. YB. 400-401.
86. 1995 UN Jurid. YB. 407-408, at 408 [hereinafter Supply Opinion].
87. 1993 UN Jurid. YB. 401-402, at 402.
88. For example, the status accorded by third parties has appeared not to influence the status of experts on mission for the UN enjoyed of Members of the International Law Commission (ILC) who have while in Switzerland, by virtue of a decision of the Swiss Federal Council, the privileges and immunities of members of the ICJ, which are the privileges and immunities of heads of mission of accredited to the international organizations in Geneva. See The Work of the International Law Commission, vol.1, 6th edition (2004), 245-251, U. N. Sales No. E.04.V.6, 261.
89. 1990 UN Jurid. YB. 295-297, at 296 [hereinafter Pension Opinion].
90. See Art. 5, Regulations of the United Nations Joint Staff Pension Fund, at 〈pengva1.unjspf.org/UNJSPF_Web/page.jsp?role=bene&page= RegRules&lang=eng〉.
91. Agreement between the United Nations and the United States of America Regarding the Headquarters of the United Nations, Signed at Lake Success, 26 June 1947, 11 U.N.T.S. 11 [hereafter Headquarters Agreement].
92. Pension Opinion, supra note 79, at 296.
93. The ACABQwas established by General Assembly Resolution 14 (I) of 1946 to, inter alia, examine and report on budgetary, administrative and audit related matters to the General Assembly. See also Rules 155 to 157, Rules of Procedure of the General Assembly, UN Doc. A/520/Rev. 16 (2006).
94. See 2000 UN Jurid. YB. 41-43, at 43 (at 〈www.un.org/law/ UNJuridicalYearbook/texts/2000_extracts_legalopinions.pdf〉). Strangely, in a 1998 opinion OLA somewhat loosely observed that the
95. "consistem practice of the Organization has been to consider as 'experts on mission' persons who are charged with performing specific and important tasks for the U.N., as long as these persons are neither representatives of Member States nor staff members (i.e., officials) of the Organization", 1998 UN Jurid. YB. 481-482, at 481 [hereafter Contractor Opinion]).
96. See supra note 64.
97. Report of the Secretary-General, Comprehensive Review of the Whole Question of Peacekeeping Operations in all Their Aspects: Model Status-of-Forces Agreement for Peacekeeping Operations, UN Doc. A/45/594 of 9 October 1990, para. 26 [hereinafter Model SOFA].
98. Letter dated 24 March 2005 from the Secretary-General to the President of the General Assembly, Annex, A comprehensive strategy to eliminate future sexual exploitation and abuse in UN peacekeeping operations, prepared by Prince Zeid Ra'ad Zeid Al-Hussein, Permanent Representative of the Hashemite Kingdom of Jordan to the U.N., Annex, paragraph A.2, UN Doc. A/59/710, 24 March 2005 [hereinafter Zeid Report].
99. See Stephen J. Lepper, "The Legal Status of Military Personnel in United Nations Peacekeeping Operations: One Delegate's Analysis", (1995-1996) 18 Hous. J. Int'l. L.. 359, at 368, citing an unpublished 1994 opinion of OLA. In 1994, OLA also indicated that it would be possible to confer the status of experts on mission on military officers serving at Headquarters provided there was agreement with the contributing State concerned. See 1994 UN Jurid. YB. 440-441 [hereinafter Air Crew Opinion].
100. 1994 UN Jurid. YB. 438-440, at 439. The conditions of service of the guards were regulated by "General Conditions Governing Assignment of Members of the United Nations Guard Contingent", which document was sent to Member States that wished to contribute personnel for these purposes. Ibid., at 438.
101. 2000 UN Jurid. YB. 5, at 6-8, at 〈www.un.org/law/ UNJuridicalYearbook/index.htm〉. The Model Memorandum of Understanding referred to in this Opinion is contained in an Annex to a Note by the Secretary-General, Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations: Reform of the Procedures for Determining Reimbursement in Member States for Contingent-Owned Equipment, UN Doc. A/51/967, 27 August 1997. The text is currently under revision.
102. See Note by the Secretary-General, Revised draft model memorandum of understanding between the United Nations and [participating State] contributing resources to [the United Nations Peacekeeping Operation], UN Doc. A/61/494, 3 October 2006.
103. Policies for obtaining services of individuals on behalf of the Organization, supra note 5.
104. Ibid., paras 6-8.
105. See Administrative Instruction, Consultants and individual contractors, paras 5.4 and 8.1, UN Doc. ST/AI/1999/7 of 25 August 1999. The standard contracts are in Annex A (Consultant Contract) and Annex B (Contract for Individual Contractors).
106. Ibid., Annex A. Condition 1 of the "Consultant Contract" provides as follows: "Individuals engaged under a consultant contract serve in a personal capacity and not as representatives of a Government or any other authority external to the United Nations. They are neither "staff members" under the Staff Regulations of the United Nations nor "officials" for the purpose of the Convention of 13 February 1946 on the Privileges and Immunities of the United Nations. Consultants may, however, be given the status of "experts on mission" in the sense of Section 22 of Article VI of the Convention. If they are required to travel on behalf of the United Nations, they may be given a United Nations certificate in accordance with Section 26 of Article VI of the Convention." The Contract for Individual Contractors is in substantially identical terms.
107. See ibid., Annex B. In fact, most persons who are retained on such contracts (previously entitled "Special Services Agreements") are accorded the status of experts on mission. See 1995 UN Jurid. Y. B. 409, [hereinafter SSA Opinion].
108. See 1997 UN Jurid. YB. 440-441;
109. see also 1994 UN Jurid. YB. 455-457.
110. Experts on mission are also often supplied by Governments for particular tasks at no cost to the UN, e.g., air crew for relief operations. See Air Crew Opinion, supra note 88;
111. see also 1975 UN Jurid. YB. 181 (personnel supplied by a Government on a non-reimbursable loan basis).
112. See 1990 UN Jurid. YB. 305-306.
113. See Treaty Organs Opinion, supra note 48, at 209.
114. See Contractor Opinion, supra note 84, at 482.
115. See 1993 UN Jurid. YB. 396, at 398-400 [hereinafter International Contracted Personnel Opinion]. The opinion notes that Article IX(5) of the UNDP SBAA (available at 〈www.undp.org/osg/pm/reference_centre/chapter5/sbaa. pdf〉) requires Governments signing the SBAA to grant the same privileges and immunities that are accorded to officials under the Convention to "persons performing services" such as "operational experts, volunteers, consultants, and juridical as well as natural persons and their employees. It includes governmental or non-governmental organizations or firms which UNDP may retain, whether as an executing agency or otherwise, to execute or assist in the execution of UNDP assistance to a project, and their employees." Ibid., at 397. The UNICEF BCA reflects a more restrictive approach where the definition of "persons performing services" is limited to "individual contractors, other than officials, engaged by UNICEF to perform services in the execution of programmes of cooperation" and the immunities are limited to "immunity from legal process and to repatriation facilities in times of international crisis". Ibid., at 397.
116. See International Contracted Personnel Opinion, supra note 100, at 398. The opinion notes that in earlier years Member States provided such services, but this practice changed as many logistical functions are now contracted out, causing the UN to bid for such services on the commercial market.
117. See also Supply Opinion, supra note 76, at 408;
118. see also note 183 infra.
119. Regulation No. 2000/47, On the Status, Privileges and Immunities of KFOR UNMIK and their Personnel in Kosovo, UN Doc. UNMIK/REG/2004/47,18 August 2000 (given the circumstances of the peacekeeping operation in Kosovo, a SOFA was not concluded; UNMIK had governance power and its Regulations had the force of law in Kosovo).
120. Section 4.1 of Regulation No. 2000/47 provides as follows: "UNMIK and KFOR contractors, their employees and sub-contractors shall not be subject to local laws or regulations in matters relating to the terms and conditions of their contracts. UNMIK and KFOR contractors other than local contractors shall not be subject to local laws and regulations in respect of licensing and registration of employees, business and corporations." Section 6.2 provides that requests for waiver of these privileges and immunities shall be referred to the commander of the national element of those personnel for consideration.
121. Section 4.2 of Regulation No. 2000/47 provides as follows: "KFOR contractors, their employees and sub-contractors shall be immune from legal process within Kosovo in respect of acts performed by them within their official activities pursuant to the terms and conditions of a contract between them and KFOR." Section 6.3 provides that requests for waiver of these privileges and immunities shall be referred to the commander of the national element with which the KFOR contractor has contracted.
122. See 1997 UN Jurid. YB. 443, at 444. Of course, attendees at UN meetings need to be able to enter and exit the Host State. This is regulated by the relevant Headquarters Agreement. However, those concluded before civil society attendance at UN meetings became common do not deal with representatives from NGOs. Nevertheless, in such cases, representatives of NGOs are, in my 29 years of experience with OLA, usually given access by the Host State if they have an invitation letter from the UN. The rare cases where entry is refused involve national security or essential state interests. Attendance of NGOs is also dealt with in separate agreements concluded with States hosting UN conferences, meetings and events. See Administrative Instruction, Guidelines for the preparation of host Government agreements falling under General Assembly resolution 40/24), UN Doc. ST/AI/342, 8 May 1987.
123. See text at note 56, supra.
124. Robin R. Churchill and Geir Ulfstein, "Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law", (2000) 94 Am. J. Int'l. L. 623.
125. Ibid, at 629.
126. Ibid., at 623.
127. COP Decision 14/CP.1 decided that "the Convention Secretariat shall be institutionally linked to the United Nations, while not being fully integrated into the work programme and management structure of any particular department or programme". Doc. FCCC/CP/1995/7/Add.1, 7 April 1995. General Assembly Resolution 50/115 of 20 December 1995 noted this Decision and repeated its substance in identical terms.
128. See Note by the Executive Secretary, Designation of a Permanent Secretariat and Arrangements for its Functioning: Addendum: Institutional Linkages: Advice by the Secretary-General of the United Nations on an Institutional Arrangement for the Permanent Secretariat, UN Doc. A/AC.237/79/Add. 1, 31 December 1994.
129. Article 101, paragraph 1, of the Charter requires the Secretary-General to appoint staff under regulations established by the General Assembly. It follows that the COP could not directly appoint its Executive Secretary if that person was to have the status of a UN staff member.
130. General Assembly Resolution 76(I)113 February 1946.
131. The "linkage" has been renewed twice, the last renewal until 31 December 2006, by General Assembly resolution 56/199 of 21 December 2001 and COP Decision 6/CP.6, Doc. FCCC/CP/2001/5 of 27 July 2001. COP Decision 11/CP.11, Doc. FCCC/CP/2005/5/Add.1, 9-10 December 2005, approved this institutional linkage "until such time as a review is deemed necessary by either the Conference of the Parties or the General Assembly" and invited "the Secretary-General to seek the endorsement of the General Assembly at its sixty-first session for the continuation of the institutional linkage".
132. See Note by the Secretariat, Privileges and Immunities for Individuals Serving on Constituted Bodies established under the Kyoto Protocol, Doc. FCCC/KP/CMP/2005/6 of 16 September 2005, para. 1.
133. Ibid., paras 40-55.
134. Decision 33/CMP.1, Doc. FCCC/KP/2005/8/Add.4, 30 March 2006.
135. See Note by the Secretariat, Consultations by the secretariat with the Secretary-General of the United Nations on privileges and immunities for individuals serving on constituted bodies established under the Kyoto Protocol, Annex, Doc. FCCC/SBI/2006/6,19 April 2006, paras 4 and 6.
136. See Report of the Subsidiary Body for Implementation on its twenty-fourth session, held at Bonn from 18 to 25 May 2006, FCCC/SBI/2006/11*, Doc. FCCC/SBI/2006/11*, 11 August 2006, para. 124.
137. See Note by the Secretariat, Consultations by the secretariat with the Secretary-General of the United Nations on privileges and immunities for individuals serving on constituted bodies established under the Kyoto Protocol, Annex, Doc. FCCC/SBI/2006/20, 16 August 2006, para.4.
138. See the discussion in Part II (d), supra.
139. See Agreement among the United Nations, the Government of the Federal Republic of Germany and the Secretariat of the United Nations Framework Convention on Climate Change Concerning the Headquarters of the Convention Secretariat (20 June 1966), at 〈unfccc.int/resource/docs/cop2/miscoi. pdf〉. This Agreement makes applicable to the UNFCCC, mutatis mutandis, the Headquarters Agreement between the United Nations and the Federal Republic of Germany concerning the Headquarters of the United Nations Volunteers Programme concluded on 10 November 1995.
140. The UN takes the view that Article 105 of the Charter entails that the principles in the Convention apply even if a Member State has not acceded to the General Convention. Article 105 requires that such privileges and immunities be accorded as are necessary for the independent exercise of the functions of an official; the Convention evidences the specific privileges needed. See 1985 UN Jurid. YB. 153. In 1967, the UN Legal Counsel stated, "I doubt that I am being over bold in suggesting that the standards and principles of the Convention have been so widely accepted that they have now become a part of the
141. Mazilu, supra note 24, at 194, para.48.
142. See supra note 48, at 208.
143. Cumaraswamy, supra note 70, at 87 (para. 61).
144. Of course, the General Assembly could adopt a protocol to amend the General Convention but this would bind only States that ratified it.
145. Cumaraswamy, supra note 70, at 87 (para. 61).
146. See 1992 UN Jurid. YB. 485, at 486 [hereinafter Experts Immunity Opinion]. See also Written Statement Submitted on behalf of the Secretary-General, Mazilu Pleadings, supra note 29, at 188 (para. 63). The immunities accorded to experts on mission by the General Convention are similar to those it accords representatives of Member States to the UN. Representatives, who are part of a Permanent Mission, are given additional privileges and immunities by virtue of the various Headquarters Agreements in place where there are Permanent Missions to the UN.
147. Mexico does not accord exchange privileges to experts (Section 22 (e)) and applies Section 22(c) only to official papers and documents; the United States declared that nothing in Articles V and VI shall be construed to grant to officials and experts, who have abused those privileges and immunities, exemption from the laws and regulations concerning the continued residence of aliens. The other reservations to the General Convention relate to the jurisdiction of the ICJ under Section 30 and to the exemption of taxation and the exemption from national service enjoyed by officials. See Multilateral Treaties Deposited with the United Nations, chapter III, available at 〈untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIII/ treaty1.asp〉;
148. see also Written Statement Submitted on behalf of the Secretary-General, Mazilu Pleadings, supra note 29, at 124 (para. 14).
149. See 1992 UN Jurid. YB. 480-481.
150. Article 29 of the Vienna Convention on Diplomatic Relations (1961), 500 U.N.T.S. 95, provides, inter alia, that "[t]he person of a diplomatic agent shall be inviolable. He shall not be subject to any form of arrest or detention";
151. see Yu-Long Ling, "A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents", (1976) 33 Wash. & Lee L. Rev. 91, at 103-106.
152. See also 1995 UN Jurid. YB. 409, at 410 [hereafter Search Opinion].
153. See, e.g., UN Information Circular, Arrangements for admission to the premises at United Nations Headquarters during the sixtieth session of the General Assembly and additional arrangements for admission during the general debate, to be held from 17 to 23 September and 26 to 28 September 2005, UN doc ST/IC/2005/48, 9 September 2005, para. 16.
154. See Search Opinion, supra note 132, at 411.
155. See Aide-Mémoir Dated 26 August 1960 from the Department of Legal Affairs to the Permanent Mission of a Member State, (Mazilu Pleadings, supra note 29, at 123-124 (Doc. No. 110));
156. see also Yu Long-Ling, supra note 132, at 113-114.
157. See 1983 UN Jurid. YB. 217. The UN will not make any deductions for tax purposes or supply certificates of earnings to experts. See 1996 UN Jurid. YB. 440, at 441.
158. "The rationale of the immunity from taxation of salaries paid by the United Nations is to achieve equality of treatment for all officials of the Organization, independently of nationality. These principles were clearly enunciated by the General Assembly in resolution 78(1) of 7 December 1946 as follows: In order to achieve full appreciation of the principles of equality among Members and equality among personnel of the United Nations, Members which have not yet completed exempted from taxation salaries and allowances paid out of the budget of the Organization are requested to take early action in that matter." 1997 UN Jurid. YB. 444, at 445. See also Ralph Zacklin, "Diplomatic Relations: Status, Privileges and Immunities", in René-Jean Dupuy (ed.), A Handbook on International Organizations (1988), 193-194.
159. Mazilu, supra note 24, at 196 (para. 52).
160. Ibid., at 195 (para. 51).
161. See 1986 UN Jurid. YB. 296, at 297 [hereinafter L-P Opinion].
162. See Hill, supra note 18, ch. VII;
163. see also Robert K. Eifler, supra note 20, at 387-388.
164. See L-P Opinion, supra note 140;
165. see also Hill, supra note 18, 81-84.
166. In 1920, the Secretary-General of the League of Nations requested that the League issue its own passports, but the Assembly declined on the basis that the issue of a passport is an act of sovereignty which States could not delegate to the League. See Hill, supra note 18, at 84-87. Hill notes that, a few years later, the Secretary-General started to issue Lettres de Mission to show that the holder was engaged in the official business of the League; but the effect of these documents varied depending on the State being visited.
167. See Hill, supra note 18, at 87-90.
168. See 1993 UN Jurid. YB. 410-411. Article VIII, Section 26 of the Convention on the Privileges and Immunities of the Specialized Agencies (33 U.N.T.S. 261) enables the UN to provide laissez-passers to officials of the Specialized Agencies in accordance with relationship agreements concluded under Article 63 of the Charter. See Experts Immunity Opinion, supra note 129. Similar facilities have been accorded to related organizations that have concluded agreements with the United Nations. See, for example, the Agreement concerning the Relationship between the United Nations and the Organization for the Prohibition of Chemical Weapons signed on 17 October 2000 (for text of Agreement see the Annex to General Assembly resolution 55/283 of 7 September 2001).
169. See SSA Opinion, supra note 94, at 409.
170. See 1996 UN Jurid. YB. 437-438 [hereinafter Waiver Opinion].
171. Ibid., at 438. The obligation to deal with visa applications "as speedily as possible" does not obligate a host State to issue multiple entry visas, as the type of visa is a matter for national law. See Pension Opinion, supra note 79, at 296-297.
172. See also ILC Study 1967, supra note 43, 294 (para. 379);
173. 1971 UN Jurid. YB. 187, 191.
174. See 1993 UN Jurid. YB. 409, at 410. OLA concluded that it was reasonable that the leader of a military convoy was required to have a visa when all others in the convoy would be exempt. The key issue is whether the visa requirement interferes with the UN operation.
175. See 1993 UN Jurid. YB. 411, at 412. OLA noted that national restrictions would affect a contractor supplying travel services to the UN and, if the restriction would prevent the carrying out of assigned duties, it would be appropriate for the Organization to seek an exception from the host State because the effect of the restriction would be contrary to the intent of Section 25 of the General Convention and the purposes of Article 105 of the Charter. Ibid., at 412.
176. Normally, decisions on waiver are made in the name of the Secretary-General. Given the large number of staff and other agents of the U.N., it would obviously be reasonable for the Secretary-General to delegate such authority to another official or officials. While no formal delegation has been made, requests for waiver of immunity, in practice, are referred to OLA for advice. Two published opinions have stated that the Legal Counsel has the delegation to waive immunity in respect of the provision to a national court of sworn testimony concerning or in the course of official functions (this requires waiver of the privileges and immunities of the agent testifying because the essence of sworn testimony is that the expert is subject to the authority of the national court, including penalties if false testimony is given). See 1978 UN Jurid. Y.B. 191-192 [hereinafter Testimony Opinion], and Waiver Opinion, supra note 146.
177. See 1969 UN Jurid. Y.B. 224, at 225. See also the statement of the Legal Counsel to the Fifth Committee in 1981 which noted that the Secretary-General had a right under the international instruments conferring privileges and immunities "to independently determine whether or not an official act had been involved". 1981 UN Jurid. YB. 161, at 161. See also 1995 UN Jurid. Y.B. 403, at 404.
178. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep. 174, at 183. This passage was cited in Cumaraswamy, supra note 70, at 85 (para. 51).
179. Cumaraswamy, supra note 70, at 87 (para. 61). The Court noted that it was normal for Special Rapporteurs to make comments to the press and that the Commission took note of these press reports when extending Mr. Cumaraswamy's mandate and found that the "Secretary-General was able to find support for his findings in the Commission's position". Ibid., at 86 (para. 55). The Court held that the Secretary-General correctly concluded that, in speaking the words in the press conference, Mr. Cumaraswamy was acting in the course of his mission and that section 22(b) "affords Mr. Cumaraswamy immunity from legal process of every kind". Ibid., at 86 (para. 56).
180. See Peter H. F. Bekker, "Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights", (1999) 93 Am. J. Int'l L. 913, at 921.
181. The author was a member of the OLA for 29 years and to his knowledge the consistent practice of the UN was to treat the obligations in Section 21 as applying to the entire Convention.
182. League of Nations, Official Journal, 1926, 1422-1224. The text of the 1926 Modus Vivendi is reproduced in Hill, supra note 18, Annex II; the quoted passage is at 139.
183. See 1964 UN Jurid. YB. 260, at 261; see also 1973 UN Jurid. YB. 166-167.
184. Ibid., at 261.
185. Zeid report, supra note 87, paras 78-93.
186. Ibid., para. 87;
187. see also the discussion of the various mechanisms for criminal accountability of all types of United Nations personnel, including experts on mission, in Anthony J. Miller, "Legal Aspects of Stopping Sexual Exploitation and Abuse in UN Peacekeeping Operations", (2006) 39 CornellInt'l. L. J. 71, at 89-95.
188. Zeid report, supra note 87, para. 88.
189. Ibid., para. 90.
190. General Assembly Resolution 59/300, 22 June 2005.
191. See Note by the Secretary-General, "Ensuring the accountability of United Nations staff and experts on mission with respect to criminal acts committed in Peacekeeping Operations", UN Doc. A/60/980, 16 August 2006, which transmitted the Report of the Group of Legal Experts. Part III of the report (paras 27-44) makes a series of detailed recommendations on how the Organization can assist and strengthen the capacity of a host State to deal with criminal acts of UN staff and experts on mission.
192. Ibid., Part IV and Annex II.
193. Reg. I(e), Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, adopted by General Assembly Resolution 56/280, 27 March 2002, reprinted in UN Doc. ST/SGB/2002/9, 18 June 2002 (together with an Introduction and Commentary prepared by the Secretary-General).
194. Art. IOI, para. 3, UN Charter.
195. See supra note 95.
196. Cumaraswamy, supra note 70, at 89 (para. 66). The principle that agents of international intergovernmental organizations were accountable for their personal or unofficial actions was recognized early on. Hill, supra note 18, at 76 (pointing out that, while League officials were immune from national jurisdiction in relation to their duties, "It is no less clear, on the other hand, that national courts should not be prevented from acting when those interests are not involved.").
197. Consultant contracts, and contracts for individual contractors, currently provide, inter alia, that the holders must refrain from any conduct that would adversely reflect on the UN and they must undertake that they shall not engage in any activity that is incompatible with the aims and objectives of the Organization and that failure to conform to the standards of conduct specified therein shall lead to termination of the contract at the initiative of the UN. See Administrative Instruction, Consultants and individual contractors, supra note 93, Annex A and Annex B, Cl. 2. Section 5.16 of the Administrative Instruction provides that "failure to conform to the standards of conduct set out above shall lead to termination of service for cause, at the initiative of the United Nations."
198. Expert Regulations, supra note 166. Regulation i(b) requires all experts on mission to sign the following declaration witnessed by the Secretary-General or an authorized representative: "I solemnly declare and promise to exercise in all loyalty, discretion and conscience the functions entrusted to me by the United Nations, to discharge these functions and regulate my conduct with the interest of the United Nations only in view, and not to seek or accept instructions in regard to the performance of my duties from any government or other source external to the Organization." Regulation i deals with the status of experts on mission and notes their privileges and immunities. Regulation 2 sets out some 13 rules of conduct. Regulation 3 provides experts "are accountable to the United Nations for the proper discharge of their functions".
199. Ibid., Introduction, para. 5.
200. See C.F. Amerasinghe, The Law of the International Civil Service (1994), 91-98.
201. The standards of conduct applicable to UN staff, together with an official explanatory commentary prepared by the Secretary-General, are set out in Status, Basic Rights and Duties of United Nations Staff Members, UN Doc. ST/SGB/1998/19, 10 December 1998.
202. Section 29 of the General Convention provides: "The United Nations shall make provision for the appropriate modes of settlement of: (a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; (b) Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General."
203. An excellent overview of the issue of accountability is contained in International Law Association, Accountability of International Organizations, Berlin Conference (2004), reprinted in (2004) 1 Int'l Org. L. Rev. 221.
204. Report of the Secretary-General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, UN Doc. A/51/389, 20 September 1996, para. 7 n. 2 [hereinafter Liability Report], citing a Letter dated 6 August 1965 from the Secretary-General to the Representative of the Union of Soviet Socialist Republics concerning payment of indemnities to Belgian citizens resident in the Democratic Republic of the Congo, which letter was published in Letter dated 6 August 1965 from the Secretary-General to the representative of the Union of Soviet Socialist Republics concerning the payment of indemnities to Belgian citizens residents of the Democratic Republic of the Congo, UN Doc. S/6597, 6 August 1965.
205. For example, in asserting the Organization's immunity recently, OLA noted that the complainant has a remedy in that he has a right to have an appropriate means of settlement of his contractual dispute with the Organization. See 2000 UN Jurid. YB. 32, 34-35, available at 〈www.un.org/law/UNJuridicalYearbook/ texts/2000_extracts_legalopinions.pdf〉. See also Emmauel Gaillard Si Isabelle Pingel-Lenuzza, "International Organizations and Immunity from Jurisdiction: To Restrict or To Bypass", (2002) 51 Int'l L. Comp. L. Q. 1, at 11-15.
206. See Expert Regulations, supra note 166.
207. Report of the Secretary-General, Procedures in place for implementation of Article VIII, Section 29, of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946, UN Doc, A/C.5/49/65, 24 April 1995 [hereinafter Dispute Settlement Report].
208. See also Veronica L. Maginnis, "Limiting Diplomatic Immunity: Lessons Learned from the 1946 Convention on the Privileges and immunities of the United Nations", (2003) 28 Brook. J. Int'l L. 989, at 1018-1019.
209. See Dispute Settlement Report, supra note 180, paras 7, 13, 17 and 21.
210. See Alice Ehrenfeld, "United Nations Immunity Distinguished from Sovereign Immunity", (1958) 52 Am. Soc. Int. Proc. 88, at 93-94. The late Ms. Ehrenfeld (subsequently Mrs. Weil) had a distinguished career with OLA spanning well over 30 years.
211. See Liability Report, supra note 177, paras 20-37. Claims in peacekeeping operations are often in respect of damage caused by person who are neither officials nor experts on mission, such as members of national contingents who have immunities defined by SOFAs (see Zeid report, supra note 87, Annex, paras A.27-A.29).
212. To my knowledge, during the period 1975 to the early 1990s, there were, at most, half a dozen arbitrations. The late Ms. Weil (supra note 182) supervised me in two of them. Most cases were settled prior to the arbitration process; a few were settled after the arbitration process was instituted.
213. The Secretary-General reported to the General Assembly that the arbitration cases that occurred "were in large part the consequences of the difficulties that arose with the sudden exponential growth in peacekeeping activities in the late 1980s and the early 1990s, and the switch from traditional reliance on Governments of Member States for support services to the use of commercial vendors." See Report of the Secretary-General, Procurement-related arbitration, summary, UN Doc. A/54/458, 14 October 1999.
214. General Assembly Resolution 52/226 A, 31 March 1998.
215. See Report of the Secretary-General, Report of the Office of Internal Oversight Services on the review of procurement-related arbitration cases, Summary, UN Doc. A/53/843, 1 March 1999. The report emphasized the challenges posed by the rapid expansion in peacekeeping operations during this period. Ibid, para. 4. In a subsequent report, OIOS recommended that resort be had to conciliation and mediation because arbitration had become costly and cumbersome.
216. See Note by the Secretary-General, Report of the Office of Internal Oversight Services on the in-depth evaluation of the Office of Legal Affairs, UN Doc. E/AC.51/2002/5, 9 April 2002, para. 20.
217. See also the Report of the Advisory Committee on Administrative and Budgetary Questions, Procurement-related arbitrations, UN Doc. A/55/829, 9 March 2001. Annex III of this report contains a detailed Report of the Board of Auditors on the expanded examination of the practices and procedures with regard to the handling of arbitration/claims cases by the United Nations Administration.
218. Ibid., para. 25 and Annex A. The report noted that "since 1995 there have been a total of 12 arbitration cases, of which n related to peacekeeping activities (the twelfth case relates to construction activities carried out by the United Nations Development Programme)". Ibid., para. 4. The situation was also commented upon by the UN Board of Auditors. See Report of the Secretary-General, First report on the implementation of the recommendations of the Board of Auditors on the accounts of the United Nations for the biennium ended 31 December 1999, UN Doc. A/55/380, 13 September 2000, paras 15-31.
219. The author thanks Mrs. Maria Vicien-Milburn, Director, General Legal Division/OLA, and Ms. Andra Nicoara, a Legal Officer on her staff, for discussing this issue with him.
220. Dispute Settlement Report, supra note 180, paras 23-24.
221. Liability Report, supra note 177, paras 38-44.
222. General Assembly Resolution 41/210, 11 December 1986. The background and reasons for the Headquarters Regulation adopted by this resolution, and its scope and intended operation, are discussed in Paul C. Szasz, "The United Nations Legislates to Limit its Lability", (1987) 81 Am. J. Int'l L. 739.
223. Headquarters Agreement, supra note 81, Section 8.
224. See Liability Report, supra note 177, paras 6-7 on the principle of liability and at paras 38-44 on limitations of liability.
225. Report of the Secretary-General, Administrative and budgetary aspects of the financing of United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, UN Doc. A/51/903, 21 May 1997.
226. Ibid., para. 40. This has become standard practice. In Kosovo, where the UN was the governing authority by virtue of Security Council Resolution 1244 (1999), 24 June 1999, no SOFA with the Former Federal Republic of Yugoslavia was concluded and thus no limitation of liability exists because the Model SOFA (supra note 86) does not yet contain provision on limitation of liability as it was drafted before the General Assembly adopted the limitations on liability.
227. See General Assembly Resolution 52/247, 26 June 1998. The resolution limits economic loss to what the UN would pay to a member of a UN body for a service incurred injury and limits non-economic loss to $100,000 and prohibits punitive and moral damages.
228. Cumaraswamy, supra, note 70, at 83 (para.43).