The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary (Oxford Commentaries on International Law) 0198744617, 9780198744610

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OXFORD COMMENTARIES ON INTERNATIONAL LAW General Editors: Professor Philip Alston, Professor of International Law at New York University, and Vaughan Lowe QC, Essex Court Chambers, London and Emeritus Fellow of All Souls College, Oxford

The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies

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

Edited by AUGUST REINISCH Assistant Editor

PETER BACHMAYER

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Oxford University Press, apart from Annex I, which is held by the International Labour Organization, and Annex V, which is held by the International Monetary Fund, 2016 The moral rights of the authors have been asserted First Edition published in 2016 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2015949852 ISBN 978–0–19–874461–0 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Foreword Miguel de Serpa Soares* I welcome with great pleasure the commentaries on the Convention on the Privileges and Immunities of the United Nations, the General Convention, and the Convention on the Privileges and Immunities of the Specialized Agencies, the Specialized Agencies Convention, which document the drafting histories of the provisions of the Conventions and the practice developed over the decades in their interpretation and application as well as providing insightful academic analysis in relation to key provisions of the Conventions. I further welcome these commentaries as they provide further clarity that the legal regimes under these Conventions, which arise out of the functional concept of privileges and immunities articulated in the Charter of the United Nations, were established in a different context than the Vienna Convention on Diplomatic Relations and, consequently, there are significant variances between the two regimes. The General Convention represents one of the brightest lights in the firmament of United Nations law. Adopted expeditiously by the General Assembly at its first session in 1946, the General Convention gives effect to paragraphs 1 and 2 of Article 105 of the Charter, which establish the fundamental principles that the United Nations shall enjoy in the territory of its Members such privileges as are necessary for the fulfilment of its purposes, and the Representatives of Members and officials of the Organization shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions. When adopting the General Convention, the General Assembly recognized ‘that there are many advantages in the unification as far as possible of the privileges and immunities enjoyed by the United Nations and the various specialized agencies’1 and instructed the Secretary-General to open negotiations on the elaboration of a convention applicable to their activities. At the second session in 1947, the General Assembly approved the text of the Convention on the Privileges and Immunities of the Specialized Agencies, which contains many of the same provisions as the General Convention. The report of the Committee charged with drafting Article 105 of the Charter at the San Francisco Conference provides that ‘if there is one principle certain it is that no Member State may hinder in any way the working of the Organization or take any measure the effect of which might be to increase its burdens financial or otherwise’.2 The United Nations has consistently maintained the importance of this key principle in ensuring that no additional burden—financial or otherwise—is imposed on the United Nations as it greatly hinders its ability to undertake its tasks. With significant developments in the type and nature of activities carried out by the Organizations, coupled with the general increase in its operations worldwide, ensuring respect for provisions of the Conventions has been challenging at times, more recently due in part to the global financial downturn as well as what appears to be a growing trend to equate international organizations with States. In all cases, however, no efforts have been spared to ensure the

* Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. 1 UN General Assembly Resolution 22 D (I) of 13 February 1946, para 1. 2 Documents of the United Nations Conference on International Organization, San Francisco, 1945, vol. XIII, 705.

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fair and uniform application of the Conventions. Overall, these efforts have been successful, as the dispute settlement provisions of the Conventions, including the request for an advisory opinion from the International Court of Justice, have only been resorted to in a few limited circumstances between member States and the United Nations. The United Nations and its Specialized Agencies operate to varying degrees in all corners of the world. Its activities scan the spectrum of human experience, from development to economic and social affairs, peacekeeping and human rights. It is not an exaggeration to state that the aspirations of the United Nations and its Specialized Agencies could not be achieved without the essential protections and clear legal framework provided by the two Conventions and their implementation by States. One of the most important and integral of these protections (and the most discussed) is the immunity from legal process enjoyed by the Organization and its officials and experts on mission. Immunity is a sine qua non for all international organizations, most particularly those of the United Nations, including its Funds and Programmes, and its Specialized Agencies. That is why it has been provided by the member States. Without immunity, ensuring the independence of the operations from any authority external to the Organizations would be virtually impossible. The commentaries reaffirm the importance of this immunity while simultaneously raising thought-provoking questions on its scope. It should be noted that many States have agreed to provide privileges and immunities to the United Nations and its Specialized Agencies that go beyond those granted by the Conventions. This practice, which usually takes the form of bilateral agreements concluded with the State concerned, including status-of-forces agreements, is typical in States where the United Nations and its Specialized Agencies have a large presence. At times such additional privileges are essential to the presence by the United Nations and its Specialized Agencies and, in other cases, it has allowed for more efficient and cost-effective operations on the ground. As the Organization’s activities continue to evolve, it is sincerely hoped that more host States will be willing to grant such additional privileges and immunities as are necessary to enable the United Nations to carry out its important functions for the benefit of its 193 member States. While there are published opinions available in the United Nations Juridical Yearbook on some of the provisions of these Conventions, these commentaries facilitate access to the relevant opinions by topic. The commentaries also include discussions of the relevant judicial opinions from the International Court of Justice as well as the judicial bodies of member States and further elucidate the essential secondary sources in this field. They contribute to the understanding of two of the oldest multilateral treaties adopted by the General Assembly. Academics as well as legal experts from within and outside the United Nations and its Specialized Agencies have devoted their valuable time, effort, and considerable experience to the compilation of this volume. While the opinions contained herein are those of the authors in their personal capacities, and they do not necessarily reflect the views of the United Nations or the Specialized Agencies, as the United Nations Legal Counsel and head of the United Nations Office of Legal Affairs, I am grateful for their service. The contributors gathered here have produced an important work that will no doubt serve as a widely used and valuable reference, helping to clarify these challenging issues and bring us all closer to shared understandings in this critical area of international law. New York June 2015

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Preface The 1946 Convention on the Privileges and Immunities of the United Nations (General Convention) and its companion 1947 Convention on the Privileges and Immunities of the Specialized Agencies (Specialized Agencies Convention) have broken new ground in international institutional law. For the first time, questions crucial for the efficient functioning of international organizations have been addressed in two largely corresponding multilateral treaties. Since then the Conventions have served as the legal bases for assessing to what extent the United Nations and its Specialized Agencies, their properties and assets as well as their staff members, member States representatives and experts are exempt from national law, enjoy inviolability and/or immunities from local jurisdiction and enforcement measures. Although specific aspects covered by the two Conventions have been dealt with in various scholarly writings, there has not been any in-depth analysis of the entire set of their contents so far. This article-by-article commentary is intended to fill this gap and will provide a comprehensive analysis of the two treaties by legal practitioners and scholars. I am very grateful to the authors, leading academics in the field and legal advisers of the United Nations and its Specialized Agencies as well as their teams who have agreed to contribute to this commentary. They have provided rigorous legal expertise coupled with rich insight into the practice of international organizations. Each commentary section follows a common template, first providing a general introductory overview, followed by an examination of the travaux préparatoires of the respective provisions, leading to the core analysis of key elements. The latter central part of each commentary section combines scholarly explanations with illustrations of how the Conventions’ provisions have been applied in practice. I am particularly grateful to the tireless efforts of my assistant editor, Dr Peter Bachmayer, who has most efficiently co-ordinated the work of the more than 30 contributors to this book, helped to edit the contributions, commented on some provisions, and motivated everyone. My thanks also go to John Louth and Merel Alstein of Oxford University Press who helped tremendously in the initial stages of this project as well as to Emma Endean, Matthew Humphrys and Emily Brand who have accompanied it throughout the publishing process. Finally, thanks go to Philipp Janig and Jose Magnaye for their meticulous work during the final editing procedure. I would also like to acknowledge the University of Vienna and the Austrian Science Fund (FWF—I581-G16) which have institutionally and financially supported two rounds of workshops with the contributors as well as crucial research tasks in connection with this commentary. August Reinisch Vienna, June 2015

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Contents Table of Cases Table of Treaties Table of Statutes Abbreviations List of Contributors

xiii xxv xlix li lix

I. INTRODUCTION

Introduction to the General Convention (August Reinisch) Introduction to the Specialized Agencies Convention (August Reinisch)

3 15

II. DEFINITIONS

Definitions and Scope (Article I Sections 1–2 Specialized Agencies Convention) (Riccardo Pavoni)

25

III. JURIDICAL PERSONALITY

Juridical Personality (Article I Section 1 General Convention) (Niels Blokker) Juridical Personality (Article II Section 3 Specialized Agencies Convention) (Niels Blokker)

49 57

I V . I M M U N I T I E S A ND P R I V I L E G E S A. JURISDICTIONAL IMMUNITY

Immunity of Property, Funds, and Assets (Article II Section 2 General Convention) (August Reinisch) Immunity of Property, Funds, and Assets (Article III Section 4 Specialized Agencies Convention) (Gian Luca Burci)

63 99

B. INVIOLABILITY OF PREMISES

Inviolability of Premises (Article II Section 3 General Convention) (Lance Bartholomeusz) Inviolability of Premises (Article III Section 5 Specialized Agencies Convention) (Riccardo Pavoni)

125 141

C . I N V I O L A B I L I T Y O F A R C H I V ES

Inviolability of Archives (Article II Section 4 General Convention) (Gian Luca Burci) Inviolability of Archives (Article III Section 6 Specialized Agencies Convention) (Gian Luca Burci)

157 179

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D. FINANCIAL OPERATIONS

Financial Operations (Article II Sections 5–6 General Convention) (Eva Devoldere and Michael Schoiswohl) Financial Operations (Article III Sections 7–8 Specialized Agencies Convention) (Riccardo Pavoni)

191 205

E . T A X E X E M PT I O N S

Exemptions from Taxes, Customs Duties, and Prohibitions on Imports and Exports (Article II Sections 7–8 General Convention) (Rutsel Silvestre J. Martha) Exemptions from Taxes and Customs Duties (Article III Sections 9–10 Specialized Agencies Convention) (Rutsel Silvestre J. Martha)

219 235

V. FACILITIES IN RESPECT OF COMMUNICATIONS

Facilities in Respect of Communications (Article III Sections 9–10 General Convention) (Peter Bachmayer) Facilities in Respect of Communications (Article IV Sections 11–12 Specialized Agencies Convention) (Peter Bachmayer)

245 265

VI. REPRESENTATIVES OF MEMBERS

Representatives of Members (Article IV Sections 11–16 General Convention) (Ursula Kriebaum) Representatives of Members (Article V Sections 13–17 Specialized Agencies Convention) (Ursula Kriebaum)

275 303

VII. OFFICIALS

Officials (Article V Sections 17–21 General Convention) (Ronja Bandyopadhyay and Tomoko Iwata) Officials (Article VI Sections 18–23 Specialized Agencies Convention) (Ana Sofia Barros and Cedric Ryngaert)

313 395

VIII. EXPERTS ON MISSIONS

Experts on Missions (Article VI Sections 22–23 General Convention) (Ronja Bandyopadhyay and Tomoko Iwata)

439

IX. ABUSE OF PRIVILEGES AND IMMUNITIES

Abuse of Privileges and Immunities (Article VII Sections 24–25 Specialized Agencies Convention) (Ana Sofia Barros and Cedric Ryngaert)

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X. LAISSEZ-PASSER

Laissez-Passer (Article VII Sections 24–28 General Convention) (Michael Schoiswohl) Laissez-Passer (Article VIII Sections 26–30 Specialized Agencies Convention) (Liliana Lopez-Bello and Michael Schoiswohl)

477 511

XI. DISPUTE SETTLEMENT

Dispute Settlement (Article VIII Sections 29–30 General Convention) (Kirsten Schmalenbach) Dispute Settlement (Article IX Sections 31–32 Specialized Agencies Convention) (Kirsten Schmalenbach)

529 589

X I I . A N N E X ES A N D A P P L I C A T I O N T O I N D I V I D U A L SPECIALIZED AGENCIES

Annexes and Application (Article X Sections 33–40 Specialized Agencies Convention) (Behrouz Moradi)

609

XIII. FINAL PROVISIONS

Final Article (Final Article Sections 31–36 General Convention) (Christina Binder) Final Provisions (Article XI Sections 41–49 Specialized Agencies Convention) (Christina Binder)

629 659

X I V . A N N E X E S O F T H E S P EC I A L I Z ED A G EN C I E S C O N V E N T I O N

Annex I—International Labour Organization (ILO) (Tilmann Geckeler) Annex II—Food and Agriculture Organization of the United Nations (FAO) (Antonio Tavares) Annex III—International Civil Aviation Organization (ICAO) (John V. Augustin and Andrew Opolot) Annex IV—United Nations Educational, Scientific, and Cultural Organization (UNESCO) (Anna Segall) Annex V—International Monetary Fund (IMF) (Jennifer Lester and Pheabe Morris) Annex VI—International Bank for Reconstruction and Development (IBRD) (Edward Chukwuemeke Okeke) Annex VII—World Health Organization (WHO) (Gian Luca Burci) Annex VIII—Universal Postal Union (UPU)—no modifications Annex IX—International Telecommunication Union (ITU) (Peter Bachmayer)

699 715 731 741 749 755 777 785 787

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Annex X—International Refugee Organization (IRO)—no longer in existence Annex XI—World Meteorological Organization (WMO)—no modifications Annex XII—International Maritime Organization (IMO) (August Reinisch) Annex XIII—International Finance Corporation (IFC) (Marina Feldman, Carlos Franzetti, and Maria Magdalena Chiquier) Annex XIV—International Development Association (IDA) (Edward Chukwuemeke Okeke) Annex XV—World Intellectual Property Organization (WIPO) (August Reinisch) Annex XVI—International Fund for Agricultural Development (IFAD) (Rutsel Silvestre J. Martha) Annex XVII—United Nations Industrial Development Organization (UNIDO) (Behrouz Moradi) Annex XVIII—United Nations World Tourism Organization (UNWTO) (Alain Pellet)

793 795 797 805 815 817 825 833 845

XV. RELATED INSTITUTIONS

The Privileges and Immunities of the Members of the International Court of Justice, the Registrar, and Other Persons Connected With the Business of the Court (Philippe Couvreur and Antoine Ollivier) 859 The Privileges and Immunities of the Organization for the Prohibition of Chemical Weapons (OPCW) (Alberto E. Dojas) 873 Appendix 1a: Convention on the Privileges and Immunities of the United Nations Appendix 1b: Convention on the Privileges and Immunities of the Specialized Agencies Appendix 2a: Parties, Declarations, and Reservations to the Convention on the Privileges and Immunities of the United Nations Appendix 2b: Parties, Declarations, and Reservations to the Convention on the Privileges and Immunities of the Specialized Agencies

925

Bibliography Index

937 989

885 891 915

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Table of Cases DOMESTIC COURTS A.A.P.A.P. v. E.L. van S., The Netherlands, District Court of The Hague, 16 April 1980, Case No. 2833 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870 Adbi Hosh Askir v. United Nations, Hon. Boutros Boutros-Ghali, Joseph E. Connor, Brown & Root Services Corp. and ‘Doe’ Corporations, 933 F. Supp. 368 (S.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82, 87, 567 Agence de Coopération Culturelle et Technique v. Housson, Cour d’appel de Bordeaux, France, 18 November 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 Al-Dar Palestinian Company for Construction and Reconstruction /Dar Co. Ltd v. United Nations Development Program, Palestinian People Aid Program (UNDP/ PAPP), Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2009/170, Judicial Authority, 24 June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81, 90, 94 Alfred Dunhill of London v. Republic of Cuba, United States, 425 U.S. 682 (1976) . . . . . . . . . . . . . 71 Al-Masri v. UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 502330-030-13, Position of the Attorney General, 18 August 2013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Anonymous v. Decision of the Provincial Revenue Authority for Vienna, Austria, Administrative Court, Case No. 81/13/0031, 28 October 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 93 Application of Wünsche Handelsgesellschaft, In Re, Germany, Federal Constitutional Court, 22 October 1986, [1987] 3 CMLR 225 (Solange II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Aquarone, Re, Stanislas Aquarone v. France, Supreme Court of Appeal, 6 June 1997, Decision No. 148683, ILDC 1809 (FR 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .346, 415 Arab Monetary Fund v. Hashim and others, Court of Appeal (Civil Division), 1 February 1996 in 1 Lloyd’s Reports 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Arcaya v. Paez, United States, 145 Fed Suppl. 464 (S.D.N.Y. 1956); Court of Appeals, 244, F. 2d 958 (2nd Cir. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 AS v. Iran-United States Claims Tribunal, Local Court of the Hague, The Netherlands, 8 June 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 Atkinson v. Inter-American Development Bank, United States, 156 F3d. 1335 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71, 809 Avenol v. Avenol, France, Juge de Paix Paris, 8 March 1935, 8 Ann. Dig. (1935–7) 395 . . . . . . . . . . 72 Awad Iskandar Guirgis v. UNRWA Representative and the Director, Department of Palestine Affairs, Egypt, Cairo Court of First Instance, 31 December 1961, Department 23—Labour Tribunal, Case No. 258 of 1958. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 B. et al v. EPO, Germany, Federal Constitutional Court, Second Chamber, 3 July 2006, 2 BvR 1458/03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Banco de Seguros del Estado v. IFC and Stiegwardt, et al v. IFC, 2007 U.S. Dist. LEXIS 69741. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809 Banque africaine de développement v. M.A. Degboe, France, Cour de Cassation, Chambre Sociale, 25 janvier 2005, 04-41012, (2005) 132 Journal du Droit International 1142 . . . . . . . . . . 75 Basem Husein Rasheed Saleh v. UNDP, Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2008/220, Judicial Authority, 6 April 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 85, 91, 92 Bergaveche v. United Nations Information Centre, Argentina, Juzgado del Trabajo No. 17, Buenos Aires, 7 February 1956, Annual Report of the Secretary General, 12 U.N. GAOR, Supp. (No. 1) 124, UN-Doc. A/3594; Camara Nacional de Apelaciones del Trabajo de la Capital Federal, 19 March 1958, (1959) 94 Revista Juridica Argentina La Ley 585; 26 ILR (1958-II), 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Bertolucci v. European Bank for Reconstruction and Development, [1997] UKEAT 276_97_2207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .406, 407

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Table of Cases

Bisson v. United Nations, World Food Program and Others, United States, Decision on a Report and Recommendation of a US Magistrate Judge, Case No 06-6352, ILDC 889 (US 2008), 11 February 2008 (S.D.N.Y.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 89, 96, 534 Boimah v. United Nations General Assembly, United States, 664 F. Supp. 69, 71 (E.D.N.Y. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 86, 87, 95, 534 Broadbent v. OAS, United States, 481 F. Supp 907 (DDC 1978), 628 F.2d 27 (D.C. Cir.1980), 63 ILR 162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66, 739 Bustami v. UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 1650/07 (1093/09), 2 March 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Carretti v. FAO, Italy, Corte di Cassazione, No 1237/04, (2004) Archivio civile 1328 (23 January 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726 Chemidlin v. Bureau international des Poids et Mesures, France, Tribunal Civil of Versailles, 27 July 1945, Journal du Palais 1945.2.124, 12 Ann.Dig. (1943-45) 281 . . . . . . . . . . . . . . . . . . . 74 Chiriboga v. International Bank for Reconstruction and Development et al, United States, 616 F. Supp. 963 (D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765 Consortium X. v. Swiss Federal Government (Conseil Federal), Switzerland, Swiss Federal Supreme Court, 1st Civil Law Chamber, 4A.1/2004/ech, 2 July 2004, partly published as ATF 130 I 312, ILDC 344 (CH 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Corrinet v. United Nations et al, Judgment No. C-95-0426 SAW, 10 September 1996 (US District Court, Northern District of California) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87, 383 Curran v. City of New York et al, United States, Supreme Court, Special Term, Queens County, 29 December 1947, 77 N.Y.S.2d 206, 209 (Sup. Ct. 1947) . . . . . . . . . . . . . . . . 91 Cynthia Brzak and Nasr Ishak v. United Nations, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al, United States, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), 597 F.3d 107 (2d Cir. 2010). . . . . . . . . . . . . . . . 77, 82, 84–87, 89, 332, 333, 337, 340, 406, 534, 535, 561, 564 D. v. Decision of the EPO Disciplinary Board, Germany, Federal Constitutional Court, Second Chamber, 28 November 2005, 2 BvR 1751/03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 D’Cruz v. Annan, 05 Civ. 8918, 2005 WL 3527153 (S.D.N.Y. 22 December 2005), aff ’d 223 Fed Appx 42 (2d Cir 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332, 340, 378, 387 Dajani Pal Tourist & Travel Agency v. UNDP, Israel, Magistrates Court in Jerusalem, Civil Case No. 32295-10-11, 17 June 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 90 David H. Lempert v. Susan Rice, U.S. Ambassador to the United Nations, United Nations, United Nations Development Programme, Civ. A. No. 12-01518 (CKK), 2013 U.S. Dist. LEXIS 101525 (D.D.C. 19 July 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81, 87, 91 De Luca v. United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al, U.S. District Court S.D.N.Y., 10 January 1994, 841 F. Supp. 531 (S.D.N.Y. 1994), aff’d 41 F.3d 1502 (2d Cir 1994), writ of certiorari denied, 514 US 1051 (1995) . . . . . . . . 71, 82, 86, 87, 331–33, 339, 340, 378, 387 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 77, 82, 83, 85, 534, 535 Diaz-Diaz v. U.N. Economic Commission for Latin America, Mexico, Junta de Conciliacion y Arbitraje, 7 August 1953, Annual Report of the Secretary General, 9 U.N. GAOR, Supp. (No. 1) 105, UN Doc. A/2661; Supreme Court, 28 April 1954, Annual Report of the Secretary General, 9 UN GAOR, Supp. (No. 1) 105, UN Doc. A/2663 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Dinastia L.P. and Official Committee of Unsecured Creditors, Debtor, Enterasys Networks, Inc., Plaintiff v. Mexmal Mayorista, S.A. de C.V. and others, In Re Defendants, 381 B.R. 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810 Drago v. International Plant Genetic Resources Institute, Italy, Appeal Judgment, No. 3718, 19 February 2007, Court of Cassation, Giustizia civile Massimario 2, Italy, ILDC 827 (IT 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76, 533 Duhalde, Mario Alfredo v. Organización Panamericana de la Salud—Oficina Sanitaria Panamericana s/Accidente—ley 9688, Argentina, CSJN, 31 August 1999 . . . . . . . .103, 591

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Dupree Associates, Inc. v. Organization of American States and the General Secretariat of the Organization of American States, U.S. District Court DC, 31 May 1977, 22 June 1977, No. 76-2335 (Memorandum Orders); 63 ILR 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Dutto v. United Nations High Commissioner for Refugees, Argentina, Labor Court of Appeals, 31 May 1989, Case No. 87.803, La Ley (1989), D, 532; 117 JDI (1990), 448; (1992) 89 ILR 90–2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Entico Corp Ltd v. United Nations Educational, Scientific and Cultural Organization and Secretary of State for Foreign and Commonwealth Affairs, United Kingdom, [2008] EWHC 531 (Comm) (18 March 2008). . . . . . . . . . . . . . . 77, 105, 116, 121, 151, 152, 591 European Patent Office v. Stichting Restaurant De La Tour, The Netherlands, Court of Appeal of The Hague, 21 June 2011, LJN: BR0188 . . . . . . . . . . . . . . . . . . . . . . . . . . 873 European University Institute v. Piette, Italy, Court of Cassation, 18 March 1999 No 149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 FAO v. Colagrossi, Italy, Corte di Cassazione, 18 May 1992, No. 5942, 101 ILR 386. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 115, 726 Firma Baumeister Ing. Richard L v. O, Austria, Supreme Court, 14 December 2004, 10 Ob 53/04 y; ILDC 362 (AT 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70, 90, 151 Food and Agriculture Organization of the United Nations v. Istituto Nazionale di Previdenza per i Dirigenti di Aziende Industriali (INPDAI), Italy, Corte di Cassazione, 18 October 1982, Case No. 5399, (1982) UNJYB 234, 87 ILR 1 . . . . . . . . . . . 44, 70, 114–15, 726 General Secretariat of the ACP Group v. Lutchmaya, Belgium, Court of Cassation, Final Appeal Judgment, 21 December 2009, Cass Nr. C 03 0328 F; ILDC 1573 (BE 2009) . . . . . . . . . 76 German OSCE ‘Representative’ Case, Austria, Supreme Court, 6Ob150/05k, 1 December 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283, 284 Gregoire v. Gregoire, New York Law Journal, 28 February 1952, cited in the UN Secretariat Study 1967 (n 133), at 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Herbert Harvey Inc. v. National Labor Relations Board, United States, 385 F.2d 684 (D.C. Cir. 1967), 424 F.2d 770 (D.D.C. Cir. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Hetzel v. EUROCONTROL, Germany, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59, 63; NJW (1982), 512, DVBl (1982), 189, DÖV (1982) 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Hilpern v. UNRWA, Egypt, 1952, Annual Report of the Director of UNRWA, 8 U.N. GAOR, Supp. (No. 12) 26, UN-Doc. A/2470 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Hudes v. Aetna Life Insurance et al, United States, 806 F. Supp. 2d 180, 188 (D.C. Cir. 2011). . . . 766 Humblet v. Belgian State, Judgment no. 6/60 [1960] ECR 559, 16 December 1960 . . . . . . 346, 417–18 Hunter v. United Nations, UNICEF and Others, United States, Judicial Review of Administrative Order, 800 N.Y.S.2d 347 (Sup. Ct. N.Y. County 2004), ILDC 693 (US 2004), 15 November 2004, Supreme Court [N.Y. Sup.] . . . . . . . . . . . . . . . . . . . . . 80, 87 IFC v. GDK Systems and Hogan Systems Inc., 711 F. Supp.15 (D.D.C. 1989) . . . . . . . . . . . . . . . 807 International Bank for Reconstruction and Development v. District of Columbia, United States, 171 F.3d 687 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79, 757 International Bank for Reconstruction and Development v. District of Columbia, United States, 996 F. Supp. 31 (D.D.C. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224, 769 International Centre for Advanced Technical and Vocational Training (International Labour Organization) v. Tirone Rosangela et al, Court of Cassation (1992) UNJYB 506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 105, 122 International Institute of Refrigeration v. Elkaim, France, Court of Appeal of Paris (Twenty-first Chamber), 7 February 1984, 77 ILR (1988), 498–506; Cour de Cassation, 1. ch. civ., 8 November 1988; Bull. civ (1988), I, 211, No. 309; Gazette du Palais, 21 February 1989, 38; 35 AFDI (1989) 875 . . . . . . . . . . . . . . . . . . . . . . . . . . 74 International Tin Council, In Re, High Court, Chancery Division, 22 January 1987; [1987] 2 WLR 1229; [1987] 1 All ER 890; [1987] 1 Ch 419 . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Internationale HandelsgesellschaftmbH v. Einfuhr- und Vorratstelle für Getreide und Futtermittel, Germany, Federal Constitutional Court, 29 May 1974 [1974] 2 CMLR 540 (Solange I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

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Investment & Finance Company of 11 January 1984 Limited (Investerings- & Finansieringsselskabet af 11/1 1984 ApS) v. UNICEF, Denmark, High Court for Eastern Denmark, First Instance, 26 August 1999, Case No. U 2000 478 Ø, ILDC 64 (DK 1999). . . . . . . . . . . . . . . 80, 91 Ismet Zerin Khan v. World Bank and Others, High Court of Dhaka, Suit/Case No. 48, 28 April 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Iyov v. UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 24931-12-11, Position of the State Attorney General, 4 June 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Jeffrey Liang (Huefeng) v. People of the Philippines, GR No. 125865, 28 January 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333, 404, 407 Kaiser Group International, Inc., IFC v. Kaiser Group International, Inc. (Kaiser I), In Re, United States, 302 B.R. 814 (D. Del. 2003), 2003 U.S. Dist. LEXIS 23852; In Re: Kaiser Group International, Inc., IFC v. Kaiser Group International, Inc. (Kaiser II), 308 B.R. 666 (D. Del. 2004), 2004 U.S. Dist. LEXIS 3098; In Re: Kaiser Group International, Inc., IFC v. Kaiser Group International, Inc. (Kaiser III), 399 F.3d 558 (3rd Cir. 2005); 2005 U.S. App. LEXIS 3288; 60 Fed. R. Serv. 3d (Callaghan) 1153; Bankr.L.Rep (CCH) P80, 244; 44 Bankr. Ct. Dec. 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808 Keeney v. United States, 111 F. Supp. 223 (D.D.C. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . .161–62 Kevin Wallace v. Her Majesty The Queen in Right of Canada (HMQ), Canada, Ontario Superior Court of Justice, 23 December 2014, ONSC 744, 9 . . . . . . . . . . . . . . . . . . . . 181–82, 188 Lutcher Sa Celulose Papel v. Inter-American Development Bank, United States, 382 F.2d 454 (D.C. Cir. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759, 760, 762, 763 Lutchmaya v. General Secretariat of the ACP Group, Belgium, Court of Cassation, Appeal decision, 4 March 2003, Journal des Tribunaux 2003, 684; ILDC 1363 (BE 2003) . . . . . . 76 M. et Mme A, France, Conseil d'Etat, decision No. 346486, 23 July 2012 . . . . . . . . . . . . . . . . . . . 771 Mahalwas v. United Nations Truce Supervision Organization and Attorney General (intervening), Israel, Jerusalem District Court, Appeal Decision, 15 August 2007, PLA 3093/07, ILDC 1070 (IL 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 85 Manderlier v. Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Tribunal Civil de Bruxelles, 11 May 1966, 45 ILR (1972) 446; Manderlier v. Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Belgium, Cour d’appel de Bruxelles, 15 September 1969, Pasicrisie Belge (1969), 247, (1969) UNJYB 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66, 72, 76, 83, 84, 88, 95, 535, 540, 547 Mary O’Brien v. Ireland, the Attorney General and the Minister for Defence, Ireland, High Court, 26 August 1994, [1995] 1 ILRM 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 McGehee v. Albright, 210 F. Supp.2d 210 (S.D.N.Y. 24 June 1999), aff ’d 208 F.3d 203 (2d Cir 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332, 378, 387 Means v. Means, United States, 60 Misc. 2d 538 (N.Y. Fam. Ct. 1969) . . . . . . . . . . . . . . . . . . .93, 170 Mendaro v. World Bank, United States, 717 F.2d 610 (D.D.C. Cir. 1983). . . . . . . . . . . . 96, 332, 561, 760, 762, 765, 809 Menon v. Weil, United States, Civil Court of the City of NY, New York County, 26 March 1971; 320 N.Y.S.2d 405, 66 Misc. 2d 114 (N.Y. City Civ. Ct. 1971) . . . . . . . . . . . . . 93 Miller v. Canada [2001] 1 SCR 407, 2001 SCC 12 (Supreme Court, 1 March 2001) . . . . . . . .152, 153 Miller v. Monit International Inc [2001] 1 SCR 432, 2001 SCC 13 (Supreme Court, 1 March 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152, 153 Milosevic v. 1. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991, 2. The Netherlands, The Netherlands, The Hague District Court, KG 02/105, Judgement in interim injunction proceedings, 26 February 2002, (2002) UNJYB 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Morgan v. International Bank for Reconstruction and Development, United States, U.S. District Court DC, 13 September 1990, 752 F. Supp. 492 (D.D.C. 1990). . . . . . . . . . . 71, 592, 766 Mr M v. UNIDO, Cameroon, Tribunal de Première Instance de Yaoundé, Judgment No. 1778, 23 August 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 841 Mrs H v. UNIDO, Austria, Landesgericht für ZRS Wien, 3 Cg 194/04b-24, 7 April 2005; Oberlandesgericht Wien, 15 R 144/05i, 16 December 2005; Supreme Court, 5 Ob 82/06d, 29 August 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842 Ms S v. UNIDO, Austria, Oberlandesgericht Wien, 15 R 94/00d, 5 June 2000. . . . . . . . . . . . . . . . 841

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Mukoro v. European Bank for Reconstruction and Development, Employment Appeal Tribunal, 19 May 1994, [1994] UKEAT 813_92_2303; ICR 897; 107 ILR 604 . . . . . . . . . . . . 406 Mustafic v. The Netherlands, The Netherlands, Court of Appeal in The Hague, Case No. 200.020.173/01 Judgment of 5 July 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 Nafissatou Diallo v. Dominique Strauss-Kahn, United States, Index No. 307065/11 (New York Supreme Court, 1 May 2012), (2012) UNJYB 537–544 . . . . . . 398, 428, 622, 623, 676 Nicol v. United Nations Mission in Liberia, United States, Civil Action No. 09-1800, at 5 (E.D. Pa. July 30, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 87, 96, 338 NML Capital Ltd and EM Limited v. Bank for International Settlements and Debt Enforcement Office Basel-Stadt, Final Appeal Judgment, Switzerland, No 5A 360/2010, 12 July 2010, BGE 136 III 379 (Partial), ILDC 1547 (CH 2010) . . . . . . . . . 470 OSS Nokalva v. European Space Agency, United States, 617 F.3d 756 (3d Cir. 2010) . . . . . . . . . . . . 71 Osseiran v. International Finance Corp., 498 F. Supp.2d 139, U.S. District Court for the District of Columbia, 27 July 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .809, 810 Paola Pistelli v. European University Institute, Italy, Court of Cassation, 28 October 2005, No. 20995, ILDC 297 (IT 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 People of the State of New York v. Mark S. Weiner, 378 N.Y.S. 2d 966 (Crim Ct of City of NY, 19 January 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 Prokosch v. Catalina Lighting, Inc., United States, 193 F.R.D. 633 (D. Minn. 2000) . . . . . . . . . . . 768 P.S. Ochani v. World Health Organization, Delhi High Court, 4 December 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 117, 119, 121 R. Peter Panuschka v. Peter Schaufler, Austria, Commercial Court of Vienna, 29 November 1965, 12 Cg 802/65-2; (1965) UNJYB 246 . . . . . . . . . . . . . . . . . . . . . . . . . .94, 151 Radicopoulos v. UNRWA, Egypt, Annual Report of the Director of UNRWA, 13 U.N. GAOR, Supp. (No. 14) 41, UN-Doc. A/3931 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Rendall-Speranza v. Nassim, United States, 107 F.3d 913 (D.D.C.Cir. 1997) . . . . . . . . . . 407, 547, 808 SA Energies Nouvelles et Environnement v. Agence Spatiale Européenne, Belgium, Civ Bruxelles (4e ch.), 1 December 2005, (2006) Journal des tribunaux 171, ILDC 1229 (BE 2005); SA Energies Nouvelles et Environnement v. Agence Spatiale Européenne, Appeal Judgment No. 2011/2013, 23 March 2011, 2006/AR/1480, ILDC 1729 (BE 2011) . . . . . 76 Sadikoglu v. United Nations Development Programme, Civ. A. No. 11-0294 (PKC), 2011 WL 4953994 (S.D.N.Y. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81, 534 Saja Ibrahim v. Red Crescent Association, UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 2524/08, 5 May 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Schuster v. UN Information Center, Argentina, National Labor Court, CSJN, 31 July 1951, 1952; Annual Report of the Secretary General, 7 U.N. GAOR, Supp. (No. 1) 165, UN Doc. A/2141 (1952); Annual Report of the Secretary General, 8 U.N. GAOR, Supp. (No. 1) 149, UN Doc. A/2404 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Shamsee v. Shamsee, United States, New York Supreme Court, Appellate Division, 2nd Dept. 19 May 1980; 74 A.D.2d 357, 428 N.Y.S.2d 33 (2d Dep’t 1980), UNJYB (1980) 222, aff’d, 53 N.Y.2d 739, 439 N.Y.S.2d 356, 421 N.E.2d 848 (1981), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981) . . . . . . . . . . . . . . . . . . . . .84, 93, 336 Sharma v. UNDP Regional Manager, South Asia, India, Office of the Labour Commissioner, Delhi Administration, 10 October 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Shigeko Ui v. United Nations University, Japan, Tokyo District Court, 21 September 1977, (1980) 23 The Japanese Annual of International Law 196–200 . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Siedler v. Western European Union, Belgium, Labour Tribunal (Brussels), 7 March 2002; Brussels Labour Court of Appeal (4th Chamber), 17 September 2003, ILDC 53 (BE 2003); Court of Cassation, Appeal Judgment, 21st December 2009, Case No. S 04 0129 F, ILDC 1625 (BE 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 76 Siragnian Reuven Paul v. United Nations Truce Supervision Organization, Israel, Misc. Civ. App. (District Court, Jerusalem) 4262/04, Civil Claim 5234/03, Takdin District Court Rulings 2005(1), 2524 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Stadtbaumeister B v. Mrs L, Austria, Bezirksgericht Innere Stadt Wien, 32 C 999/89g-2, 7 August 1989; Supreme Court, 5 N 502/90, 6 March 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . 841 State Secretary for Financial Affairs v. Passer, Decision No. 16786, 7 June 1972, Netherlands Court of Cassation, summarized in (1978) UNJYB 208, 208–9. . . . . . . . . . . . .345, 346

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Stichting Mothers of Srebrenica and Others v. Netherlands and United Nations, The Netherlands, Court of First Instance, 10 July 2008, LJN: BD6796, 295247 / HA ZA 07-2973 Judgment in the incidental proceedings; Appeal Court of The Hague, 30 March 2010, LJN: BL8979; Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012) . . . . . . . . . . . . . . . .66, 69, 77, 78, 83, 88, 89, 91, 533, 534 Tachiona (on her own behalf, on behalf of her late husband Tapfuma Chiminya Tachiona, and on behalf of all others similarly situated) and Others v. Mugabe and Others and United States (intervening), Appeal Judgment, 386 F.3d 205 (2d Cir. 2004), ILDC 1090 (US 2004), 6 October 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280, 291, 292 The Netherlands v. Nuhanovic, The Netherlands, Court of Appeal in the Hague, Case 200.020.173/01, Judgment of 5 July 2011; Supreme Court, Case 12/03324, Judgment of 6 September 2013, ILDC 2061 (NL 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . .544, 545 Tononoka Steels Limited v. Eastern and Southern Africa Trade and Development Bank, Kenia, Court of Appeal, Appeal judgment, 13 August 1999, Civil Appeal No 255 of 1998, 2 EA 536 (CAK), ILDC 1283 (KE 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Trempe v. ICAO Staff Association, Canada, High Court Province of Quebec, Judgment of 20 November 2003, (2003) UNJYB 585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .591, 739 Trempe v. Assoc. du personnel de l’OACI et al and Trempe v. Conseil de L’OACI et al, Nos. 500-05-061028-005 and 500-05-063492-019, District de Montréal, Canada, 2 November 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Tuck v. Pan American Health Organization, United States, U.S. District Court DC, 17 November 1980, No. 80-1546 (D.D.C. 1980); U.S. Court of Appeals DC Cir, 13 November 1981; 668 F.2d 547 (D.C. Cir. 1981), UNJYB (1981) 177 . . . . . . . . . . . . . . . . . . 71 UNESCO v. Boulois, France, Tribunal de grande instance de Paris (Ord. Réf.), 20 October 1997, Rev Arb. (1997) 575; Cour d’Appel Paris (14e Ch. A), 19 June 1998, (1999) 24 Yearbook Commercial Arbitration 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 533, 591 UNIDO ad-hoc Mission Case, Austria, Supreme Court, 12 Os 3/98, 12 February 1998, SSt 1998 No. 63/4, 127 ILR 88, ILDC 2169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298, 307, 841 United Nations v. Parton, 369 F. Supp.2d 1 (D.D.C., 16 May 2005). . . . . . . . . . . . . . . . . . . . . . . 176 United Nations Korean Reconstruction Agency v. Glass Production Methods Inc. et al, United States, US District Court DC, 3 August 1956; 143 F. Supp. 248 (S.D.N.Y. 1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 United States ex rel. Casanova v. Fitzpatrick, United States, 214 F. Supp. 425 (S.D.N.Y. 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276, 296 United States v. Bahel, 662 F.3d 610, 621 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 United States v. Coplon, 84 F. Supp. 472, 474 (S.D.N.Y. 10 May 1949) . . . . . . . . . . . . . . . . . . . . 333 United States v. Egorov et al, 222 F. Supp. 106, 108 (EDNY 7 October 1963) . . . . . . . . . . . . . . . . 333 United States v. Melekh et al, 190 F. Supp. 67 (S.D.N.Y. 28 November 1960) . . . . . . . . . . . . . . . . 333 United States v. Porciello, Italy, Corte di Cassazione, 27 January 1977 . . . . . . . . . . . . . . . . . . . . . . 399 United States Lines Inc. v. World Health Organization, Intermediate Appellate Court, 30 September 1983, (1983) UNJYB 232, 107 ILR 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . .103, 121 Urban v. United Nations, United States, 768 F.2d 1497, 248 U.S. App. D.C. 64 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Van Aggelen v. United Nations, United States, 2009 WL 414175 (2d Cir. 20 February 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 332, 378, 387 Van der Zwalmen and Massart v. Belgian State, Case C-229/98, ECR [1960] I-7113 . . . . . . . . . . . 417 Van Vloten v. Commissioner of Internal Revenue, The Hague Court of Appeal, 9 December 1969, summarized in (1969) UNJYB 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Vathsala Devi and Seetharam Sivam v. Shavendra Silva, United States, Trial Judgment, 861 F. Supp.2d 135, 9 April 2012 (S.D.N.Y. 2004), ILDC 2781 (US 2012) . . . . . . . . . . . .292, 293 W. v. UNRWA, Lebanon, Labor tribunal attached to the Ministry of National Economy, 1952, Annual Report of the Director of UNRWA, 8 U.N. GAOR, Supp. (No. 12) 25, UN-Doc. A/2470 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

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Wafa Hamud v. UNDP, Israel, Regional Labor Court of Jerusalem, Case No. 1987-09, 7 November 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Wencak v. United Nations, United States, Supreme Ct. N.Y., 18 June 1956, 23 ILR (1956) 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Westchester County on Complaint of Donnelly v. Ranollo, Decision of the City Court of New Rochelle, New York, 67 NYS 2d. 31, 8 November 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . 403 X. v. European Patent Organization, Labour Court Berlin-Charlottenburg, Germany, 22 February 1994, State Labour Court Berlin, 12 September 1994. . . . . . . . . . . . . . . . . . . . . . . 399 X. v. Ministère Public, Decision of the Central Court of the Canton of Vaud, Criminal Court of Cassation, 19 May 1979, (1980) UNJYB 221–2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 X. v. Secretary of State for Finance, The Netherlands, Supreme Court, 16 January 2009, LJN: BF7264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 X. v. UN Economic Commission for Latin America, Chile, Supreme Court, 8 November 1969, (1969) UNJYB 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 X. v. UNRWA, Lebanon, Labor Arbitration Tribunal, July 1953, Annual Report of the Secretary General, 9 U.N. GAOR, Supp. (No. 1) 106, UN-Doc. A/2663 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Y. v. UNRWA, Jordan, Magistrate Court, January 1954, Annual Report of the Director of UNRWA, 9 U.N. GAOR, Supp. (No. 17) 31, UN-Doc. A/2717 (1954) . . . . . . . . . . . . . . . . . . . 82 Yacoub Ayoub v. UNRWA, Israel, Regional Labor Court of Jerusalem, Case 24931-12-11, 24 January 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 YY. v. UNRWA, Egypt, Court in Gaza, 17 August 1957, Annual Report of the Director of UNRWA, 12 U.N. GAOR, Supp. (No. 14) 47, UN-Doc. A/3686 (1957) . . . . . . . . . . . . . . . . . . 82 ZM v. Arab League, Switzerland, Federal Supreme Court, 4 C.518/1996, unpublished judgment of 25 January 1999, partly published in L Caflisch, ‘La pratique suisse en matière de droit international public 1999’, (2000) 10 Revue suisse de droit international et européen 627, 642. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Zoernsch v. Waldock and Another, 1 WLR 675, 1964, 41 ILR 438 . . . . . . . . . . . . . . . . . . . . . . . . 410

INTERNATIONAL COURTS Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, 12 December 1947, (1948) ICJ Rep 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 Al-Adsani v. United Kingdom, ECtHR, App No. 35763/97, 21 November 2001, IHRL 2981 (ECHR 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Al-Jedda v. United Kingdom, ECtHR, App No. 27021/08, Judgment 7 July 2011 . . . . . . . . . . . . . 546 Andreasen v. the United Kingdom and 26 other Member States of the European Union, ECtHR, App No. 28827/11, Decision 31 March 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 13 June 1989, (1989) ICJ Rep 177 (Mazilu) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 219, 439–41, 443–46, 449, 453–60, 573, 584, 630, 711 Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations, ICJ Pleadings, Oral Arguments, 24 May 1989, Documents (ICJ Sales No. 627) 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 441, 443–46, 449 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 7 March 1988, (1988) ICJ Rep 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .575, 578 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, 3 February 2003, (2003) ICJ Rep 7 . . . . . . . . . . . . . . . . . . 650 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, 11 July 1996, (1996) ICJ Rep 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, Merits, 26 February 2007, (2007) ICJ Rep 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .579, 650 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 1 April 2011, (2011) ICJ Rep 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .582, 604 Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 3 February 2006, (2006) ICJ Rep 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580 Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, 10 July 2002, (2002) ICJ Rep 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .580, 604 Beer and Regan v. Germany, ECtHR, App No. 28934/95, 18 February 1999 . . . . . . . . . . . . . . .73, 115 Behrami v. France, Saramati v. France, ECtHR, App No. 71412/01, 78166/01, 2 May 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .545, 546 Border and Transborder Armed Actions (Nicaragua/Honduras), Jurisdiction and Admissibility, Judgment, 20 December 1988, (1988) ICJ Rep 68. . . . . . . . . . . . . . . . . . . . . . . . 582 Certain Property (Liechtenstein v. Germany), Preliminary Objections, 10 February 2005, (2005) ICJ Rep 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, 8 June 1960, (1960) ICJ Rep 150 . . . . . . . . . . . . 799 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999, (1999) ICJ Rep 62 (Cumaraswamy) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 95, 117, 118, 169, 239, 326, 327, 330, 331, 333–37, 339, 403, 404, 430, 445, 460, 461, 534, 548, 555, 560, 573, 585–88, 802, 822, 830, 870 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 13 July 1954, (1954) ICJ Rep 47 . . . . . . . . . 72, 74, 95, 530, 536, 570 Electricity Company of Sofia and Bulgaria (Preliminary Objections), Judgment, 4 April 1939 (1939) PCIJ Series A/B No. 77 . . . . . . . . . . . . . . . . . . . . . . . 581, 582, 861 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 20 December 1980, (1980) ICJ Rep 63 . . . . . . . . . . . . . 45, 148, 587, 603 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 30 March 1950, (1950) ICJ Rep 74. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .578, 583 Judgments of the Administrative Tribunal of the International Labour Organisation upon complaints made against UNESCO, Advisory Opinion, 23 October 1956, (1956) ICJ Rep 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539, 563, 573, 588, 597, 598 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, 1 February 2012, (2012) ICJ Rep 10 . . . . . . . . . . . . . . . . . . . 107 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 3 February 2012, (2012) ICJ Rep 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 78, 89, 870 Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, 13 December 1999, (1999) ICJ Rep 1045. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 Klausecker v. Germany, ECtHR, App No. 415/07, 29 January 2015 . . . . . . . . . . . . . . . . . . .66, 73, 74 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria, Equatorial Guinea intervening), Preliminary Objections, 11 June 1998, (1998) ICJ Rep 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa Notwithstanding Security Council Resolution 276 (1970)), Advisory Opinion, 21 June 1971, (1971) ICJ Rep 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, (2004) ICJ Rep 136. . . . . . . . . . . . . . . . . . . . . . . . . . 583, 584, 586 Legality of the Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, 15 December 2004, (2004) ICJ Rep 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650

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Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion (Request by the World Health Organization), 8 July 1996, (1996) ICJ Rep 66 . . . . . . . . . . . . . . 605 Mavrommatis Palestine Concessions (Greece v. Great Britain), Judgment, 30 August 1924, 1924 PCIJ (Series A) No. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .542, 578 Military and Paramilitary Activities in and against Nicaragua (Nicaragua/United States of America), Jurisdiction and Admissibility, 26 November 1984, (1984) ICJ Rep 392 . . . . . . . . . 582 Nada v. Switzerland, ECtHR, App No. 10593/08, 12 September 2012. . . . . . . . . . . . . . . . . . . . . . 546 Nuclear Tests Case (New Zealand v. France), Judgment, 20 December 1974, (1974) ICJ Rep 473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619 Perez v. Germany, ECtHR, App No. 15521/08, 29 January 2015 . . . . . . . . . . . . . . . . . . . . .65, 78, 79 Prosecutor v. Edouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera and Andre Rwamakuba, ICTR-98-44-T, Decision on the Ex Parte Motion for Order to United Nations Department of Peace-Keeping Operations for Production of Documents (9 March 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 Prosecutor v. Milan Milutinovic et al, IT-05-84-AR 108bis.1, Decision on Request of the North Atlantic Treaty Organization for Review (15 May 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 173 Prosecutor v. Radovan Karadzic, IT-95-5/18-Y, 2 March 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 20 July 2012, (2012) ICJ Rep 422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .579, 582 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, (1949) ICJ Rep 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 49, 53, 57, 334, 338, 386, 403, 552, 630, 634, 639, 649, 756–57 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, (1951) ICJ Rep 15 . . . . . . . . . . . . . . . . . 580, 583, 630 Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, 26 November 1957, (1957) ICJ Rep 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640 SAT Fluggesellschaft mbH v. EUROCONTROL, Case 364/92, ECR I [1994] 43 . . . . . . . . . . . . . . 74 Sison v. Council, ECJ, Judgment, 23 November 2011, Case T-341/07, ECR II-3625 . . . . . . . . . . . 554 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, 21 December 1962, (1962) ICJ Rep 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 Status of Eastern Karelia, Advisory Opinion, 23 July 1923, (1923) PCIJ Series B No. 4 . . . . . . . . . . 583 Stichting Mothers of Srebrenica v. The Netherlands, ECtHR, App No. 65542/12, 11 June 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66, 78, 534 Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, 3 February 1994, (1994) ICJ Rep 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 Ufficio Imposte di Consumo di Ispra v. Commission of the European Communities, Order, Case 2/68, 17 December 1968, [1968] ECR 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 UNRRA v. Daan Cantonal Court Amersfoort, 16 June 1948, District Court Utrecht, 23 February 1949, Supreme Court (Hoge Raad) of the Netherlands, Decision of 19 May 1950, NJ 1951, 150; 16 ILR (1949), 337 (Case 114) . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 United Nations v. B; Tribunal Civil of Brussels, 27 March 1952, 19 ILR 490 (1952) . . . . . . . . . . . . 55 United States Diplomatic and Consular Staff in Tehran (United States of America/Iran), Provisional Measures, 15 December 1979, (1979) ICJ Rep 7 . . . . . . . . . . . . .366, 582 United States Diplomatic and Consular Staff in Tehran, Judgment, 24 May 1980, (1980) ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Waite and Kennedy v. Germany, ECtHR, App No. 26083/94, 18 February 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73–78, 88, 89, 115, 533 Western Sahara, Advisory Opinion, 16 October 1975, (1975) ICJ Rep 24 . . . . . . . . . . . . . . . .583, 586

ADMINISTRATIVE TRIBUNALS A v. IMF, IMFAT Judgment No. 1999–1 (12 August 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 A-M B v. ITU, ILOAT Judgment No. 3138 (4 July 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 Adrian v. Secretary-General of the UN, United Nations Administrative Tribunal, 23 July 2004, Judgment No.AT/DEC/1183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .360, 562

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Akello, UNDT Judgment, Case No. UNDT/2012/124 (9 August 2012) . . . . . . . . . . . . . . . . . . . . 571 Applicant v. Secretary-General, UNAT Judgment No. 1320 (27 July 2007) . . . . . . . . . . . . . . . . . . 571 Applicant v. Secretary-General, UNAT Judgment No. 1343 (27 July 2007) . . . . . . . . . . . . . . . . . . 538 B H v. UPU, ILOAT Judgment No. 2203 (3 February 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Bokshi and Bujupi, UNMIK Human Rights Advisory Board, Decision of 6 June 1008, Case No. 12/07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542 Bustani, In Re, ILOAT Judgment No. 2232 (16 July 2003) . . . . . . . . . . . . . . . . . . . . . . . 396, 881, 882 Desgranges v. ILO, ILOAT Judgment No. 11 (12 August 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Di Giacomo v. Secretary-General, UNDT Judgment, Case No. UNDT/2011/168 (26 September 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .561, 571 Durand, UNAT Judgment No. 1204 (24 November 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 E v. International Bank for Reconstruction and Development, World Bank Administrative Tribunal Decision No. 325 (12 November 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 El Moctar, UNDT Judgment, Case No.UNDT/NBI/2011/011 (24 July 2012). . . . . . . . . 556, 563, 571 Fagan, UNAT Judgment No. 679 (9 November 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Farunges, UNDT Judgment, Case No. UNDT/2012/056 (19 April 2012) . . . . . . . . . . . . . . . . . . . 539 Gabaldon, UNAT Judgment No. 2011-UNAT-120 (11 March 2011) . . . . . . . . . . . . . . . . . . . . . . 563 Grover v. WHO, ILOAT Judgment No. 803 (13 March 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 Handelsman, UNAT Judgment No. 885 (4 August 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Hashimi, UNDT Judgment, Case No. UNDT/2014/017 (6 February 2014) . . . . . . . . . . . . . . . . . 571 J B v. International Labour Organization (ILO), ILOAT Judgment No. 2797 (4 February 2009) . . . 121 J-DM v. ILO, ILOAT Judgment No. 2888, 13 November 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . 598 J M V G v. UNIDO, ILOAT Judgment No. 2665 (11 July 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 842 James, UNAT Judgment No. 2010-UNAT-009 (3 March 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 539 Kadri Balaj et al, UNMIK Human Rights Advisory Panel, Case No. 04/07, Decision of 31 March 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Kaplan, UNAT Judgment No. 19 (21 August 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Kennedy v. FAO, ILOAT Judgment No. 339 (8 May 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Klausecker v. EPO, ILOAT Judgment No. 2657 (11 July 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Krasniqi, UNMIK Human Rights Advisory Panel, Case No. 48/08, Decision of 13 March 2010 . . . 543 Labarthe v. FAO, ILOAT Judgment No. 307 (6 July 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Liaci v. EPO, ILOAT Judgment No. 1964 (12 July 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73, 597 M B v. WIPO, ILOAT Judgment No. 3420 (11 February 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 597 M L v. OPCW, ILOAT Judgment No. 2232 (16 July 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881 Mendez, UNAT Judgment No. 268 (8 May 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Morin, UNDT Judgment, Case No. UNDT/2011/069 (12 April 2011) . . . . . . . . . . . . . . . . . . . . . 571 Mwangi, UNAT Judgment No. 1125 (25 July 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 N M and Others, UNMIK Human Rights Advisory Panel, Case No. 26/08, Decision of 10 June 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Obdeijn, UNDT Judgment, Case No. UNDT/2011/032 (10 February 2011). . . . . . . . . . . . . . . . . 571 Powell, UNDT Judgment, Case No. UNDT/2012/039 (28 March 2012). . . . . . . . . . . . . . . . . . . . 570 Quéguiner, UNAT Judgment No. 202 (3 October 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 R K v. EPO, ILOAT Judgment No. 2657 (11 July 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Rubio v. UPU, ILOAT Judgment No. 1644 (10 July 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Sachdev v. IMF, IMFAT Judgment 2012-1 (6 March 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 Skandera v. the World Bank, WBAT, Decision No. 2 (5 June 1981) . . . . . . . . . . . . . . . . . . . . . . . 599 Spahiu, UNMIK Human Rights Advisory Panel, Case No. 02/08, Decision of 20 March 200 . . . . . 543 T v. WHO, ILOAT Judgment No. 3141 (4 July 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471 Tadonki, UNDT Judgment, Case No. UNDT/2009/016 (1 September 2009) . . . . . . . . . . . . . . . . 571 Turner, UNDT Judgment, Case No. UNDT/2010/170 (24 September 2010) . . . . . . . . . . . . . . . . 563

OTHERS Ary Spaans v. The Netherlands, ECommHR, App No. 12516/86, 12 December 1988 (Admissibility), 58 Decisions and Reports (1988) . . . . . . . . . . . . . . . . .73, 74, 89

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European Molecular Biology Laboratory (EMBL) v. Federal Republic of Germany, ad hoc Arbitration Tribunal, Award of 29 June 1990, 105 ILR 1–74. . . . . . . . . . . . . . . . . . . . . . . .224, 770 IBRD and IMF v. All America Cable and Radio, Inc. (1953), Federal Communications Commission, USA, 22 ILR 705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773 Question of the Tax Regime Governing Pensions Paid to Retired UNESCO Officials Residing in France, Arbitral Award of 14 January 2003, XXV United Nations Reports of International Arbitral Awards (2006) 231–66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 Starways Ltd v. The United Nations, Arbitral Tribunal, Award of 24 September 1969 . . . . . . . .542, 558

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Table of Treaties BILATERAL TREATIES Albania Agreement between the United Nations Children’s Fund and the Government of the Republic of Albania, signed on 23 July 1993, 1730 UNTS 353 . . . . . . . . 654 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . 656

Austria Agreement between the International Atomic Energy Agency and the Republic of Austria regarding the Headquarters of the International Atomic Energy Agency, signed on 11 December 1957, 339 UNTS 110 . . . . . . . . . . . . . 36, 40, 145, 146, 152, 211, 213, 277, 400, 419, 420, 427, 434, 592 s 1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 s 1(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 s 1(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Art III . . . . . . . . . . . . . . . . . . . . . . . 145, 146 s 7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 s 7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 s 7(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 s 8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 s 9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 s 9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 s 23(a)(v). . . . . . . . . . . . . . . . . . . . . . . . . 212 s 23(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 213 s 23(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Art XV . . . . . . . . . . . . . . . . . . . . . . . . . . 410 s 38(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 410 s 38(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 413 s 38(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 s 38(h) . . . . . . . . . . . . . . . . . . . . . . . . . . 420 s 48(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 434 s 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Agreement between the Republic of Austria and the International Bank for Reconstruction and Development, the International Finance Corporation and the Multilateral Investment Guarantee Agency regarding the Establishment of liaison offices in Vienna, signed on 21 July 2010, 2772 UNTS 55 . . . . . . . . . 417, 592, 601 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601

Agreement between the Republic of Austria and the United Nations regarding the Seat of the United Nations in Vienna (UNOV HQ), signed on 29 November 1995, 2023 UNTS 254 . . . . . . . . . . . . . . . . 10, 246, 276, 346, 347, 349, 356, 457, 575, 656, 657, 836, 841, 842 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 26 . . . . . . . . . . . . . . . . . . . . . . . . 346, 657 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 s 29(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 29(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 29(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 356 s 37(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 656 s 37(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 s 37(k) . . . . . . . . . . . . . . . . . . . . . . . . . . 349 s 38(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 374 s 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457 s 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 s 49(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 359 Agreement between the United Nations and the Republic of Austria regarding the Headquarters of the United Nations Industrial Development Organization, signed on 13 April 1967, 600 UNTS 94 . . . . . . . . . . . . . 10, 259, 298, 307 Art II . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 Art XI . . . . . . . . . . . . . . . . . . . . . . . 298, 307 s 23 . . . . . . . . . . . . . . . . . . . . . . . . 298, 307 Agreement between the Republic of Austria and the United Nations Industrial Development Organization regarding the Headquarters of the United Nations Industrial Development Organization, signed on 29 November 1995, Austrian Official Gazette BGBl. III 100/1998 . . . . . . . . . . .41, 146, 212–14, 400, 410, 415, 416, 418, 420, 422, 423, 427, 472, 592, 836 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 s 17(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 147 s 25(a)(v). . . . . . . . . . . . . . . . . . . . . . . . . 212 s 25(b) . . . . . . . . . . . . . . . . . . . . . . 213, 214 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416

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s 29(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 472 s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Art XII . . . . . . . . . . . . . . . . . . 400, 410, 415 s 37 . . . . . . . . . . . . . . . . . . . . . . . . 400, 415 s 37(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 410 s 37(d) . . . . . . . . . . . . . . . . . . . . . . 413, 415 s 37(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 s 37(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . 420 s 37(o) . . . . . . . . . . . . . . . . . . . . . . . . . . 422 s 38(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 427 s 39(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 415 Art XIII. . . . . . . . . . . . . . . . . . . . . . . . . . 423 Art XIV. . . . . . . . . . . . . . . . . . . . . . . . . . 592

signed on 28 December 2011, 2795 UNTS Reg. No. 49172 . . . . 321, 354, 355, 449, 452 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 32 . . . . . . . . . . . . . . . . . . . . . . . . 354, 355

Cameroon Agreement between the United Nations Development Programme and the Government of Cameroon, signed on 25 October 1991, 1653 UNTS 195 . . . . . 657 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . 657

Argentina

Canada

Agreement between the United Nations (Economic Commission for Latin America) and Argentina concerning the Office of the Economic Commission for Latin America in Buenos Aires, signed on 9 April 1979, 1979 UNJYB 20 . . . . . . . . . . . . . . . . . . . . . . . 656 Headquarters Agreement for the Permanent Office of the United Nations Office for Project Services in the Argentine Republic, signed on 21 May 2007, 2445 UNTS 231 . . . . . . . . . . . . . . . . . . . . . . . 575 Art XIII. . . . . . . . . . . . . . . . . . . . . . . . . . 575

Agreement between the International Civil Aviation Organization and Canada regarding the Headquarters of the International Civil Aviation Organization, signed on 14 April 1951, 96 UNTS 155 . . . . . . . . . . . . . . . . . . . . . . . . . .35, 148 s 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Headquarters Agreement between the International Civil Aviation Organization and the Government of Canada, signed on 4 and 9 October 1990, 1669 UNTS 105 . . . . . . . . . . . . . . . 147, 148, 214, 415, 418, 419, 425, 426, 434, 472, 592, 593, 602, 732, 733, 736–40 Art 1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 738 Art 1(h). . . . . . . . . . . . . . . . . . . . . . . . . . 738 Art 1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Art 4(3). . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 4(4). . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 733 Art 12 . . . . . . . . . . . . . . . . . . . . . . . 736, 738 Art 13 . . . . . . . . . . . . . . . . . . . . . . . 736, 737 Art 14 . . . . . . . . . . . . . . . . . . . . . . . 736, 737 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 Art 19(1). . . . . . . . . . . . . . . . . . . . . . . . . 736 Art 19(2). . . . . . . . . . . . . . . . . . . . . . . . . 733 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 738 Art 20(b). . . . . . . . . . . . . . . . . . . . . . . . . 418 Art 20(c) . . . . . . . . . . . . . . . . . . . . . . . . . 425 Art 20(e) . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 21(1). . . . . . . . . . . . . . . . . . . . . . . . . 737 Art 23 . . . . . . . . . . . . . . . . . . . . . . . 736, 737 Art 24 . . . . . . . . . . . . . . . . . . . . . . . 415, 425 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . 472 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 Art 33 . . . . . . . . . . . . . . . . . . . . . . . 592, 593 Art 33(a) . . . . . . . . . . . . . . . . . . . . . . . . . 739

Belgium Exchange of Letters constituting an Agreement between the United Nations and Belgium relating to the Settlement of Claims filed against the United Nations in the Congo by Belgian Nationals, signed on 20 February 1965, 535 UNTS 199 . . . . 531, 541, 559, 568 para 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 531

Bosnia and Herzegovina Agreement on the Status of the United Nations Protection Force in Bosnia and Herzegovina, 15 May 1993, 1722 UNTS 77. . . . . . . . . 374 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374

Brazil Agreement between the Federative Republic of Brazil and the World Intellectual Property Organization on the Establishment of a Coordination Office of this Organization in Brazil, October 2009; not published in UNTS . . . . . . . . . . . . . . . . . . . . . . . . . . 819

Burundi Agreement between the United Nations and Burundi concerning the Status of the United Nations office in Burundi (BNUB SOMA),

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Chile Agreement between the Government of Chile and the United Nations Economic Commission for Latin America regulating Conditions for the Operation, in Chile, of the Headquarters of the Commission, signed on 16 February 1953, 314 UNTS 60 . . . . . . . . . . . . . . . . .246, 575 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575

China Agreement between the International Civil Aviation Organization and the Government of the People’s Republic of China regarding the Asia and Pacific Regional Sub-Office, signed on 27 June 2013 (not yet published in the UNTS) . . . . . . . . . . . . . . . . . . . . . 734 Agreement between the United Nations and the Government of the People’s Republic of China regarding the Headquarters of the Asian and Pacific Centre for Agricultural Engineering and Machinery (with Annex and Statute), signed on 19 November 2003, 2232 UNTS 141. . . . . . . . . . . . . . . . . . . 536

Congo Agreement between the United Nations and the Democratic Republic of the Congo on the Status of the United Nations Mission in the Democratic Republic of the Congo (MONUC SOFA), signed on 4 May 2000, 2106 UNTS 357. . . . 321, 354, 355, 449, 452 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 35 . . . . . . . . . . . . . . . . . . . . . . . . 354, 355 Agreement between the United Nations and the Republic of the Congo (Leopoldville) relating to the Legal Status, Facilities, Privileges and Immunities of the United Nations Organization in the Congo, signed

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on 27 November 1961, 414 UNTS 231 . . . . 246, 260, 262, 547, 558, 559 Art 10(b). . . . . . . . . . . . . . . . . . . . . . . . . 558 Art 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . 547 ss 33–37 . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 36 . . . . . . . . . . . . . . . . . . . . . . . . 260, 262

Cyprus Exchange of Letters constituting an Agreement concerning the Status of the United Nations Peace-Keeping Force in Cyprus (United Nations—Republic of Cyprus), signed on 31 March 1964, 492 UNTS 57 . . . . . . . . . . . . . 246, 260, 262, 449 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 ss 29–31 . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

Denmark Agreement between the United Nations and the Government of Denmark relating to the Headquarters and other Offices in Copenhagen of the United Nations Office for Project Services (with Exchange of Notes) (UNOPS Headquarters Agreement), signed on 13 December 2007, 2486 UNTS 89 . . . . . . . . . . . . . . . . . 319, 324, 363 Art VIII(c). . . . . . . . . . . . . . . . . . . . . . . . 363 Art XIII. . . . . . . . . . . . . . . . . . . . . . . . . . 319 Art XV . . . . . . . . . . . . . . . . . . . . . . . . . . 324

Dominican Republic Agreement between the United Nations and the Government of the Dominican Republic regarding the Establishment in Santo Domingo of the Headquarters of the United Nations International Research and Training Institute for the Advancement of Women, signed on 31 March 1981, 1256 UNTS 6 . . . . . . . . . . . . . . . . . . . . . . . . . 537 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . 537

Ecuador Agreement between the United Nations Development Programme and the Government of Ecuador concerning Assistance by UNDP to the Government of Ecuador, signed on 8 March 1989, 1525 UNTS 131. . . . . . . . . . . . . . . . . . . 654 Art IX(1). . . . . . . . . . . . . . . . . . . . . . . . . 656

Egypt Agreement between the World Health Organization and the Government of Egypt for the Purposes of Determining the

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Privileges, Immunities and Facilities to be Granted in Egypt by the Government to the Organization, to the Representatives of Its Members and to Its Experts and Officials, signed on 25 March 1951, 223 UNTS 88 . . . . . . . . . . . . . . . . . . . . . . . . 148 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Exchange of Letters constituting an agreement concerning the Status of the United Nations Emergency Force in Egypt (United Nations-Egypt), signed on 8 February 1957, 260 UNTS 61 . . . 246, 258, 262, 449, 558, 576, 656, 859 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 29 . . . . . . . . . . . . . . . . . . . . . . . . 246, 258 s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 s 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

Ethiopia Agreement between the United Nations and Ethiopia regarding the Headquarters of the United Nations Economic Commission for Africa, signed on 18 June 1958, 317 UNTS 102 . . . . . . . . . . . . . . . . 246, 259, 575 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Agreement between Ethiopia and the United Nations concerning the Status of the United Nations Mission in Ethiopia, signed on 23 March 2001, 2141 UNTS 34 . . . . . . . . . 557 Art VII, paras 54, 55 . . . . . . . . . . . . . . . . 557 Agreement between the United Nations and Ethiopia concerning the Status of the United Nations Mission in Ethiopia and Eritrea, signed on 23 March 2001, (2001) UNJYB 5 . . . . . . . . . . . . . . . . . . . . .538, 562 Art VII, para 54. . . . . . . . . . . . . . . . 538, 562

France Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory, signed on 2 July 1954, 357 UNTS 3 . . . . . 59, 147, 211, 213, 308, 403, 415, 419, 421, 425, 426, 429, 434, 472, 592, 601, 744 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Art 6(3). . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472

Art 17(1)(a) . . . . . . . . . . . . . . . . . . . . . . . Art 17(2). . . . . . . . . . . . . . . . . . . . . . . . . Art 17(3). . . . . . . . . . . . . . . . . . . . . . . . . Art 19(1). . . . . . . . . . . . . . . . . . . . . . . . . Art 19(3). . . . . . . . . . . . . . . . . . . . . . . . . Art 19(d). . . . . . . . . . . . . . . . . . . . . . . . . Art 22(a) . . . . . . . . . . . . . . . . . . . . . . . . . Art 22(b). . . . . . . . . . . . . . . . . . . . . . . . . Art 22(f) . . . . . . . . . . . . . . . . . . . . . . . . . Art 23(1). . . . . . . . . . . . . . . . . . . . . . . . . Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . .

211 213 213 426 429 419 403 415 421 425 434 592 601

Germany Agreement between the United Nations and Germany concerning the Headquarters of the United Nations Volunteers Programme (UNV HQ), signed on 10 November 1995, 1895 UNTS 103 . . . . . . . . . . . . . . . . 362, 374, 376 Art 14(2). . . . . . . . . . . . . . . . . . . . . 374, 376 Art 25(1). . . . . . . . . . . . . . . . . . . . . . . . . 362

Greece Agreement between the Hellenic Republic and the United Nations regarding the Headquarters of the Coordinating Unit for the Mediterranean Action Plan, signed on 11 February 1982, 1261 UNTS 344 . . . . . . . . . . . . . . . . . . . . . . . 575 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Exchange of Letters constituting an agreement relating to the settlement of claims filed against the United Nations in the Congo by Greek nationals (UN–Greece Lump-sum Agreement), signed on 20 June 1966, 565 UNTS 3 . . . . . . .541, 559

Haiti Agreement between the United Nations and the Government of Haiti concerning the Status of the United Nations Operation in Haiti (MINUSTAH SOFA), signed on 9 July 2004, 2271 UNTS 235 . . . . . . . . . 321, 354, 355, 363, 367, 368, 449, 450, 452, 536, 553, 561, 576 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 ss 20–22 . . . . . . . . . . . . . . . . . . . . . . . . . 452 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 Art VI, s 26 . . . . . . . . . . . . . . . . . . . 450, 561 Art VIII . . . . . . . . . . . . . . . . . . . . . . . . . 536 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449

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Table of Treaties s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 35 . . . . . . . . . . . . . . . . . . . . . . . . 354, 355 s 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 536 Agreement between the United Nations and the Government of Haiti on the Status of the United Nations Mission in Haiti (UNMIH), signed on 15 March 1995, 1861 UNTS 268. . . . . . . . . . . . . . . . . . . 577 s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577

Hungary Agreement between the Government of the Republic of Hungary and the Food and Agriculture Organization of the United Nations (FAO) regarding the Establishment of the FAO Regional Office for Europe and Central Asia, the FAO Subregional Office for Central and Eastern Europe and the FAO Shared Services Center, 203/2007. (VII. 31.) Korm. rendelet. . . . . . . . . . . . . 266 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

India Agreement between the United Nations and the Government of the Republic of India regarding the Arrangements for the 2008 Internet Governance Forum Meeting, signed on 17 November 2008, 2550 UNTS 175 . . . . . . . . . . . . . . . . . . . . . . . 276 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Agreement between the United Nations and the Government of India regarding the Headquarters of the Asian and Pacific Centre for the Transfer of Technology, signed on 7 April 1994, 1774 UNTS 69 . . . . . . . . . 575 Art XIX. . . . . . . . . . . . . . . . . . . . . . . . . . 575

Iraq Agreement between the United Nations and the Government of the Republic of Iraq relating to the Headquarters of the United Nations Economic Commission for Western Asia, signed on 13 June 1979, 1144 UNTS 230. . . . . . . . . . . . 246, 259, 535 Art V . . . . . . . . . . . . . . . . . . . . . . . 246, 259 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 Art XII . . . . . . . . . . . . . . . . . . . . . . . . . . 535

Israel Exchange of Letters constituting an Agreement between Israel and the United Nations Relief and Works Agency for Palestine Refugees concerning Assistance to Palestine Refugees in the Gaza Strip (Israel and Beirut), signed on 9 November 1956, 280 UNTS 261. . . 658

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Exchange of Letters constituting a Provisional Agreement between the United Nations Relief and Works Agency for Palestine Refugees in the Near East and Israel concerning Assistance to Palestine Refugees (‘Comay-Michelmore Agreement’), signed on 14 June 1967, 620 UNTS 183 . . . . . . . 81

Italy 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, signed on 31 October 1950, 1409 UNTS 521 . . . . . . . . . . 6, 35–37, 40, 70, 110, 114, 115, 145, 147, 211, 213, 214, 397, 400, 410, 418, 419, 421, 422, 426, 427, 434, 469, 592, 601, 718, 726 Art I, s 1(h) . . . . . . . . . . . . . . . . . . . . . . . . 36 Art I, s 1(l) . . . . . . . . . . . . . . . . . . . . . . . . 35 Art I, s 1(m) . . . . . . . . . . . . . . . . . . . . . . . 40 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 s 6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 s 7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 s 7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art IV, ss 8, 9 . . . . . . . . . . . . . . . . . . . . . 145 Art VIII . . . . . . . . . . . . . . . . . . . . . . . . . 114 s 16 . . . . . . . . . . . . . . . . . . . . 110, 115, 726 s 20(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Art XIII. . . . . . . . . . . . . . . . . . 397, 400, 410 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 s 27(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 410 s 27(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 s 27(h) . . . . . . . . . . . . . . . . . . . . . . . . . . 419 s 27(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 s 27(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 s 28(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 427 s 29(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . 426 s 33(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 434 s 33(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 469 s 33(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 469 s 35 . . . . . . . . . . . . . . . . . . . . . . . . 469, 601 Agreement between the United Nations and the Food and Agriculture Organization of the United Nations on the one part and the Government of the Italian Republic on the other Part regarding the Headquarters for the World Food Programme, signed on 15 March 1991, 1773 UNTS 345 . . . . . . . . . . . . . . . . 202, 214, 536 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 s 18(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 214 s 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 536

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Agreement between the Government of the Italian Republic and the International Fund for Agricultural Development regarding the Provisional Headquarters of the Fund, 26 July 1978, Legge 23 maggio 1980, n. 289, in Gazzetta Ufficiale 3 luglio 1980 n. 181 suppl., . . . 146, 147, 149, 213, 828 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 s 4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 s 4(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 s 18(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Exchange of Letters constituting an agreement between the United Nations and Italy relating to the settlement of claims filed against the United Nations in the Congo by Italian nationals (UN–Italy Lump-sum Agreement), signed on 18 January 1967, 588 UNTS 197. . . . . . . . . . . . . 541, 559, 567

Japan Agreement between the United Nations and Japan on Privileges and Immunities of the United Nations, signed on 25 July 1952, 135 UNTS 306. . . . . . . . . . . . . . . . . . . . 258 Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Agreement between the United Nations and Japan regarding the Headquarters of the United Nations University, signed on 14 May 1976, 1009 UNTS 366. . . . .246, 575 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575

Jordan Exchange of Letters constituting an Agreement between the United Nations and the Hashemite Kingdom of Jordan concerning Arrangements for the Stationing in the Hashemite Kingdom of Jordan of a Subsidiary Organ of the United Nations under the Charge of a Special Representative of the Secretary-General, signed on 8 and 18 November 1958, 315 UNTS 125 . . . . . . . . . . . . . . . . . . . .246, 259

Kenya Agreement between the United Nations and the Republic of Kenya regarding the Headquarters of the United Nations Environment Programme (UNEP HQ), signed on 26 March 1975, 962 UNTS 89 . . . . . . 258, 350, 359, 374, 393 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 s 22(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 22(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 28(h) . . . . . . . . . . . . . . . . . . . . . . . . . . 350

s 29(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 374 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 s 38(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 359

Korea Exchange of Letters constituting an Agreement between the United Nations and Korea regarding Privileges and Immunities to be enjoyed by the United Nations in the Republic of Korea, signed on 21 September 1951, 104 UNTS 323 . . . . . . . . . . . . . . . 258

Lebanon Exchange of Letters constituting an Agreement between the United Nations and Lebanon concerning the Status of the United Nations Observation Group in Lebanon, 13 June 1958, 303 UNTS 272 . . . . .246, 258 Agreement between the Government of Lebanon and the International Labour Organization concerning the establishment of an Office of the Organisation at Beirut, signed on 14 May 1966, 600 UNTS 70 . . . . . . . . . . . . . . . . . . . . . . . . 701 Agreement between the United Nations and the Government of Lebanon concerning the Headquarters of the Economic and Social Commission for Western Asia (ESCWA HQ), signed on 27 August 1997, 1988 UNTS 339 . . . . . . . . . . .362, 374 Art 13(2). . . . . . . . . . . . . . . . . . . . . . . . . 374 Art 24(1). . . . . . . . . . . . . . . . . . . . . . . . . 362 Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, 22 January and 6 February 2007, 2461 UNTS 280 . . . . . . . . . . . . . . . . . . . . . . . 319 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

Libya Agreement between the Government of Libya and the United Nations concerning the Status of the United Nations Support Mission in Libya, signed on 10 January 2012, 2815 UNTS 1 . . . . . . . . . . . . . . . . 576 Art IV, para 4 . . . . . . . . . . . . . . . . . . . . . 552

Luxembourg Exchange of Letters constituting an Agreement relating to the Settlement of Claims filed against the United Nations in the Congo by Luxembourg Nationals (UN–Luxembourg Lump-sum Agreement), signed on 28 December 1966, 585 UNTS 147 . . . . 512, 541, 553, 559 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . 512

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Table of Treaties Mali Status of Forces Agreement between the United Nations and the Government of the Republic of Mali concerning the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA SOFA), signed on 1 July 2013, UNTS Reg. No. 51015 . . . . . . . . . . . . . . . 321, 354, 355, 385, 449, 450, 452 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 35 . . . . . . . . . . . . . . . . . . . . . . . . 354, 355 s 51(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 385

Mexico Agreement between the United Nations and the Government of Mexico regarding the Arrangements for the World Conference of International Women’s Year held at Mexico City, signed on 14 May 1975, 968 UNTS 115. . . . . . . . . . . . . . . . . . . . 656 Agreement relating to the Regional Office of the ICAO for North American and the Caribbean in Mexico City, signed on 20 December 1956, 497 UNTS 3 . . . . . . 739

Mozambique Agreement between the United Nations and the Government of Mozambique on the Status of the United Nations Operation in Mozambique, signed on 14 May 1993, 1722 UNTS 39. . . . . . . . . . . . . . . . . . . . 557 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . 557

Nepal Agreement between the Government of Nepal and the United Nations concerning the Status of the United Nations Mission in Nepal, signed on 5 December 2008 (UNMIN SOMA), 2557 UNTS 143 . . . 321, 351, 355, 374, 385, 449 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 ss 44–48 . . . . . . . . . . . . . . . . . . . . . . . . . 391 s 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

Netherlands Agreement between the Organisation for the Prohibition of Chemical Weapons and the Kingdom of the Netherlands concerning

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the Headquarters of the OPCW, signed on 22 May 1997, 2311 UNTS 91. . . . . . .873–83 Art 1(f) . . . . . . . . . . . . . . . . . . . . . . . . . . 875 Art 1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 1(k). . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 1(m) . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 1(n). . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 1(o). . . . . . . . . . . . . . . . . . . . . . . . . . 881 Art 1(r) . . . . . . . . . . . . . . . . . . . . . . . . . . 876 Art 1(t) . . . . . . . . . . . . . . . . . . . . . . . . . . 876 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 875 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . 875, 879 Art 4(1)–(4) . . . . . . . . . . . . . . . . . . . . . . 878 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 876 Art 5(1). . . . . . . . . . . . . . . . . . . . . . . . . . 875 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 7(1). . . . . . . . . . . . . . . . . . . . . . 875, 879 Art 7(2). . . . . . . . . . . . . . . . . . . . . . 876, 879 Art 8(1)–(3) . . . . . . . . . . . . . . . . . . . . . . 875 Art 9(1). . . . . . . . . . . . . . . . . . . . . . 875, 878 Art 9(2). . . . . . . . . . . . . . . . . . . . . . . . . . 875 Art 10(1)–(4). . . . . . . . . . . . . . . . . . . . . . 878 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 877 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 877 Art 14 . . . . . . . . . . . . . . . . . . . . . . . 880, 882 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 16(1). . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 17(1). . . . . . . . . . . . . . . . . . . . . . . . . 880 Art 17(1)(c)–(h). . . . . . . . . . . . . . . . . . . . 880 Art 17(2), (3) . . . . . . . . . . . . . . . . . . . . . 880 Art 18(1)(a), (b). . . . . . . . . . . . . . . . . . . . 881 Art 18(1)(d)–(g). . . . . . . . . . . . . . . . . . . . 882 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 879 Art 19(1). . . . . . . . . . . . . . . . . . . . . . . . . 880 Art 19(1)(b) . . . . . . . . . . . . . . . . . . . . . . 880 Art 22(1), (3) . . . . . . . . . . . . . . . . . . . . . 882 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 882 Art 24(1)–(4). . . . . . . . . . . . . . . . . . . . . . 882 Art 24(5), (6) . . . . . . . . . . . . . . . . . . . . . 883 Art 26(2). . . . . . . . . . . . . . . . . . . . . . . . . 883 Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (Final Provisions), signed on 29 July 1994, 1792 UNTS 351 . . . . . .80, 657 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657 Exchange of Letters recording an Agreement relating to Privileges and Immunities of Members of the International Court of Justice, the Registrar, Officials, the Registry, Assessors, the Agents and Counsel of the Parties and the Witnesses and Experts between the Kingdom of the Netherlands

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and the International Court of Justice, signed on 26 June 1946, 8 UNTS 61 . . . . . . . . . . . . . . . . . . 863–66, 869 Exchange of Notes constituting an Agreement between the Kingdom of the Netherlands and the International Court of Justice supplementing the Exchange of Notes on Privileges and Immunities of the International Court of Justice regarding Employment Opportunities in the Netherlands for Family Members of Officials and Members of the International Court of Justice, 18 and 19 February 2002, 2326 UNTS 89 . . . . . . . . 866 Separate Arrangement with respect to the Agreement between the Organisation for the Prohibition of Chemical Weapons and the Kingdom of the Netherlands Concerning the Headquarters of the OPCW, signed on 22 May 1997, 2311 UNTS 179. . . . .874, 882 Art 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 882 Art 3(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 882

Panama Agreement on Operational Assistance between the United Nations, the International Labour Organization, the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organization, the International Civil Aviation Organization, the World Health Organization, the International Telecommunication Union, the World Meteorological Organization, the International Atomic Energy Agency, the Universal Postal Union, and the Inter-Governmental Maritime Consultative Organization, and the Government of the Republic of Panama, signed on 26 March 1971, 774 UNTS 142 . . . . . . . 537 Art VI(6). . . . . . . . . . . . . . . . . . . . . . . . . 537

Peru Agreement between the International Civil Aviation Organization and the Government of Peru concerning Privileges, Immunities and Facilities granted to the International Civil Aviation Organization in Peruvian Territory, signed on 22 October 1948, 95 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . 739

Romania Basic Cooperation Agreement between the United Nations Children’s Fund and the Government of Romania, signed on 21 June 1991, 1686 UNTS 3 . . . . . . . . . 654

Rwanda Agreement between the United Nations and the Government of the Republic of Rwanda on the Status of the United Nations Assistance Mission for Rwanda, signed on 5 November 1993, 1748 UNTS 3 . . . . . . . . . . . . . . . . . . . . . .654, 656 Memorandum of Understanding between the United Nations and the Republic of Rwanda to Regulate Matters of mutual concern relating to the Office in Rwanda of the International Tribunal for Rwanda signed on 3 June 1999, 2066 UNTS 5 . . . 457

Senegal Agreement between the Government of the Republic of Senegal and the United Nations Children’s Fund, signed on 18 March 1992, 1669 UNTS 291 . . . . . . 657 Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . 657

Sierra Leone Agreement between the United Nations and Sierra Leone concerning the Status of the United Nations Mission in Sierra Leone, signed on 4 August 2000, 2118 UNTS 190 . . . . . . . . . . . . . . . . 557, 567, 568 Art V, para 16 . . . . . . . . . . . . . . . . . . . . . 567 Art VII, para 54. . . . . . . . . . . . 557, 567, 568 Art VII, para 55. . . . . . . . . . . . . . . . . . . . 557 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (with Statute), 16 January 2002, 2178 UNTS 13. . . . . . . . . . . . . . . . . . . . 319 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

Singapore Agreement between the World Intellectual Property Organization and the Government of Singapore to Determine the Legal Status of the WIPO in Singapore, February 2005 (not published in UNTS). . . . . . . . . . . . . 819

Slovakia Poland Agreement between the United Nations Development Programme and the Government of Poland, signed on 30 July 1990, 1573 UNTS 27 . . . . . . . . . 654

Agreement between the United Nations (United Nations High Commissioner for Refugees) and the Government of Slovakia concerning the Legal Status, Immunities and Privileges of the Office of the United

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Table of Treaties Nations High Commissioner for Refugees and its Personnel in Slovakia, signed on 1 March 1994, 1769 UNTS 75 . . . . . . . . 656 Art XIII. . . . . . . . . . . . . . . . . . . . . . . . . . 656

Somalia Agreement between the United Nations and the Transitional Federal Government of Somalia concerning the Status of the UN Political Office for Somalia (UNPOS SOMA), signed on 24 January 2012, 2012 UNJYB 26 . . . . . . . . . . . . . . . 321, 354, 355, 374, 385, 449, 452, 544, 560, 562 Art VII . . . . . . . . . . . . . . . . . . . . . . . . . . 562 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 s 26 . . . . . . . . . . . . . . . . . . . . 321, 544, 560 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 33 . . . . . . . . . . . . . . . . . . . . . . . . 354, 355 s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 s 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 562

Spain Agreement between Spain and the World Tourism Organization concerning the Legal Status of that Organization in Spain, 1047 UNTS 85. . . . . . . 212, 413, 415, 416, 419, 427, 434, 435, 592, 851, 852 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852 Art 11(1). . . . . . . . . . . . . . . . . . . . . . . . . 212 Art 14(1). . . . . . . . . . . . . . . . . . . . . . . . . 427 Art 15(2). . . . . . . . . . . . . . . . . . . . . 413, 415 Art 16(1)(c) . . . . . . . . . . . . . . . . . . . . . . . 419 Art 17(1). . . . . . . . . . . . . . . . . . . . . . . . . 415 Art 18(1)(v). . . . . . . . . . . . . . . . . . . . . . . 416 Art 18(3). . . . . . . . . . . . . . . . . . . . . . . . . 435 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Art 37(d). . . . . . . . . . . . . . . . . . . . . . . . . 413

Sri Lanka Agreement between the International Labour Organization and Sri Lanka concerning the Establishment of an Organization in Colombo, signed on 21 March 1988, 1509 UNTS 245. . . . . . . . . . . . . . . . . . . 701 Art 2(1). . . . . . . . . . . . . . . . . . . . . . . . . . 701

Sudan Agreement between the United Nations and Sudan concerning the Status of the United Nations Mission in Sudan (with Supplement Arrangements), signed on 28 December 2005, 2351 UNTS 64 . . . . . . . . . . . . . . . . . . . . . . . . 557 Art VII, paras 54, 55 . . . . . . . . . . . . . . . . 557

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Switzerland Agreement between the Swiss Federal Council and the International Telecommunication Union Concerning the Legal Status of that Organization in Switzerland, 22 July 1971, 793 UNTS 319 . . . . . . . . . . . .146, 211, 213, 518, 592, 601, 788 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Art 10(1). . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 10(2). . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Agreement between the Swiss Federal Council and the World Intellectual Property Organization Determining the Legal Status of that Organization in Switzerland, 9 December 1970, Swiss Law Gazette AS 1971 293. . . . . . . . . . . . 37, 41, 146, 211, 213, 403, 410, 412, 419, 425, 819, 820 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . 146, 819 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819 Art 5(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819 Art 11(1). . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 11(2). . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Art 15 . . . . . . . . . . . . . . . . . . . 403, 410, 819 Art 16(a) . . . . . . . . . . . . . . . . . . . . . . . . . 425 Art 16(b). . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 16(f) . . . . . . . . . . . . . . . . . . . . . . . . . 412 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Agreement between the United Nations and Switzerland on the supply of Official Stamps to the European Office of the United Nations at Geneva, signed on 14 September 1949, 43 UNTS 327 . . . . . 262 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 Agreement between the International Bank for Reconstruction and Development and Switzerland on the Legal Status in Switzerland of the International Bank for Reconstruction and Development, signed on 29 June 1951, 216 UNTS 348 . . . . . . . . . . . . . . . . . . . .619, 757 Agreement between the Swiss Federal Council and the World Health Organization concerning the legal status of the World Health Organization and Arrangement for the execution of the said Agreement, signed on 23 December 1948 and 12 January

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1949, 26 UNTS 331 . . . . . . . . . 41, 110, 211, 212, 213, 592 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 41, 145 Art 4(2). . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 11(2). . . . . . . . . . . . . . . . . . . . . . . . . 212 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Agreement between the Swiss Federal Council and the World Meteorological Organization to govern the legal status of this Organization in Switzerland (WMO Headquarters Agreement), signed on 10 March 1955, 211 UNTS 277 . . . . . . . . . . . . . . . . 41, 145, 212, 213, 403, 412, 419, 434, 593 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 41, 145 Art 11(2). . . . . . . . . . . . . . . . . . . . . . . . . 212 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 14(c) . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Art 17(a) . . . . . . . . . . . . . . . . . . . . . . . . . 403 Art 17(b). . . . . . . . . . . . . . . . . . . . . . . . . 412 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 593 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Agreement between the Swiss Federal Council and the International Labour Organization concerning the Legal Status of the International Labour Organization in Switzerland (ILO Headquarters Agreement), signed on 11 March 1946, 15 UNTS 383 . . . . . . .41, 145, 179, 211–13, 403, 412, 419, 592, 601, 701, 705 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 41, 145 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Art 11(1). . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 11(2). . . . . . . . . . . . . . . . . . . . . . . . . 212 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Art 17(a) . . . . . . . . . . . . . . . . . . . . . . . . . 403 Art 17(b). . . . . . . . . . . . . . . . . . . . . . . . . 412 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 592 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Arrangement for the Execution of the Agreement between the Swiss Federal Council and the International Labour Organization concerning the Legal Status of the International Labour Organization in Switzerland, signed on 11 March 1946, 15 UNTS 397 . . . . . . . . . . . . . . . . .211, 412 Art 4(2). . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 9(d). . . . . . . . . . . . . . . . . . . . . . . . . . 412 Exchange of Letters constituting an Agreement supplementing the Interim Arrangement on Privileges and Immunities of the United

Nations concluded between the SecretaryGeneral of the United Nations and the Swiss Federal Council, signed on 20 January 1987, 1446 UNTS 342 . . . . . . . . . . . . . . 347 Interim Arrangement on Privileges and Immunities of the United Nations concluded between the Secretary-General of the United Nations and the Swiss Federal Council, signed on 11 June and 1 July 1946, 1 UNTS 163 . . . . . . . 6, 10, 145, 196, 246, 349, 350, 383, 535 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535 Communications du Conseil Fédéral Suisse concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail (League of Nations–Switzerland), signed on 18 September 1926, 7 LNOJ (1926) . . . . . . . . . . . . . . . . . . . . . 861 Exchange of Letters constituting an Agreement between the United Nations and Switzerland relating to the Settlement of Claims filed against the United Nations in the Congo by Swiss Nationals (UN–Switzerland Lump-sum Agreement), signed on 3 June 1966, 564 UNTS 193 . . . . . . . . . . . . . . . . . . . .541, 559

Sudan Agreement between the United Nations and the Government of Sudan concerning the Status of the United Nations Mission in Sudan, signed on 28 December 2005, 2351 UNTS 63. . . . . . . . . . . . . 557, 576, 577 Art VII . . . . . . . . . . . . . . . . . . . . . . . . . . 557 s 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577

Tanzania Agreement between the United Nations and the United Republic of Tanzania concerning the Headquarters of the International Residual Mechanism for Criminal Tribunals (MICT Tanzania HQ), signed 26 November 2013, UNTS Reg. No. 51602 . . . . . . . . . . . . . . . . 362, 373, 393 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 Art 26(3). . . . . . . . . . . . . . . . . . . . . . . . . 393 Art 29(2). . . . . . . . . . . . . . . . . . . . . . . . . 373

Thailand Agreement between the United Nations and the Government of Thailand relating to the Headquarters of the Economic Commission

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Table of Treaties for Asia and the Far East in Thailand, signed on 26 May 1954, 260 UNTS 35 . . . . . . . . . . . . . 246, 258, 351, 575 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575

Tunisia Agreement between the United Nations Industrial Development Organization and the Government of Tunisia concerning Arrangements to be made for the First Consultation on the Construction Industry [to be held at Tunis from 6 to 10 December 1993], signed on 10 December 1992, 1993 UNJYB 170 . . . . . . . . . . . . . . . . . . 593 Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . 593

Turkey Agreement between the United Nations and the Government of Turkey regarding Arrangements for the Ninth Session of the Commission on Human Settlements of the United Nations, signed on 20 June 1983, 1986 UNJYB 29 . . . . . . . . . . . . . . 537 Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . 537 Framework Agreement between the United Nations and the Republic of Turkey on Arrangements regarding Privileges and Immunities and certain other Matters concerning United Nations Conferences and Meetings held in Turkey, 23 February 2011, UNTS Reg. No. 48490 . . . . . . . . . . . . . . 276

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United States of America Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations (UN–US Headquarters Agreement), signed on 26 June 1947, 11 UNTS 11 . . . . . . . 6, 10, 19, 49, 67, 130, 136, 138, 145, 175, 257, 276, 281, 285, 286, 289, 293–96, 300, 356, 359, 375, 397, 428, 471, 536, 565, 575, 578, 657 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 s 7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 565 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . 136, 565 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 s 9(a) . . . . . . . . . . . . . . . . . . . . . . . 145, 375 s 9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 13(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 13(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 356 s 15 . . . . . . . . . . . . . . . . . 281, 285, 293–96, 300, 397, 428 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 s 26 . . . . . . . . . . . . . . . . . . . . . . . . 575, 657 Postal Agreement between the United States of America and the United Nations, 108 UNTS 231, amended by an Exchange of Notes, signed on 7 and 17 November 1952, 149 UNTS 414 . . . . . . . . . . . . . . . 262 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

United Kingdom

OTHER TREATIES

Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the InterGovernmental Maritime Consultative Organization regarding the Headquarters of the Organization, signed on 28 November 1968, 677 UNTS 3 . . . . 36, 40, 147, 148, 417, 592, 601, 799 Art 2(2). . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art 3(4). . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Arts 5–13 . . . . . . . . . . . . . . . . . . . . . . . . 799 Art 6(4). . . . . . . . . . . . . . . . . . . . . . 147, 148 Art 6(5). . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art 11(1). . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, signed on 9 February 1972, 834 UNTS 287 . . . 6, 67 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Agreement between the United Nations and the Food and Agriculture Organization of the United Nations, signed on 3 February 1947, entered into force on 14 December 1946, 1 UNTS 212. . . . . . . . . . . . . .519, 717 Agreement between the United Nations and the Food and Agriculture Organization for the admission of the FAO into the United Nations Joint Staff Pension Fund, signed on 2 and 9 August 1950, entered into force on 9 August 1950, 219 UNTS 388 . . . . . . . . . . . . . . . . . . . . . . . 599 Agreement between the United Nations and the International Bank for Reconstruction and Development, signed on 15 April 1948, entered into force on 15 November 1947, 16 UNTS 346 . . . . . . . . . . . . . . . . 518 Art X(4) . . . . . . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the International Bank for Reconstruction

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and Development (Acting for and on behalf of the International Finance Corporation) on the Relationship between the United Nations and the International Finance Corporation, approved by the Board of Governors of the International Bank for Reconstruction and Development and the Board of Governors of the International Finance Corporation on 31 January 1957 and by the General Assembly of the United Nations on 20 February 1957, entered into force on 20 February 1957, 265 UNTS 314 . . . . . . . . . . . . . . . . . . . . . . . 518 Art X(4) . . . . . . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the International Development Association, approved by the Board of Governors of the International Development Association on 24 February 1961 and by the General Assembly of the United Nations on 27 March 1961, entered into force on 27 March 1961, 394 UNTS 222 . . . . . . . 816 Agreement between the United Nations and the International Labour Organisation, signed on 19 December 1946, entered into force on 14 December 1946, 1 UNTS 186 . . . . . . . . . . . . . 519–21, 525, 700 para 6 . . . . . . . . . . . . . . . . . . . . . . . 521, 525 Agreement between the United Nations and the Inter-Governmental Maritime Consultative Organization, approved by the General Assembly of the United Nations on 18 November 1948 and by the Assembly of the Inter-Governmental Maritime Consultative Organization on 13 January 1959, entered into force on 13 January 1959, and Protocol concerning the entry into force of the said Agreement, signed on 17 February 1959, 324 UNTS 273 . . . . . 798 Art XII, para 12 . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the International Monetary Fund, approved by the General Assembly of the United Nations on 15 November 1947 and by the Board of Governors of the International Monetary Fund on 17 September 1947, entered into force on 15 November 1947, 16 UNTS 328 . . . . . . . . . . . . . . . . .518, 750 Art I(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 750 Art X(4) . . . . . . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the International Refugee Organization, approved by the General Council of the International Refugee Organization on 15 September 1948 and by the General Assembly of the United Nations on 18 November 1948, entered into force on 18 November 1948, 26 UNTS 300 . . . . . 518

Art XVII . . . . . . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the International Telecommunication Union approved by the Plenipotentiary Telecommunication Conference of the International Telecommunication Union on 4 September 1947 and by the General Assembly of the United Nations on 15 November 1947, and Protocol concerning the entry into force of the said Agreement, signed on 26 April 1949, 30 UNTS 316 . . . . 256, 261, 264, 518, 615, 788 Art XVI. . . . . . . . . . . . . . . . . . . . . . . . . . 256 Agreement between the United Nations and the United Nations Educational, Scientific and Cultural Organization, signed on 3 February 1947, entered into force on 14 December 1946, 1 UNTS 238 . . . . . . . . . . . . . . . . . . . .518, 742 Agreement between the United Nations and the Universal Postal Union, approved by the General Assembly of the United Nations on 15 November 1947, entered into force on 1 July 1948, 19 UNTS 219 . . . . . . . . . . . . . . . . . . . .518, 615 Agreement between the United Nations and the World Health Organization, approved by the General Assembly of the United Nations on 15 November 1947 and by the World Health Assembly on 10 July 1948, entered into force on 10 July 1948, 19 UNTS 193 . . . . . . . . . . . . .518, 615 Art XVII . . . . . . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the World Meteorological P Organization 123 UNTS . . . . . . . . . . . . . . . . . . . . . . .246, 518 Art XI, para 3 . . . . . . . . . . . . . . . . . . . . . 518 Agreement between the United Nations and the World Intellectual Property Organization, approved by the General Assembly of the World Intellectual Property Organization on 27 September 1974 and by the General Assembly of the United Nations on 17 December 1974, entered into force on 17 December 1974, 956 UNTS 405 . . . . . . . . . . . . . . . . . . . .518, 818 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 518 Agreement between UNRRA and the UN concerning the transfer to the United Nations of the residual assets and activities of the United Nations Relief and Rehabilitation Administration, signed on 27 September 1948, entered into force on 24 September 1948, 27 UNTS 349 . . . . . . 82 Agreement concerning the relationship between the United Nations and the International Seabed Authority, signed on

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Table of Treaties 14 March 1997, entered into force provisionally on 14 March 1997, 1967 UNTS 255 . . . . . . . . . . . . . . . . . . . . . . . 503 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 Agreement Establishing the African Development Bank, signed on 4 August 1963, as amended by Resolution 05–79 adopted by the Board of Governors on 17 May 1979, entered into force on 7 May 1982, 1276 UNTS 3 . . . . . . . . . . 756, 758–60, 763 Art XI, s 3 . . . . . . . . . . . . . . . . . . . . 759, 760 Art 50 . . . . . . . . . . . . . . . . . . . . . . . 756, 763 Art 52 . . . . . . . . . . . . . . . . . . . . . . . 759, 763 Agreement Establishing the Asian Development Bank, signed on 4 December 1965, entered into force on 22 August 1966, 571 UNTS 123 . . . . . . . . . . . . . . . . 759, 760, 763 Agreement Establishing the Inter-American Development Bank, signed on 8 April 1959, entered into force on 30 December 1959, 389 UNTS 69 . . . . . . . . . . . . . . . . . . . . 758 Agreement Establishing the International Fund for Agricultural Development, signed on 13 June 1976, entered into force on 30 November 1977, 1059 UNTS 191 . . . . 57, 523, 601, 825–31 Art 5, s 1(a) . . . . . . . . . . . . . . . . . . . . . . . 211 Art 6, s 8(c) . . . . . . . . . . . . . . . . . . . . . . . 829 Art 6, s 9. . . . . . . . . . . . . . . . . . . . . . . . . 826 Art 8, s 1. . . . . . . . . . . . . . . . . . . . . . . . . 826 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . 57, 523 Art 10, s 2(a) . . . . . . . . . . . . . . . . . . 827, 828 Art 10, s 2(b)(i) . . . . . . . . . . . . . . . . . . . . 827 Art 11(a) . . . . . . . . . . . . . . . . . . . . . . . . . 601 Agreement Establishing the World Trade Organization, signed on 15 April 1994, entered into force 1 January 1995, 33 ILM (1994) 13 . . . . . . . . . . . . . . . . . . . . . . 4 Art VIII(2) . . . . . . . . . . . . . . . . . . . . . . . . . 4 Agreement for the Establishment of a Provisional Maritime Consultative Council, adopted by the United Maritime Consultative Council on 30 October 1946, entered into force on 23 April 1947, 11 UNTS 107 . . . . . . . . . . . . . . . . . . . . 797 Agreement for the Leasing of Space Segment Capacity between the International Telecommunications Satellite Organization (INTELSAT) and the United Nations Organization, signed and entered into force on 16 August 1984, 1365 UNTS 307 . . . 270 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the

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Sea, signed and entered into force on 18 December 1997, 2000 UNTS 467 . . . . . . . . . . . . . . . . . . . .503, 512 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . 503, 512 Agreement on the Privileges and Immunities of the International Atomic Energy Agency, approved by the Board of Governors on 1 July 1959, entered into force on 29 July 1960, 374 UNTS 147 . . . . . 147, 211, 512, 519 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . 519 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Agreement on the Privileges and Immunities of the Organization of American States (OAS), signed on 15 May 1949, entered into force on 4 June 1951, 1438 UNTS 79 . . . . . . . . . . . . . . . . . . . . . . . 5, 67 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Articles of Agreement of the International Bank for Reconstruction and Development, signed and entered into force on 27 December 1945, 2 UNTS 134 . . . . . . . . . . . . 69, 101, 113, 143, 181, 188, 193, 209, 210, 236, 413, 420, 591, 601, 603, 755–76, 807 Art V, s 4(h) . . . . . . . . . . . . . . . . . . 757, 775 Art VII s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756 s 3 . . . . . . . . . . . . . . . . . . . . . . 69, 113, 143 s 4 . . . . . . . . . . . . . . . . . . . . . 143, 210, 766 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 s 6 . . . . . . . . . . . . . . . . . . . . . 193, 210, 768 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . 772, 776 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . 773, 774 s 8(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773 s 8(ii) . . . . . . . . . . . . . . . . . . . . . . . 419, 774 s 8(iii) . . . . . . . . . . . . . . . . . . . . . . . 523, 774 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769 s 9(a) . . . . . . . . . . . . . . . . . . . . . . . 236, 770 s 9(b) . . . . . . . . . . . . . . . .413, 770, 771, 772 Art IX . . . . . . . . . . . . . . . . . . . 601, 757, 775 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 758–66 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 s 8(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . 420 Articles of Agreement of the International Development Association, approved for submission to Governments by the Executive Directors of the International Bank for Reconstruction and Development on 26 January 1960, entered into force on 24 September 1960, 439 UNTS 249 . . . . . . . . . . . . . . . 209, 210, 591, 601, 815, 816 Art VI s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 816

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Art VII s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art VIII s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . 209, 210 Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Articles of Agreement of the International Finance Corporation, opened for Signature on 25 May 1955, entered into force on 20 July 1956, 264 UNTS 117 . . . . . . 208–10, 591, 601, 805–13 Art I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805 Art I(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 806 Art III s 5 . . . . . . . . . . . . . . . . . . . . . . . . . 209, 811 Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806 Art V s 4(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . 813 Art VI ss 2–9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 808 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807 s 3 . . . . . . . . . . . . . . . . . . . . . 591, 807, 809 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . 210, 810 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811 s 6 . . . . . . . . . . . . . . . . . . . . . 209, 210, 811 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 Art VIII . . . . . . . . . . . . . . . . . . . . . 601, 813 Annex s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Articles of Agreement of the International Monetary Fund, signed and entered into force on 27 December 1945, 2 UNTS 39 . . . . . . . . . .51, 143, 188, 193, 209, 210, 236, 398, 413, 419, 420, 427, 428, 523, 601, 749, 750, 752–54, 756, 758–61, 763–65, 773, 775 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 s 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 753 Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Art VII s 8(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . 420 Art IX . . . . . . . . . . . . . . . .398, 601, 749, 752 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . 143, 761 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . 143, 210 s 6 . . . . . . . . . . . . . . . . . .193, 209, 210, 750 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . 427, 523 s 8(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . 419

s 9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 s 9(b) . . . . . . . . . . . . . . . . . . . 413, 750, 753 Art XIII s 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Art XVIII . . . . . . . . . . . . . . . . . . . . 761, 776 Art XXIX . . . . . . . . . . . . . . . . . . . . 601, 752 Basic Agreement between the World Health Organization and the Government of the Democratic Republic of East Timor for the Establishment of technical advisory cooperation relations, signed and entered into force on 20 May 2002, 2189 UNTS 357 . . . . . . . . . . . . . . . . . . . .102, 180 Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as revised at Stockholm on 14 July 1967, entered into force on 29 January 1970, 828 UNTS 221 . . . . . . . . . . . . . . . . . . . . . . . 818 Charter of the Organization of American States, signed on 30 April 1948, entered into force on 13 December 1951, 119 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Art 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Charter of the United Nations (UN Charter), signed on 26 June 1945, entered into force on 24 October 1945 . . . . . 3, 5, 7, 9, 10, 13, 15, 16, 32, 49, 55, 63, 66, 87, 88, 126, 161, 195, 220, 226, 245, 251, 287, 294, 301, 314, 315, 318, 326, 329, 357, 358, 440, 453, 507, 530, 534, 552, 585, 599, 750, 755, 758, 819, 859, 863, 871 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 Art 2(4). . . . . . . . . . . . . . . . . . . . . . . . . . 131 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 570 Art 18(2). . . . . . . . . . . . . . . . . . . . . . . . . 651 Art 18(3). . . . . . . . . . . . . . . . . . . . . . . . . 651 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 649 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 Art 23(3). . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 25 . . . . . . . . . . . . . . . . . . . . . . . 131, 158 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 580 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Chap VII. . . . . . . . . . . . 78, 88, 158, 533, 546 Art 57 . . . . . . . . . . . 16, 29, 32, 33, 600, 615, 665, 673, 690, 691, 717, 750, 755, 816 Art 57(2). . . . . . . . . . . . . . . . . . . . . . . . . 397 Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 63 . . . . . . . . . . . 16, 29, 32, 33, 615, 665, 673, 690, 691, 825 Art 63(1). . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 63(2). . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 64(1). . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 96 . . . . . . . . . . . . . . . 572, 573, 575, 577, 583–86, 599, 600, 604

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Table of Treaties Art 96(1). . . . . . . . . . . . . . . . . . . . . . . . . 585 Art 96(2). . . . . . . . . . . . . .470, 585, 602, 605 Art 97 . . . . . . . . . . . . . 95, 316, 318, 530, 633 Art 100 . . . 130, 162, 315, 326, 329, 355, 358 Art 100(1). . . . . . . . . . . . . . . . . . . . . . . . 354 Art 100(2). . . . . . . . . . . . . . . . . . . . . . . . 357 Art 101 . . . . . . . . . . 315, 316, 318, 347, 354, 355, 357, 358, 530, 536, 539, 561 Art 101(1). . . . . . . . . . . . . . . . . . . . . . . . 318 Art 102 . . . . . . . . . . . . . . . . . . . . . . 102, 638 Art 103 . . . . . . . . . . . . . 77, 88, 131, 134, 141 Art 104 . . . . . . . . . . . . . . 4, 9, 15, 49, 50, 88, 130, 202, 402, 436, 488, 491, 499, 543, 634, 654, 660, 743 Art 105 . . . . . . 5, 7, 9, 10, 69, 84, 88, 90, 92, 125, 131, 134, 141, 195, 202, 220, 221, 223, 224, 226, 229, 232, 235, 236, 240, 245, 256, 257, 276, 277, 287, 294, 300, 310, 314, 333, 340, 342, 358, 402, 410, 436, 488, 491, 492, 495, 496, 497, 499, 507, 530, 534, 543, 572, 629, 633, 634, 638, 640, 644, 646, 647, 654, 660, 701, 743, 758, 819, 827, 859, 863, 871 Art 105(1). . . . . . . . . . . . . . 3, 4, 7, 8, 15, 63, 65, 68, 69, 195, 277, 284, 495, 530, 647 Art 105(2). . . . . . . . . . . . 7, 8, 195, 277, 296, 301, 314, 402, 440, 530 Art 105(3). . . . . . . . . . . 7, 9, 11, 69, 88, 530, 532, 534, 585 Art 109 . . . . . . . . . . . . . . . . . . . . . . . . . . 693 Constitution and Convention of the International Telecommunication Union (with annexes and optional protocol), signed on 22 December 1992, entered into force on 1 July 1994, 1825 UNTS 331 . . . . . . . . . . . . . . . . 601, 788, 789 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 789 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . 788 Constitution of the Food and Agriculture Organization of the United Nations, signed and entered into force on 16 October 1945, 145 BSP 910, . . . . . . . . . . . . 44, 114, 601, 715–17, 848 Art II(11) . . . . . . . . . . . . . . . . . . . . . . . . 848 Art VIII(4) . . . . . . . . . . . . . . . . . . . . . . . 717 Art XIII. . . . . . . . . . . . . . . . . . . . . . . . . . 716 Art XV . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art XVI(1) . . . . . . . . . . . . . . . . . . . . . . . 717 Art XVI(2) . . . . . . . . . . . . . . . . 44, 601, 717 Art XVII . . . . . . . . . . . . . . . . . . . . . . . . . 601

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Art XXI. . . . . . . . . . . . . . . . . . . . . . . . . . 715 Constitution of the International Labour Organisation and Instrument for the Amendment of the said Constitution, adopted by the International Labour Conference on 9 October 1946, entered into force on 20 April 1948, 15 UNTS 35 . . . . . . . . . . .15, 59, 108, 182, 184, 402, 601, 700, 701, 705–12 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709 Art 3(1). . . . . . . . . . . . . . . . . . . . . . . . . . 705 Art 3(5). . . . . . . . . . . . . . . . . . . . . . . . . . 705 Art 4(1). . . . . . . . . . . . . . . . . . . . . . . . . . 707 Art 4(3). . . . . . . . . . . . . . . . . . . . . . . . . . 709 Art 5(1). . . . . . . . . . . . . . . . . . . . . . . . . . 710 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 712 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 26 . . . . . . . . . . . . . . . . . . . . . . . 711, 712 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 712 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . 706 Art 39 . . . . . . . . . . . . . . . . . . . . 59, 108, 700 Art 40 . . . . . . . . . . . . . . 601, 700, 701, 707–9 Art 40(1). . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 40(2). . . . . . . . . . . . . . . . . . . . . . . . . 402 Constitution of the United Nations Educational, Scientific and Cultural Organization, signed on 16 November 1945, entered into force on 4 November 1946, 4 UNTS 275 . . . . 402, 601, 741–43 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 741 Art I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . 742 Art V(b) . . . . . . . . . . . . . . . . . . . . . . . . . 743 Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . 743 Art XII . . . . . . . . . . . . . . . . . . 402, 601, 743 Art XIV(2) . . . . . . . . . . . . . . . . . . . . . . . 601 Art XV(3) . . . . . . . . . . . . . . . . . . . . . . . . 742 Constitution of the United Nations Industrial Development Organization, adopted by the United Nations Conference on the Establishment of the United Nations Industrial Development Organization as a Specialized Agency on 8 April 1979, entered into force on 21 June 1985, 1401 UNTS 3 . . . . .523, 601, 678, 834–36, 839–43 Art 11(3). . . . . . . . . . . . . . . . . . . . . . . . . 839 Art 11(5). . . . . . . . . . . . . . . . . . . . . . . . . 840 Art 21 . . . . . . . . . . . . . . . .523, 601, 835, 843 Art 21(1). . . . . . . . . . . . . . . . . . . . . . . . . 835 Art 21(2). . . . . . . . . . . . . . . . . . . . . . . . . 835 Art 21(2)(a) . . . . . . . . . . . . . . . . . . . 835, 836 Art 21(2)(b) . . . . . . . . . . . . . . . . . . 678, 835 Art 21(2)(c) . . . . . . . . . . . . . . . . . . . . . . . 836 Art 22 . . . . . . . . . . . . . . . . . . . . . . . 601, 836

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Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . 834 Constitution of the Universal Postal Union, signed on 10 July 1964, entered into force on 1 January 1966, 611 UNTS 62 . . . . . . . . . . . . . . . . . . . . . .59, 601 Constitution of the World Health Organization, signed on 22 July 1946, entered into force on 7 April 1948, 14 UNTS 185 . . . . . . . . . . . 4, 402, 601, 778–83 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778 Art 8 . . . . . . . . . . . . . . . . . . . . 778, 779, 782 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . 780 Art 47 . . . . . . . . . . . . . . . . . . . 778, 779, 783 Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . 778 Art 67 . . . . . . . . . . . . . . . . . . . . . . . 601, 778 Art 67(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Art 67(b). . . . . . . . . . . . . . . . . . . . . 402, 781 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Constitution of the World Meteorological Organization, signed on 11 October 1947, entered into force on 23 March 1950, 77 UNTS 143 . . . . . . . . . 402, 523, 601 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Art 27(c) . . . . . . . . . . . . . . . . . . . . . . . . . 523 Art 28(b)(ii) . . . . . . . . . . . . . . . . . . . . . . 402 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 10 December 1984, entered into force on 26 June 1987, 1465 UNTS 85 . . . . . . . . . . . . . . . . . . . . . . . . 582 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . 582 Convention between Canada and France concerning the Rights of Nationals and Commercial and Shipping Matters, signed on 12 May 1933, entered into force on 10 November 1936, 253 UNTS 283 . . . . 573 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Convention Establishing the World Intellectual Property Organization signed at Stockholm on 14 July 1967, entered into force on 26 April 1970 (WIPO Convention), 828 UNTS 3, as amended on 28 September 1979 . . . . . . . . 817–19, 823 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 4(iii) . . . . . . . . . . . . . . . . . . . . . . . . . 818 Arts 6–9 . . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 10(1). . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 12(1)–(3). . . . . . . . . . . . . . . . . . . . . . 819 Convention for the Establishment of a European Space Agency, signed on 30 May 1975, entered into force on 30 October 1980, 1297 UNTS 161 . . . .68, 95

Art XV(2) . . . . . . . . . . . . . . . . . . . . . . . . . 95 Annex I Art IV(1a). . . . . . . . . . . . . . . . . . . 95 Annex I Art IV(1)(b) . . . . . . . . . . . . . . . . . 68 Convention on International Civil Aviation (Chicago Convention), signed on 7 December 1944, entered into force on 4 April 1947, 15 UNTS 295 . . . 523, 731–33, 737, 739, 740 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 733 Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . 732 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . 732 Art 51 . . . . . . . . . . . . . . . . . . . . . . . 732, 736 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . 736 Art 60 . . . . . . . . . . . . . . . . . . . 523, 739, 740 Convention on the Inter-Governmental Maritime Consultative Organization (IMCO Convention), signed on 6 March 1948, entered into force on 17 March 1958, 289 UNTS 3, as amended by IMCO Resolution A.358(IX) on 14 November 1975 (changing the name of the Organization to International Maritime Organization, IMO Convention) . . . . . . . . . . . . . 601, 797–99 Art 1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 58(a) . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947, entered into force on 2 December 1948, 33 UNTS 261 . . . . . . . . . . .5, 18–21, 25–28, 30, 31, 33, 34, 36, 37, 42, 45, 46, 58, 60, 67, 68, 71, 77, 79, 99–105, 108, 109, 112–14, 147, 180, 188, 207, 208, 210, 214, 215, 224, 236, 239, 266, 267, 269, 271, 290, 303, 305, 307, 310, 327, 345, 348, 350, 351, 357, 363, 371, 395–99, 401, 407, 411, 423, 426–29, 434, 467, 472, 473, 511, 516, 520, 592, 601, 610–12, 625, 660–62, 664, 666, 676, 677, 684, 685, 702, 703, 713, 718–20, 729, 734, 738, 740, 743–45, 754, 774, 779, 781, 784,

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Table of Treaties 789, 799–803, 817, 819–21, 823, 828, 831, 833, 836, 837, 843, 847, 851, 852, 875 Art I . . . . . . . . 18, 20, 25–27, 30, 31, 34, 45, 46, 104, 117, 118, 119, 121, 144, 208, 305, 613, 615, 664, 672, 674, 690, 706, 726, 733, 734, 737, 835 s 1 . . . . . . . . . 18, 25–27, 30, 34, 35, 38, 46, 104, 144, 208, 305, 613, 664, 674, 690, 706, 726, 737 s 1(i) . . . . . . . . . . . . . . . . . . . . 18, 26, 31, 46 s 1(ii) . . . . . . . . . . . . . . . . . . . . . . 26, 28, 32 s 1(ii)(a)–(i) . . . . . . . . . . . . . . . . . . . . . . . 615 s 1(ii)(j). . . . . . . . . . . . . . . . . . . . . . . 33, 674 s 1(iii) . . . . . . . . . . . . . . . . . . 26, 28, 34, 613 s 1(iv) . . . . . . . . . . . . . . . .27, 35–37, 46, 208 s 1(v) . . . . . . . . . . . . . 26, 30, 38–40, 46, 737 s 1(vi) . . . . . . . . . . . . . . . . . . 26, 40, 46, 706 s 1(vii) . . . . . . . . . . . . 26, 30, 41–43, 46, 672 s 1(j)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . 305 s 2 . . . . . . . . . . . . . . . 25–28, 34, 43, 45, 77, 105, 107, 108, 111, 113, 117, 118, 144, 208, 613, 690, 706, 726, 737 Art II . . . . . . . . 18, 20, 30, 31, 684, 700, 807 s 3 . . . . . . . . . . . . . . . . . 35, 58, 59, 60, 108, 109, 684, 700, 807 s 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 684 Art III . . . . . . . . . . . . . 18, 20, 30, 31, 35, 36, 37, 99, 141, 235, 236, 591, 684, 726, 768, 769, 807, 810, 811, 852, 876 s 4 . . . . . . . . . 35, 37, 67, 69, 79, 84, 94, 99, 101, 104, 105, 109, 110, 112, 113, 115, 116, 118, 120, 121, 143, 144, 151, 208, 591, 726, 758, 776, 807, 876 s 5 . . . . . . . . . . . 35, 36, 107, 112, 116, 125, 126, 141–44, 147, 149–51, 153, 208, 209, 591, 766, 810, 811, 876 s 6 . . . . . . . . . . . . . . . 35, 111, 159, 179–82, 187, 270, 767, 811 s 7 . . . . . . . . . . . 35, 205, 206, 208–10, 212, 214–16, 684, 768 s 7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 s 7(b) . . . . . . . . . . . . . . . . . .205, 207–9, 212 s 8 . . . . . . . . . . .205, 206, 208, 213–15, 216, 609, 618, 661, 678, 684, 720, 751, 756, 806, 837 s 9 . . . . . . . 35, 235, 238, 266, 769, 811, 852 s 9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 s 9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 s 9(c) . . . . . . . . . . . . . . . . . . . 239, 240, 267 s 10 . . . . . . . . . . . . . . . . . 35, 206, 235, 240, 266, 268, 769, 811 Art IV . . . . . . . . . . . . . . . . 18, 20, 30, 31, 38, 268, 723, 734, 776, 787, 789, 790, 802, 812, 831, 838 s 11 . . . . . . . . . . . . . 206, 265, 266, 268–71, 723, 734, 787, 789–91, 802, 831

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s 12 . . . . . . . . . . . . 265, 266, 268, 270, 304, 723, 734, 735, 787, 790, 802, 831, 838 Art V . . . . . . . . 18, 20, 30, 31, 38, 180, 279, 303–6, 704–7, 709, 721, 736, 737, 746, 773, 780, 781, 783, 812, 849, 850 ss 13–17 . . . . . . . . . . . . . . . . . 303, 304, 471, 706, 737, 746, 780 s 13 . . . . . . . . . . . . . 38, 279, 305, 306, 310, 409, 705, 706, 780 s 13(a). . . . . . . . . . . . . . . .283, 306, 307, 309 s 13(b) . . . . . . . . . . . . . . . . . . 284, 307, 308 s 13(c). . . . . . . . . . . . . . . . . . . . . 286, 704–6 s 13(d) . . . . . . . . . . . . . . . . . . 286, 290, 471 s 13(e). . . . . . . . . . . . . . . . . . . . . . . 205, 206 s 13(f) . . . . . . . . . . . . . . . . . . . . . . . 306, 309 s 13(g) . . . . . . . . . . . . . . . . . . . . . . . . . . 310 s 14 . . . . . . . . . . . . . . . . . . . . 309, 310, 706 s 15 . . . . . . . . . . . . . . . . . . . . . . . . 310, 706 s 16 . . . . . . . . . . . . . . 26, 214, 721, 746, 780 s 17 . . . . . . . . . . . . . . . . . . .309, 310, 706–9 Art VI . . . . . . . . . . . . . . . 18, 20, 30, 31, 363, 395, 401, 424, 468, 516, 525, 547, 615, 709, 711, 723, 724, 734, 735, 738, 747, 748, 750, 753, 758, 772, 773, 779, 781, 784, 800, 802, 808, 812, 820, 821, 823, 828, 829, 831, 837, 839, 854 ss 18–23 . . . . . . . . . . . . . 395, 468, 471, 473, 516, 525, 547, 615, 618, 735, 747, 772, 773, 800, 820, 828 s 18 . . . . . . . . . . . . . . . . 206, 364, 395, 516, 609, 618, 661, 678, 720, 723, 750, 751, 756, 771, 806, 837 s 18(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 364 s 18(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 364 s 18(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 364 s 18(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 367 s 18(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 363 s 18(f) . . . . . . . . . . . . . . . . . . . . . . . . 364–66 s 18(g) . . . . . . . . . . . . . . . . . . . . . . . 367–70 s 19 . . . . . . . . . 42, 370, 371, 399, 401, 402, 426, 429, 433, 725, 734, 735, 771, 784 s 19(a). . . . . . . . . . . . . . . 408, 410, 430, 434, 436, 614, 773, 808, 812 s 19(b) . . . . . . . . . . . . . . 345, 412, 413, 419, 429, 750, 753, 771, 774 s 19(c). . . . . 286, 418, 428, 471, 772–74, 812 s 19(d) . . . . . . . 205, 206, 363, 421, 773, 812 s 19(e). . . . . . . . . . . . 420, 421, 428, 773, 812 s 19(f) . . . . . . . . . . . . . . . . . . . . . . . 421, 750 s 20 . . . . . . . . . . 42, 400, 402, 424–26, 429, 433, 725, 734, 735, 774, 800 s 21 . . . . . . . . . . 41–43, 400, 426, 427, 430, 433, 471, 472, 525, 623, 709, 721, 724, 725, 734, 735, 747, 779, 784, 820, 828, 837, 840, 850

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s 22 . . . . . . . . . . . . . . . . 214, 280, 401, 429, 469, 589, 609, 615, 618, 661, 678, 711, 720, 725, 729, 735, 748, 751, 756, 773, 802, 806, 812, 823, 829, 831, 839 s 22(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 363 s 23 . . . . . . . . . . . . 206, 433, 434, 468, 469, 609, 618, 661, 678, 720, 725, 748, 751, 756, 806, 829, 837, 839 Art VII . . . . . . . . . . . 18, 19, 21, 30–32, 305, 306, 309, 357, 467, 468, 601, 666, 704, 721, 746, 779, 781, 783, 853 ss 24–28 . . . . . . . . . . . . . . . . . . . . . . . . . 423 s 24 . . . . . . . . . . . . . . 19, 32, 120, 137, 147, 206, 309, 357–59, 467, 468, 472, 601, 609, 618, 661, 666, 678, 720, 746, 751, 756, 806, 837 s 25 . . . . . . . . . . . . . . 19, 20, 305, 309, 357, 358, 467, 471–73, 704, 705, 721, 745, 746, 783, 849, 850, 853 s 25(1) . . . . . . . . . . 305, 306, 704, 721, 746, 780, 783, 849, 853 s 25(2)(i) . . . . . . . . . . . . . 305, 306, 704, 721, 746, 780, 783, 849, 853 Art VIII . . . . . . . . . . . . . . 18, 21, 30, 31, 38, 395, 503, 511, 512, 515, 516, 520, 521, 523, 526, 533, 534, 536, 723, 745 ss 26–30 . . . . . . . . . . . . . . . . . 503, 511, 515 s 26 . . . . . . . . . . . . . . . . . . . . . . . . 515, 520 s 27 . . . . . . . . . . . . . . . . . . . . . . . . 206, 515 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515 s 29 . . . . . . 84, 423, 523, 524, 533, 534, 536 s 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 399 s 30 . . . . . . . . . . . . . . . . . .41, 515, 525, 733 Art IX . . . . . . . . . . . . . . 18, 30–32, 468, 540, 589–94, 600, 601, 604, 605, 618, 751, 775, 836, 840 s 31 . . . . . . . . . . . . . 114–16, 120, 151, 399, 432, 515, 532, 540, 589–94, 596, 600, 609, 618, 661, 678, 720, 751, 756, 775, 806, 837 s 31(a). . . . . 32, 151, 411, 432, 590, 593, 595 s 31(b) . . . . . . . . . . . . . . . . . . 432, 590, 596 s 32 . . . . . . . . . . . . . . 32, 71, 115, 151, 206, 432, 467, 468, 540, 581, 582, 589, 599–605, 609, 617, 618, 661, 678, 720, 751, 756, 775, 806, 836, 837, 840 s 32(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 836 Art X . . . . . . . . 18, 21, 30–32, 34, 468, 603, 609–16, 620, 624, 625, 661, 668, 675, 677, 718, 743, 752, 771, 799, 820, 828, 836, 847, 851 ss 33–40 . . . . . . . . . 468, 609, 612, 675, 677, 718, 743, 799, 820, 828 s 33 . . . . . . . . . . . . . . . . . . . . . . 18, 34, 613 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 s 35 . . . . . . . . . . . 30, 33, 615, 616, 836, 847

s 36 . . . . . . . . . . . 30, 34, 613, 615–17, 620, 661, 673, 677, 686, 836, 837, 847 s 37 . . . . . . . . . . . . . . . 31, 34, 45, 208, 613, 614, 617–19, 624, 661, 668, 674–78, 680, 720, 836, 837 s 38 . . . . . . . . . . 34, 613, 617, 619, 620, 721 s 39 . . . . . . . . . . . . . . 30, 39, 104, 114, 400, 427, 603, 620–22, 686, 743, 799, 820, 828, 851 s 40 . . . . . . . . . . . . . . 30, 143, 612, 622–24, 743, 751, 752 Art XI . . . . . . . . . . . . . . . 21, 30–32, 34, 604, 610, 619, 659, 660, 662–68, 674–77, 681, 682, 684, 685, 688, 695, 721, 789, 800, 820 ss 41–49 . . . . . . . . . . . . . . . . . 604, 610, 620, 659, 660, 721 s 41 . . . . . . . . . . . . . . . . . . 663–69, 671–79, 682, 683, 688, 694 s 42 . . . . . . . . . . . . . . . . . 34, 609, 618, 661, 664, 668–73, 679–81, 688, 693, 694, 720, 751, 756, 806, 837 s 43 . . . . . . . . . . . . . . . 26, 34, 45, 206, 619, 671–76, 678–83, 688, 715, 721, 789, 800, 820 s 44 . . . . . . . . . . . . . . . . . . . . . 26, 206, 619, 664, 665, 667, 668, 674–79 s 45 . . . . . . . . . . . . . . . . . 34, 609, 661, 667, 672, 678–82, 720, 751, 756, 806, 837 s 46 . . . . . . . . . . . . 44, 45, 666, 675, 682–85 s 47 . . . . . . . . . . . . . . 26, 45, 206, 620, 647, 672, 674, 686, 690, 691 s 47(1) . . . . . . . . . 45, 620, 660, 686–88, 692 s 47(2) . . . . . . . . . 45, 660, 674, 686, 688–90 s 47(3) . . . . . . . . . . . 660, 674, 686, 690, 691 s 47(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 691 s 48 . . . . . . . . . 206, 620, 686, 687, 692, 693 s 49 . . . . . 663, 669, 670, 680, 693, 694, 695 Annex I (ILO) . . . . . . . . . . . 39, 42, 524, 616, 668, 675, 677, 699–714, 800, 817, 820, 821, 829, 848 Annex II (FAO). . . . . . . . . . . . . 42, 524, 616, 677, 688, 715–30, 800, 817, 820, 821, 829, 848 Annex III (ICAO) . . . . . . . . . . . 42, 524, 616, 677, 711, 731–40, 800, 817, 820, 821, 829 Annex IV (UNESCO) . . . . . 39, 42, 105, 524, 616, 690, 741–48, 800, 817, 820, 821, 829, 850 Annex V (IMF) . . . . . . . . . . . . . 43, 413, 428, 524, 603, 616, 618, 623, 749–54, 850 Annex VI (IBRD) . . . . . . . . . . . 79, 101, 113, 416, 603, 616, 618, 623, 755–76, 807, 810, 811, 813, 816, 850 Annex VII (WHO) . . . . . . . . . . . 39, 42, 305, 306, 524, 688, 777–84, 800, 817, 820, 821, 829, 850

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Table of Treaties Annex VIII (UPO). . . 515, 614, 617, 785, 850 Annex IX (ITU) . . . . 266, 515, 617, 787, 850 Annex X (IRO) . . . . . . 33, 617, 691, 793, 850 Annex XI (WMO) . . . . 33, 614, 617, 795, 850 Annex XII (IMO) . . . . . . . . . . . . . . . 33, 395, 524, 617, 675, 688, 797–803, 817, 820, 821, 829, 850 Annex XIII (IFC). . . . . . . . . . . . . . . . . 33, 43, 101, 525, 617, 623, 675, 678, 805, 811, 813, 850 Annex XIV (IDA) . . . . . . . . . . . . . . . 33, 101, 617, 618, 623, 675, 815, 850 Annex XV (WPO) . . . . . . . . . . . . . 33, 37, 43, 524, 617, 800, 817–23, 829 Annex XVI (IFAD) . . . . . . . . . . . . . . 33, 524, 617, 800, 820, 825–31 Annex XVII (UNIDO) . . . . . . . . . . . 34, 524, 609, 617, 800, 817, 820, 829, 833–43, 850 Annex XVIII (UNWTO) . . . . . . 34, 525, 617, 800, 820, 829, 845 Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly of the United Nations on 13 February 1946, entered into force on 17 September 1946, 1 UNTS 15 . . . . . . . . . .3, 7–12, 15–21, 26–28, 31, 38, 49–54, 60, 64, 66, 67, 77, 81, 83, 87, 88, 92, 93, 95, 96, 99, 100, 118, 133, 158, 169, 174, 175, 180, 187, 196, 201, 207, 210, 215, 224, 255, 256, 270, 275, 277, 284, 294, 295, 298, 300, 304, 307, 309, 315, 316, 326, 335, 348–50, 352, 370, 372, 376, 377, 390, 398, 407, 412, 423, 425, 434, 439, 454, 455, 477, 486, 492, 498–501, 504, 513, 579, 583, 610, 632, 647, 648, 651, 655, 656, 661–63, 665, 666, 680, 701, 801, 802, 821, 829, 835, 859, 871 Art I . . . . . . . . . . . . 10, 18, 49, 51, 529, 700, 702, 871 s 1 . . . . . . . . . . . . 49, 50, 52, 55, 57–60, 69, 83, 529, 634, 700 s 1(1)(b) . . . . . . . . . . . . . . . . . . . . . 640, 645 Art II . . . . . . . . . . . 10, 18, 57, 80, 141, 198, 219, 347, 459, 529, 534, 589, 842, 859 s 2 . . . . . . . . . .38, 63–65, 67, 69, 80, 83–90, 92–94, 96–99, 101, 104, 110, 120, 130, 134, 170, 192, 198, 199, 226, 326, 329, 346, 375, 384, 411, 529, 531, 533–35, 589, 592, 646, 726, 842 s 3 . . . . . . . . . . . . . 57, 83, 94, 125–27, 129, 131, 134, 135, 141, 143, 157, 176, 197, 263, 392, 646 s 4 . . . . . . . . . . . . 92, 126, 157–59, 161–64, 176, 179, 180, 182, 263, 386, 393

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s 4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 646 s 5 . . . . . . . . . . . . . . . 191–94, 196–98, 200, 203, 204, 206, 208, 210, 211, 213, 216, 364, 459, 645 s 5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 s 5(b) . . . . . . . . . . . . . . . . . . . . . . . 192, 207 s 6 . . . . . . . . . . .191–94, 196, 198, 200, 203, 204, 206, 208, 210, 211, 213, 216 s 7 . . . . . . . . . . . . . . 192, 197, 219, 221–23, 232–35, 238, 241, 295, 370 s 7(a) . . . . . . . . . . . . 195, 203, 223, 226–28, 240, 347, 355, 459, 495, 646 s 7(b) . . . . . . . . . 135, 228–30, 238, 240, 370 s 7(c) . . . . . . . . . . . . . . . . . . . 230, 239, 459 s 7(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 341 s 8 . . . . . . . . . . . .192, 219, 221–23, 231–35, 238, 241, 295, 347, 370, 646 Art III . . . . . . . . . . . . . . . 11, 18, 50, 51, 245, 247, 249, 252, 260, 859 s 9 . . . . . . . 157, 245, 247–51, 256, 263, 264 s 10 . . . . . . . . . . . . 157, 240, 245, 247, 248, 250–52, 254, 255, 256, 263, 264 Art IV . . . . . . . . . . 11, 18, 275–77, 280, 287, 290, 295, 298, 301, 305, 307, 326, 377, 397, 446, 456, 560, 579, 587, 822, 841, 859, 867 ss 11–16 . . . . . . . . . . . . . . 305, 307–10, 462, 463, 560, 579, 587 s 11 . . . . . . . . . . . . 26, 38, 275–80, 290–92, 296, 297, 301, 306, 307, 587, 867 s 11(a). . . . . . 137, 281–85, 290–92, 307, 309 s 11(b) . . . . . . . . . . . . . . . .285, 290–92, 308 s 11(c). . . . . . . . . . . . . 252, 290–92, 308, 462 s 11(d) . . . . . . . . . . . . . 286–88, 290–92, 308 s 11(e). . . . . . . . . 198, 206, 290–92, 308, 463 s 11(f) . . . . . . . . . . . . . . . . .283, 290–92, 309 s 11(g) . . . . . . . . . . . . . . . . . . 278, 284, 285, 290–94, 301, 304, 305 s 12 . . . . . . . . . . . . . . 26, 275–77, 280, 290, 294, 295, 297, 301, 310, 340, 822, 867 s 13 . . . . . . . . . . . . . . . . . . 26, 275–77, 290, 295, 297, 301, 867 s 13(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 280 s 14 . . . . . . . . . . . . 275, 277, 290, 291, 295, 296, 301, 304, 309 s 15 . . . . . . . . . . . . . 275–77, 281, 290, 297, 301, 310, 326, 377, 446, 868 s 16 . . . . . . . . . . . . . . . 26, 38, 275–77, 279, 290, 297, 301, 305 Art V . . . . . . . . . . . . . 11, 18, 132, 169, 170, 313, 316–22, 324–26, 335, 347, 377, 439, 441, 442, 446, 448, 454, 456, 457, 459–61, 464, 488, 492, 504, 529, 547, 560, 561, 646, 656, 711, 772, 800, 820, 829, 859 ss 17–21 . . . . . . . . . . . . . 313, 353, 403, 406, 424, 428, 431, 442, 443, 448, 454,

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457, 459–61, 464, 488, 499, 501, 504, 547, 560, 561, 646, 772, 800 s 17 . . . . . . . . . . . . . 26, 206, 313, 316, 317, 323–25, 341, 355, 373, 375, 383, 396, 457, 482 s 18 . . . . . . . . . . 80, 92, 198, 313, 315, 341, 346, 371, 373–75, 380, 459, 482, 492, 529 s 18(a). . . . . . . . . . . . . . . . 86, 130, 137, 319, 326, 328, 329, 331, 335, 338, 340, 375, 379, 381, 386, 390, 409, 443, 461, 646 s 18(b) . . . . . . . . 340, 341, 342, 344–48, 413 s 18(c). . . . . . . . . . . . . . . . . . . . 348–52, 424 s 18(d) . . . . . . . . . . . . . . . 286, 325, 352–56, 360, 361, 371, 375, 379, 380, 393, 492, 496, 498, 505 s 18(e). . . . . . . . . . . . . . . .203, 206, 362, 463 s 18(f) . . . . . . . . . . . . . . . .353, 371, 420, 505 s 18(g) . . . . . . . . . . . . . . . . . . . . . . . . . . 198 s 19 . . . . . . . . . . 26, 42, 313, 326, 353, 358, 371–77, 379, 380, 386, 463, 482, 485, 486, 501–3, 537, 561, 800, 820, 829 s 19(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 412 s 20 . . . . . . . . . . . . . 26, 169, 313, 327, 378, 380–84, 386, 389–91, 423, 464, 561 s 21 . . . . . . . . . . . . . 93, 131, 132, 134, 169, 170, 206, 313, 387–89, 392, 434 Art VI . . . . . . .11, 18, 19, 317, 320, 326, 373, 375, 398, 423, 439–42, 444–46, 447, 451–53, 456, 457, 459, 460, 464, 489, 498, 499, 560, 646, 656, 710, 721, 722, 735, 781, 801, 802, 821–23, 830, 841, 868 s 22 . . . . . . 19, 317, 320, 324, 330, 331, 340, 346, 373, 377, 423, 439, 444–48, 456, 458, 459, 461, 462, 489, 498, 499, 646, 710, 711, 721, 735, 781, 801, 821, 822, 830, 868 s 22(a)–(f) . . . . . . . . . . . . . . . . . . . . . . . . 458 s 22(a). . . . . . . . . . . . . . . .377, 460, 498, 841 s 22(b) . . . . . . . . . . . 137, 331, 335, 460, 461 s 22(c). . . . . . . . 126, 158, 162, 164, 198, 463 s 22(d) . . . . . . . . . . . . . . . . . . . . . . 252, 721 s 22(f) . . . . . . . . . . . . . . . . . . . . . . . 460, 498 s 23 . . . . . . . . . . . . . 26, 169, 317, 320, 324, 330, 331, 346, 373, 377, 391, 423, 439, 445, 461, 464, 489, 498, 499, 711, 721, 735, 781, 801, 802, 821, 822, 823, 830 Art VII . . . . . . . . . 11, 18, 316–19, 321, 322, 324, 353, 354, 382, 441, 447, 448, 451, 456, 459, 477–79, 483, 484, 495, 497, 499, 501, 502, 504, 507, 508, 511–14, 522–24, 526, 656, 868 ss 24–28 . . . . . . . . . . . . . 353, 354, 477, 478, 486, 513, 522, 523 s 24 . . . . . . . . . . . . . . . . 206, 456, 483, 484, 492, 495, 497, 498, 504, 507 s 25 . . . . . . . . . . 354, 456, 483, 496–99, 504

s 26 . . . . . 445, 451, 456, 498, 501, 523, 524 s 27 . . . . . . . . . . . . . . . . . 26, 374, 485, 486, 501, 502, 513, 514 s 28 . . . . . . . . . . . . . . . . . . . . . . . . 513, 514 Art VIII . . . . . . . . . . . . 11, 12, 18, 335, 351, 521, 529–31, 535, 537–42, 546, 549, 551, 553–55, 558–61, 571–78, 580–90, 592, 595, 599, 600, 603, 604, 631, 633 s 29 . . . . . . . . . . . 73, 77, 335, 514, 529–32, 535, 537–42, 546, 548, 549, 551–56, 558–60, 571, 572, 574, 578, 579, 587, 589, 590, 592, 595, 603, 604, 631, 633 s 29(a). . . . . . . . . . . . . . . . 72, 77, 80, 86, 92, 96, 539, 543, 560 s 29(b) . . . . . . . . . . . 530, 539, 543, 560, 561 s 30 . . . . . . . . . . . . . 12, 206, 335, 336, 514, 529, 530, 535, 555, 572–88, 599, 600, 603, 604, 631, 633 Final Article. . . . . . . . . . . . . . 9, 11, 583, 621, 629, 630, 632, 652, 653, 663, 665, 666, 677, 679–82, 687, 692 ss 31–36 . . . . . . . . . . . . . 610, 629, 661, 662, 666, 667, 671, 672, 680, 681, 683–87, 692, 693, 695 s 31 . . . . . . . . . . . . . . . . 206, 514, 583, 630, 632, 633, 642, 647, 649, 663, 665, 693, 695 s 32 . . . . . . . . . . . . 9, 12, 206, 630, 632–40, 642–44, 647, 649, 665–67, 669 s 33 . . . . . 633, 637, 638, 640, 641, 679, 695 s 34 . . . 44, 206, 635, 640, 642–47, 682, 683 s 35 . . . . . . . . . . . . . . . . . 12, 206, 583, 630, 633, 647–52, 677, 685–87, 692 s 36 . . . . . . . . . . . . . . 621, 652–55, 657, 658 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), opened for signature on 13 January 1993, entered into force on 29 April 1997, 1974 UNTS 317 . . . . . . . . . . . . . . . . 873, 874, 878 Art VIII . . . . . . . . . . . . . . . . . 873, 874, 879 s 34(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 874 s 38(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 878 s 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 879 s 50 . . . . . . . . . . . . . . . . . . . . 873, 874, 879 Verification Annex . . . . . . . . . . . . . . . . . . 873 Convention on the Safety of United Nations and Associated Personnel, adopted by the General Assembly of the United Nations on 9 December 1994, entered into force on 15 January 1999, 2051 UNTS 363 . . . . . . . . . . . . . . . . . . . .132, 137

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Table of Treaties Art 6(1). . . . . . . . . . . . . . . . . . . . . . . . . . 137 Art 6(1)(b) . . . . . . . . . . . . . . . . . . . . . . . 132 Art 6(2). . . . . . . . . . . . . . . . . . . . . . . . . . 132 Art 20(c) . . . . . . . . . . . . . . . . . . . . . 132, 137 Covenant of the League of Nations, signed on 28 June 1919, 225 CTS 195, 2 LNOJ (1920) . . . . . . . . . . . . . 3, 4, 126, 314, 401, 479, 480, 704, 860, 861, 865 Art 6(1). . . . . . . . . . . . . . . . . . . . . . . . . . 865 Art 7 . . . . . . . . . . . . . . . . . . .4, 314, 480, 704 Art 7(4). . . . . . . . . . . . . 3, 401, 479, 860, 861 Art 7(5). . . . . . . . . . . . . . . . . . . . . . . . 3, 126 European Convention for the Peaceful Settlement of Disputes, signed on 29 April 1957, entered into force on 30 April 1958, 320 UNTS 243 . . . . . . . . 581 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed on 4 November 1950, entered into force on 3 September 1953, 213 UNTS 221. . . . . . . . . 72, 74–79, 88, 591 Art 6 . . . . . . 74, 76, 77, 79, 88, 151, 534, 546 Art 6(1). . . . . . . . . . . . . . . . . 72, 75, 76, 591 European Convention on State Immunity, signed on 16 May 1972, entered into force on 11 June 1976, 1495 UNTS 181 . . . . . . . . . . . . . . . . 65, 90, 95, 97 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 General Agreement on Privileges and Immunities of the Council of Europe, signed on 2 September 1949, ETS No 2, 250 UNTS 14 . . . . . . . . . . . . . . . . . . . 5, 67 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 95 Hague Convention with respect to the Laws and Customs of War on Land, signed on 29 July 1899, entered into force on 4 September 1900, 32 Stat 1779 . . . . . . . 860 Art 24(8). . . . . . . . . . . . . . . . . . . . . . . . . 860 Hague Convention for the Pacific Settlement of international Disputes, signed on 18 October 1907, entered into force on 26 January 1910, UKTS 6 . . . . . . . . . . . . 860 Art 46(4). . . . . . . . . . . . . . . . . . . . . . . . . 860 International Convention on the Elimination of all Forms of Racial Discrimination, adopted by the General Assembly of the United Nations on 21 December 1965, entered into force on 4 January 1969, 660 UNTS 195. . . . . . . . . . . . . . . . . . . . 452 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 International Covenant on Civil and Political Rights, adopted by the General Assembly

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of the United Nations on 19 December 1966, entered into force on 23 March 1976, 999 UNTS 171 . . . . . . . . . . . . . 72, 79, 89, 385, 554 Arts 1–27 . . . . . . . . . . . . . . . . . . . . . . . . . 89 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Art 14(1). . . . . . . . . . . . . . . . . . . . . . . . . . 72 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 International Telecommunication Convention (Madrid), signed on 9 December 1932, entered into force on 1 January 1934, 151 LNTS 4 . . . . . . . . . . . . . . . . . . . . . . 787 International Telecommunication Convention (Nairobi), signed on 6 November 1982, entered into force on 1 January 1984, 1531 UNTS 320. . . . . . . . .250, 251, 256–58, 260, 261, 264, 268, 269, 271, 789, 790 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Art 45 . . . . . . . . . . . . . . . . . . . . . . . 258, 260 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted at the Third Session of the Conference of the Parties to the 1992 United Nations Framework Convention on Climate Change on 11 December 1997, entered into force on 16 February 2005, 2303 UNTS 162. . . . . . . . . . . . . . . .453, 454 Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised at Stockholm on 14 July 1967, entered into force on 26 April 1970, 828 UNTS 305 . . . . . . . . . . . . . . . . . . . . . . . 818 Peace Treaty of Versailles, signed on 28 June 1919, 225 CTS 188 . . . . . . . . . . . . . . . . 700 Part XIII, Arts 387–399 . . . . . . . . . . . . . . 700 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), adopted on 8 June 1977, entered into force on 7 December 1978, 1125 UNTS 3 . . . . . . 134 Art 70(3). . . . . . . . . . . . . . . . . . . . . . . . . 134 Protocol on the Privileges and Immunities of the European Patent Organisation, signed on 5 October 1973, entered into force on 7 October 1977, 1065 UNTS 500 . . . . . . . 68 Art 3(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 68 Art 3(4). . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Protocol on the Privileges and Immunities of the International Mobile Satellite Organization, signed on 1 December 1981, entered into force on 30 July 1983, . . . . . . . . . . . . . . . . . . 147

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Art 2(3)(c). . . . . . . . . . . . . . . . . . . . . . . . 147 Relationship Agreement between the International Criminal Court and the United Nations, signed and entered into force on 4 October 2004, 2283 UNTS 196 . . . . . . . . . . . . . . . . . . . .503, 512 Revised General Act for the Pacific Settlement of International Disputes, adopted by the General Assembly of the United Nations on 28 April 1949, entered into force on 20 September 1950, 71 UNTS 101 . . . . . . . . . . . . . . . . . . . .581, 635 Revised Standard Agreement on Technical Assistance between the United Nations, including the United Nations Industrial Development Organization and the United Nations Conference on Trade and Development, the ILO, the FAO, the UNESCO, the ICAO, the WHO, the ITU, the WMO, the IAEA, the UPU and the Inter-Governmental Maritime Consultative Organization, and the Government of the People’s Republic of Bangladesh, signed on 12 and 31 July 1972, 832 UNTS 266 . . . . . . . . . . . . . . . . . . . .577, 602 s 1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 Special Agreement between the United Nations and Inter–Governmental Maritime Consultative Organization extending the competence of the Administrative Tribunal of the United Nations to the Inter-Governmental Maritime Consultative Organization with respect to Applications alleging Non-observance of Contracts of Employment of Staff Members of the Inter-Governmental Maritime Consultative Organization, signed on 11 and 20 February 1964, entered into force on 1 December 1963, 489 UNTS 357 . . . . . 598 Special Agreement extending the Competence of the Administrative Tribunal of the United Nations to the International Civil Aviation Organization with respect to Applications alleging Non-observance of Contracts of Employment or of the Terms of Appointment of Staff Members of the International Civil Aviation Organization, signed on 24 and 28 June 1960, entered into force on 15 July 1960, 399 UNTS 306 . . . . . . . . . . . . . . . . . . . . . . . 598 Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted on 25 May 1993 by UNSC Resolution 827,

as amended on 7 July 2009 by UNSC Resolution 1877) (ICTY), . . 172, 319, 322, 373, 488 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 Art 30(1). . . . . . . . . . . . . . . . . . . . . 319, 322 Art 30(2). . . . . . . . . . . . . . . . . . . . . 322, 373 Art 30(3). . . . . . . . . . . . . . . . . . . . . . . . . 319 Statute for the International Criminal Tribunal for Rwanda, adopted on 8 November 1994 by UNSC Resolution 955, as amended on 26 March 2004 by UNSC Resolution 1534 (ICTR), . . . . . . . . . . . . . . . . 319, 322, 373, 488 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 Art 29(1). . . . . . . . . . . . . . . . . . . . . 319, 322 Art 29(2). . . . . . . . . . . . . . . . . . . . . 322, 373 Art 29(3). . . . . . . . . . . . . . . . . . . . . . . . . 319 Statute of the Council of Europe, signed on 5 May 1949, entered into force on 3 August 1949, 87 UNTS 103. . . . . . . . . . . 4 Art 40(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statute of the International Atomic Energy Agency, signed on 26 October 1956, entered into force on 29 July 1957, 276 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . . 601 Statute of the International Court of Justice, signed on 26 June 1945, entered into force on 24 October 1945 . . . . . . . . . 572–74, 578, 580–83, 585, 587, 599, 859–63, 865–67, 869 Art 13(1), (3) . . . . . . . . . . . . . . . . . . . . . 868 Art 18(1). . . . . . . . . . . . . . . . . . . . . . . . . 869 Art 19 . . . . . . . . . . . . . . . . . .859–63, 867–69 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 23(1). . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 23(3). . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 30(2). . . . . . . . . . . . . . . . . . . . . . . . . 865 Art 31(2). . . . . . . . . . . . . . . . . . . . . . . . . 868 Art 31(3). . . . . . . . . . . . . . . . . . . . . . . . . 868 Art 31(6). . . . . . . . . . . . . . . . . . . . . . . . . 869 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . 863 Art 32(3). . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . 582 Art 36(1). . . . . . . . . . . . . .572, 578, 580, 581 Art 36(2). . . . . . . . . . . . . . . . . . . . . . . . . 582 Art 42(3). . . . . . . . . . . . . .859, 861, 863, 864 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . 865 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . 865 Art 65 . . . . . . . . . . . . . . 572, 573, 58–85, 599 Statute of the Permanent Court of International Justice, signed on 16 December 1920, 6 LNTS 379. . . . . . . . . 3 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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Table of Treaties Statute of the International Criminal Court (Rome Statute), signed on 17 July 1998, entered into force on 1 July 2002, 2187 UNTS 90 . . . . . . .173, 693 Art 123 . . . . . . . . . . . . . . . . . . . . . . . . . . 693 Statutes of the World Tourism Organization, adopted on 27 September 1970, entered into force on 2 January 1975, 985 UNTS 339 . . . . . . . . . . . . . 39, 601, 846, 852 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846 Art 3(1). . . . . . . . . . . . . . . . . . . . . . . . . . 846 Art 6(1). . . . . . . . . . . . . . . . . . . . . . . . . . 846 Art 7(1). . . . . . . . . . . . . . . . . . . . . . . 39, 846 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . 852 Treaty of Non-aggression, Conciliation, Arbitration and Judicial Settlement between the Republic of Colombia and the United States of Venezuela, signed on 17 December 1939, entered into force on 12 September 1941, 1257 UNTS 463. . . . . . . . . . . . . . . . 573 Art XXIV . . . . . . . . . . . . . . . . . . . . . . . . 573 Treaty on the Functioning of the European Union (TFEU), signed on 13 December 2007, 2012/C 326/01 . . . . . . . . . . . .196, 554 Art 321 . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Art 340 . . . . . . . . . . . . . . . . . . . . . . . . . . 554 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed on 20 December 1988, entered into force on 11 November 1990, 1582 UNTS 165. . . . . . . . . . . . . . . . . . . 573 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 United Nations Convention on Jurisdictional Immunities of States and their Property 2004, adopted by the General Assembly of the United Nations on 2 December 2004 (not yet in force), UNGA Res 59/38, UN Doc Supp No 49 (A/59/49), . . . . . . 5, 38, 65, 86 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 7(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 8(2)(a). . . . . . . . . . . . . . . . . . . . . . . . . 90 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 United Nations Convention on the Law of the Sea, adopted by the Third United Nations Conference on the Law of the Sea on 10 December 1982, entered into force on 16 November 1994, 1833 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . . 261, 453, 694 Art 109 . . . . . . . . . . . . . . . . . . . . . . . . . . 261 Art 319 . . . . . . . . . . . . . . . . . . . . . . . . . . 694

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United Nations Framework Convention on Climate Change, adopted by the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change on 9 May 1992, entered into force on 21 March 1994, 1771 UNTS 107 . . . . . 454 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 Vienna Convention on Consular Relations, signed on 24 April 1963, entered into force on 19 March 1967, 596 UNTS 261 . . . . . . . . . . . . . . . . . . . .125, 147 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Art 31(2). . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 31(4). . . . . . . . . . . . . . . . . . . . . . . . . 147 Vienna Convention on Diplomatic Relations (VCDR), signed on 18 April 1961, entered into force on 24 April 1964, 500 UNTS 95 . . . . . . . . .125, 128, 142, 247, 254, 256, 277, 280–86, 289, 290, 293, 301, 325, 357, 371, 377–79, 428–30, 460, 462, 502, 736, 801, 802, 822, 830, 864, 870, 879 Art 1(i) . . . . . . . . . . . . . . . . . . . . . . 128, 142 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 Art 8(2). . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . 325, 357 Art 9(1). . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 Art 22 . . . . . . . . . . . . . . . . . . . . . . . 142, 285 Art 22(1). . . . . . . . . . . . . . . . . . . . . . . . . 125 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Art 26 . . . . . . . . . . . . . . . . . . . 289, 294, 502 Art 27 . . . . . . . . . . . . . . . . . . . 247, 254, 462 Art 27(2). . . . . . . . . . . . . . . . . 802, 822, 830 Art 27(4). . . . . . . . . . . . . . . . . . . . . . . . . 254 Art 27(7). . . . . . . . . . . . . . . . . . . . . 247, 254 Arts 29–36 . . . . . . . . . . . . . . . . . . . . . . . 379 Art 29 . . . . . . . . . . . . . . . 142, 280, 282, 289, 292, 429, 460, 502, 801, 822, 830, 864 Art 30 . . . . . . . . . . . . . . . . . . . . . . . 429, 864 Art 30(2). . . . . . . . . . . . . . . . . . . . . 285, 462 Art 31 . . . . . . . . . . . . . . . .283, 284, 292, 864 Art 31(1). . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 31(1)(a) . . . . . . . . . . . . . . . . . . . . . . . 870 Art 32(4). . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 864 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . 864 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . 864 Art 36 . . . . . . . . . . . . . . . . . . . . . . . 463, 864 Art 36(1)(b) . . . . . . . . . . . . . . . . . . . . . . 502 Art 36(2). . . . . . 283, 463, 502, 801, 822, 830 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 37(1). . . . . . . . . . . . . . . . . . . . . 379, 428 Art 37(2). . . . . . . . . . . . . . . . . . . . . . . . . 865 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Art 38(1). . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . 379

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Table of Treaties

Art 39(1). . . . . . . . . . . . . . . . . . . . . . . . . 325 Art 39(2). . . . . . . . . . . . . . . . . . . . . 379, 429 Art 41(1). . . . . . . . . . . . . . . . . . . . . 378, 870 Art 41(3). . . . . . . . . . . . . . . . . . . . . . . . . 142 Art 44 . . . . . . . . . . . . . . . . . . . 365, 366, 367 Art 45 . . . . . . . . . . . . . . . . . . . . . . . 142, 366 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 49 . . . . . . . . . . . . . . . . . . . . . . . 459, 460 Vienna Convention on Succession of States in respect of Treaties, signed on 23 August 1978, entered into force on 6 November 1996, 1946 UNTS 3 . . . . . . 639 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 Vienna Convention on the Law of Treaties (VCLT), signed on 23 May 1969, entered into force on 27 January 1980, 1155 UNTS 331 . . . . . . . . . . .13, 44, 207, 579–81, 583, 604, 610, 637–39, 672, 682–83, 687, 689 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . 580, 651 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 651 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 Art 19(a) . . . . . . . . . . . . . . . . . . . . . . . . . 580 Art 19(c) . . . . . . . . . . . . . . . . . . . . . 580, 604 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 638 Art 20(3). . . . . . . . . . . . . . . . . . . . . . . . . 638 Art 20(4)(b) . . . . . . . . . . . . . . . . . . . . . . 581 Art 24(4). . . . . . . . . . . . . . . . . . . . . . . . . 613 Art 26 . . . . . . . . . . . . . 44, 643, 644, 682, 683 Art 27 . . . . . . . . . . . . . . . . . . . . 44, 643, 682 Art 30(2). . . . . . . . . . . . . . . . . . . . . . . . . 622 Art 30(3)(b) . . . . . . . . . . . . . . . . . . . . . . 754 Art 30(4)(b) . . . . . . . . . . . . . . . . . . . . . . 687 Art 31 . . . . . . . . . . . . . . . . . . . . . . . 579, 614 Art 31(1). . . . . . . . . . . . . . . . . . . . . . . . . 614 Art 34 . . . . . . . . . . . . . . . . . . . 583, 610, 614

Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Art 40 . . . . . . . . . . . . . . . . . . . . . . . 651, 687 Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 Arts 54–62 . . . . . . . . . . . . . . . . . . . . . . . 647 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 Art 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 Art 77 . . . . . . . . . . . . . . . . . . . . . . . 672, 694 Art 77(1)(c) . . . . . . . . . . . . . . . . . . . . . . . 637 Art 77(1)(e) . . . . . . . . . . . . . . . 641, 679, 691 Art 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . 672 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLT II), signed on 21 March 1986 (not yet in force), UN-Doc. A/CONF.129/15 . . . . . . . . . . . . 13, 44, 610, 649, 654, 661, 677 Art 2(1)(j) . . . . . . . . . . . . . . . . . . . . . . . . 654 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654 Art 7(3)(b) . . . . . . . . . . . . . . . . . . . . . . . 654 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . 610 Art 35 . . . . . . . . . . . . . . . . . . . . . . . 661, 677 Art 36 . . . . . . . . . . . . . . . .649, 661, 677, 678 Art 36(1). . . . . . . . . . . . . . . . . . . . . . . . . 678

OTHER INSTRUMENTS Articles on Responsibility of States for Internationally Wrongful Acts, 53 UN GAOR Supp. (No 10) at 43, UN-Doc. A/56/10 (2001). . . . . . . . . . . . . . . . . .44, 142 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Art 50(2)(b) . . . . . . . . . . . . . . . . . . . . . . 142 Art 53(2)(b) . . . . . . . . . . . . . . . . . . . . . . 142

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Table of Statutes AUSTRIA

UNITED KINGDOM

Law on the Granting of Privileges and Immunities to International Organizations, Federal Act of 14 December 1977 . . . . . . . . . . . . . . . . . . . 6

European Bank for Reconstruction and Development (Immunities and Privileges) Order 1991. . . . . . . . . . . . . . . . . . . . . . . 408 Art 13(1)(a) . . . . . . . . . . . . . . . . . . . . . . . 408 Income and Corporation Taxes Act 1988 . . . 772 s 131(1) . . . . . . . . . . . . . . . . . . . . . . . . . 772 International Organizations Act 1968 (IOA) . . . . . . . . . . . . . . . . . . . .7, 10, 65, 874 Sch 1 . . . . . . . . . . . . . . . . . . . . . . . . 65, 104 Pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

CANADA Foreign Missions and International Organizations Act 1991 (FMIOA) . . . . . . . . . . . . . . . . .100, 736, 740 s 5(1)(h) . . . . . . . . . . . . . . . . . . . . . . . . . 738 Privileges and Immunities (United Nations) Act 1952. . . . . . . . . . . . . . . . . . . . . . . . . . 10

INDIA United Nations (Privileges and Immunities) Act 1947. . . . . . . . . . . . . . . . . . . . . . . . . 104

ITALY Constitution Art 24 . . . . . . . . . . . . . . . . . . . . . . . 114, 115

LITHUANIA Constitution of the Republic of Lithuania . . . . . . . . . . . . . . . . . .60, 645, 684 Art 47 . . . . . . . . . . . . .60, 108, 631, 645, 684

SWITZERLAND 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 . . . . . . . 6, 10, 103, 621

UNITED STATES Bretton Woods Agreements Act (Public Law 171–79th Congress) . . . . . .398, 749, 759 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759 Diplomatic Relations Act 1978 . . . . . . . . . . . 537 Foreign Sovereign Immunities Act 1976 (FSIA) . . . . . . . . . . . . . . . . . . . . 71, 87 International Finance Corporation Act 1955. . . . . . . . . . . . . . . . . . . . . . . . . 808 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808 International Organizations Immunities Act 1945 (IOIA) . . . . . . . . . 6, 10, 70, 79, 80, 87, 93, 100, 104, 276, 398, 419, 422, 428, 469, 740, 749, 761, 762, 767, 808, 809, 819, 873, 874 Title 1, s 2(b) . . . . . . . . . . . . . . . 68, 71, 819 ss 288–288(f) . . . . . . . . . . . . . . . . . 398, 749 s 288(a). . . . . . . . . . . . . . . . . . . . . . . . 84, 87 s 288(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 87 s 288(f) . . . . . . . . . . . . . . . . . . . . . . . . . . 761 Specialized Agencies of the United Nations (Immunities and Privileges) Order 1974, SI 1974/1260 . . . . . . . . . . . . . . . . . . . . . 105 Art 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

VENEZUELA Constitution of the Republic . . . . . . . . . . . . 645

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Abbreviations ABCA AC ACABQ ACP Group AD ADB Add AfDB AFDI AJIL All ER AMF Ann App Art./Arts AsDB ASECNA ASG ATF BE BGE BIS BVerfG BvR

Cal CanLII CERD CERN CF Cf Ch CH Cir Clunet Co

Alberta Court of Appeal (Canada) Appeals Cases Advisory Committee on Administrative and Budgetary Questions African, Caribbean, and Pacific Group of States Annual Digest and Reports of Public International Law Cases Asian Development Bank Addendum African Development Bank Annuaire Français de Droit International American Journal of International Law The All England Law Reports Arab Monetary Fund Annex/Annuaire Appellate/Application/Appendix Article/Articles Asian Development Bank Agence pour la sécurité de la navigation aérienne en Afrique et à Madagascar Assistant Secretary-General Recueil officiel des arrêts du Tribunal fédéral suisse/Arrêts du Tribunal Fédéral Suisse (CH) Belgium Entscheidungen des (Schweizerischen) Bundesgerichts – Decisions of the Supreme Court of Switzerland Bank for International Settlements Bundesverfassungsgericht—German Constitutional Court Verfassungsrechtliche Beschwerde (Reference Number of an Individual Constitutional Complaint before the German Constitutional Court) California Canadian Legal Information Institute Committee on the Elimination of Racial Discrimination (Conseil) Organization Européenne pour la Recherche Nucléaire/ European Organization for Nuclear Research Contingency Fund Confer/Compare Chamber/Chapter Confoederatio Helvetica/Switzerland Circuit Journal du Droit International Company

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lii Comm Corp CSCE CSJN Ct CTBTO DC DDC DFA Dig Div Doc DPKO DVBl EC ECA ECAFE ECCC ECHR ECITO ECJ ECLAC ECOSOC ECR ECtHR ECWA ed edn eds eg EDNY EEC EPO EPTA ESA ESCAP ESCWA et al et seq etc ETS EU EUROCONTROL EWHC

Abbreviations Commercial Corporation Conference on Security and Co-operation in Europe Corte Suprema de Justicia de la Nación (Argentina) Court Comprehensive Nuclear Test-Ban Treaty Organization District of Columbia/Disarmament Commission United States District Court for the District of Columbia Department of Foreign Affairs Digest Division Document UN Department of Peacekeeping Operations Deutsches Verwaltungsblatt European Community/Communities (United Nations) Economic Commission for Africa (United Nations) Economic Commission for Asia and the Far East Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights and Fundamental Freedoms European Central Inland Transportation Organization European Court of Justice Economic Commission for Latin America and the Caribbean United Nations Economic and Social Council European Court Reports European Court of Human Rights (United Nations) Economic Commission for Western Asia editor edition editors exempli gratia United States District Court of the Eastern District of New York European Economic Community European Patent Office/Organization Expanded Programme of Technical Assistance European Space Agency (United Nations) Economic and Social Commission for Asia and the Pacific Economic and Social Commission for Western Asia et alii et sequens et cetera European Treaty Series European Union European Organization for the Safety of Air Navigation England and Wales High Court (UK)

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Abbreviations Exec F. Supp. F.2d F.3d FAO Fed ff Fin Reg FMIOA fn Foreign Aff FR FRG Friedens-Warte

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Executive Federal Supplement Federal Reporter (second series) Federal Reporter (third series) Food and Agriculture Organization of the United Nations Federal and following Financial Regulations Foreign Missions and International Organizations Act (Canada) footnote (external to the work) Foreign Affairs France Federal Republic of Germany Die Friedens-Warte (Journal of International Peace and Organization) FSIA (US) Foreign Sovereign Immunities Act 1976 GA/UNGA United Nations General Assembly GAOR Official Records of the (UN) General Assembly GATT General Agreement on Tariffs and Trade GDR German Democratic Republic General Convention Convention on the Privileges and Immunities of the United Nations 1946 GNP gross national product Govt Government GR General Register (RP) HC High Court HL House of Lords HMQ Her Majesty The Queen HQ Headquarters HRC Human Rights Committee HRLJ Human Rights Law Journal HRL Rev Human Rights Law Review IADB Inter-American Development Bank IAEA International Atomic Energy Agency IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organization ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia ie id est IFI(s) International Financial Institution(s) ILC International Law Commission ILDC International Law in Domestic Courts ILM International Legal Materials

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liv ILO ILOAT ILOOB ILR IMF Inc INCB INPDAI INTELSAT INTERPOL Intl Aff IOA IOIA IOM IPGRI IPRax IRO IT ITC ITU J JDI KB L lit LJN LPICT LR Ltd MIGA MN MONUA MONUC n/nn NATO ND Cal NGO NJW NL No OACI OAS OAU

Abbreviations International Labour Organisation International Labour Organisation Administrative Tribunal ILO Official Bulletin International Law Reports International Monetary Fund Incorporated International Narcotics Control Board Istituto Nazionale di Previdenze per i Dirigenti di Aziende Industriali International Telecommunications Satellite Organization International Criminal Police Organization International Affairs International Organizations Act 1968 (UK) International Organizations Immunities Act 1945 (US) International Organization for Migration International Plant Genetic Resources Institute Praxis des Internationalen Privat- und Verfahrensrechts International Refugee Organization Italy International Tin Council International Telecommunication Union Journal Journal du Droit International (Clunet) Law Reports King’s Bench (UK) Law litera Landelijk Jurisprudentie Nummer/National Jurisprudence Number (NL) Law & Practice of International Courts and Tribunals Law Reports limited Multilateral Investment Guarantee Agency margin number United Nations Observer Mission in Angola United Nations Organization Mission in the Democratic Republic of the Congo note/notes North Atlantic Treaty Organization United States District Court, Northern District of California Non-governmental Organization Neue Juristische Wochenschrift Netherlands Number Organisation de l’Aviation Civile Internationale/International Civil Aviation Organization Organization of American States Organization for African Unity

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Abbreviations OCHA OECD OJ ONUC ONUMOZ ONUSAL ONUVEH OPCW OPEC OTC para(s) PC PCCTBTO PCIJ PLO Q QB QCCA QCCS Rep Res Rev RF RP s SAC SALT SC/UNSC SCC SCOR SCR SDNY SG/UNSG SOFA SOMA SOR Stat. Supp. TFEU tr/trs trans trans (author) UDHR

lv

Office for the Coordination of Humanitarian Affairs Organization for Economic Co-operation and Development Official Journal Opération des Nations Unies au Congo/United Nations Operation in the Congo United Nations Operation in Mozambique United Nations Observer Mission in El Salvador United Nations Observer Group for the Verification of the Elections in Haiti Organization for the Prohibition of Chemical Weapons Organization of Petroleum Exporting Countries Organization for Trade Cooperation paragraph(s) Privy Council (Canada) Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organization Permanent Court of International Justice Palestine Liberation Organization Quarterly Queen’s Bench (UK) Court of Appeal of Québec (Canada) Superior Court of Québec (Canada) Report Resolution Revue/Review Russian Federation Philippines Section Specialized Agencies Convention Strategic Arms Limitation Treaty Security Council Supreme Court of Canada Security Council Official Records Supreme Court Reports United States District Court for the Southern District of New York Secretary-General of the United Nations Status of Forces Agreement Status of Mission Agreement Statutory Orders and Regulations (Canada) Statute Supplement Treaty on the Functioning of the European Union translator/translators translation authors’ translation Universal Declaration of Human Rights

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lvi UK UKSC UN UNAMIR UNAT UN Charter/UNC UNCHR UNCTAD UN Doc UNDP UNEF UNEP UNESCO UNFICYP UNGA UNHCR UNICEF UNIDO UNIDROIT UNIFEM UNIFIL UNJYB UNMEE UNMIK UNMIN UNMOGIP UNMOVIC UNOGIL UNOPS UNOV UNPROFOR UNRRA UNRWA UNSC UNSCOM UNSG/S-G UNTS UNU UNWTO UNYB UPU US USC USG

Abbreviations United Kingdom United Kingdom Supreme Court United Nations (Organization) United Nations Assistance Mission for Rwanda United Nations Administrative Tribunal Charter of the United Nations of 26 June 1945 United Nations Commission on Human Rights United Nations Conference on Trade and Development United Nations Document United Nations Development Programme United Nations Emergency Force United Nations Environmental Programme United Nations Educational, Scientific and Cultural Organization United Nations Peacekeeping Force in Cyprus United Nations General Assembly United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Industrial Development Organization International Institute for the Unification of Private Law United Nations Development Fund for Women United Nations Interim Force in Lebanon United Nations Juridical Yearbook United Nations Mission in Ethiopia and Eritrea United Nations Interim Administration Mission in Kosovo United Nations Mission in Nepal United Nations Military Observer Group in India and Pakistan United Nations Monitoring, Verification and Inspection Commission United Nations Observation Group in Lebanon United Nations Office for Project Services United Nations Office in Vienna United Nations Protection Force in (former) Yugoslavia United Nations Relief and Rehabilitation Agency United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Security Council United Nations Special Commission United Nations Secretary-General United Nations Treaty Series United Nations University World Tourism Organization United Nations Yearbook (UN Department of Public Information) Universal Postal Union United States United States Code Under-Secretary-General

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Abbreviations USSR UST v. VAT VCDR VCLT vol(s) WEU WHO WIPO WL WLR WMO World Bank WTO Ybk

Union of Soviet Socialist Republics United States Treaties and Other International Agreements versus Value Added Tax Vienna Convention on Diplomatic Relations Vienna Convention on the Law of Treaties volume(s) Western European Union World Health Organization World Intellectual Property Organization Westlaw Weekly Law Reports World Meteorological Organization International Bank for Reconstruction and Development World Trade Organization Yearbook

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List of Contributors John V. Augustin is the Director of the Legal Affairs and External Relations Bureau, ICAO. Peter Bachmayer is a Post-Doctoral Researcher at the University of Vienna where he focuses on the privileges and immunities of international organizations as well as on intellectual property law. Ronja Bandyopadhyay is a Legal Officer in the Office of the Legal Counsel, Office of Legal Affairs, at the United Nations. Ana Sofia Barros is a PhD Candidate at the Leuven Centre for Global Governance Studies, KU Leuven. Lance Bartholomeusz is Director of Legal Affairs at the United Nations Relief and Works Agency for Palestine Refugees in the Near East. Liliana Lopez-Bello is a Legal Officer at the Dispute Tribunal of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Christina Binder is Professor of International Law at the University of Vienna. She is a member of the Young Academy of the Austrian Academy of Sciences. Niels Blokker is Professor of International Institutional Law (Schermers Chair) at the Grotius Centre for International Legal Studies at Leiden University in the Netherlands. Gian Luca Burci is the Legal Counsel of the World Health Organization and Adjunct Professor of International Law at the Graduate Institute of International and Development Studies, Geneva. Maria Magdalena Chiquier is an Attorney, Private Sector Development Specialist in the International Finance Corporation/World Bank in Washington D.C. Philippe Couvreur is serving the third year of his seven-year term as Registrar of the International Court of Justice. He was Principal Legal Secretary of the International Court of Justice, from 1995 to 2000, after having served in the Court’s Registry since 1982. He has been a guest lecturer in public international law at the Law Faculty of the Université Catholique de Louvain since 1997. Eva Devoldere is a Legal Officer at the Department of Legal Affairs of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Alberto Dojas holds a Law Degree from the University of Buenos Aires (UBA), a Masters in International Affairs (Columbia University), and a doctorate in International Law (summa cum laude) (UBA). He is a former Legal Adviser to OPCW. Marina Feldman is Principal Counsel and Global Lead Counsel at the IFC Legal Department.

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List of Contributors

Carlos Franzetti is a retired Principal Counsel and current Consultant of the Legal Department of the International Finance Corporation in Washington D.C. Tilmann Geckeler is the Principal Legal Officer at the Office of the Legal Adviser of the International Labour Office. Tomoko Iwata is a Legal Officer in the Office of the Legal Counsel, Office of Legal Affairs, at the United Nations. Ursula Kriebaum is Professor of International Law at the University of Vienna. Jennifer Lester is an Assistant General Counsel in the Legal Department of the International Monetary Fund, where she heads the Administrative Law Unit. Ms Lester is responsible, among other duties, for advising on all matters relating to the Fund’s privileges and immunities Rutsel Silvestre J. Martha was the Legal Adviser of the International Fund for Agricultural Development. He is currently in private legal practice in London. Behrouz Moradi is the Legal Adviser and Director of the Office of Legal Affairs of the United Nations Industrial Development Organization. He has been practising public international law and multilateral diplomacy since the 1980s. Pheabe Morris is Counsel in the Legal Department of the International Monetary Fund where she handles a broad range of international administrative law matters including privileges and immunities of the institution. Edward Chukwuemeke Okeke is a lawyer with the World Bank and previously served with the United Nations and UNESCO. He specializes in international administrative law and international institutional law, with expertise in privileges and immunities. Antoine Ollivier is Special Assistant to the Registrar of the International Court of Justice since 2012. He previously worked as a Legal Officer in the Directorate of Legal Affairs in the French Ministry of Foreign Affairs and as temporary lecturer and research assistant at the University of Paris X-Nanterre. Andrew Opolot is a Legal Officer at the Legal Affairs and External Relations Bureau, ICAO. Riccardo Pavoni is Professor of International and European Law at the University of Siena. Alain Pellet is Legal Adviser to the UNWTO and Professor of International Law at the Université Paris-Ouest, Nanterre-La Défense. He was the former Chairperson of the International Law Commission. He is the President of the French Society for International Law. August Reinisch is Professor of International and European Law at the University of Vienna. Cedric Ryngaert is Professor of Public International Law at Utrecht University. He is a member of the ILA Committee on non-State Actors and an editor of a number of law journals.

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Kirsten Schmalenbach is Professor of International Law at the University of Salzburg. Michael Schoiswohl is a Legal Officer at the Department of Legal Affairs of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). He has held various positions within the United Nations and has lectured and published on a wide range of issues relating to public international law. Anna Segall is the Legal Adviser and Director of the Office of International Standards and Legal Affairs, UNESCO. Antonio Tavares is the Legal Counsel of FAO. Has served with FAO since 1981 where he has held various positions both at headquarters and in decentralized offices.

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I INTRODUCTION

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Introduction to the General Convention August Reinisch

A. Introduction International organizations are relatively new subjects of international law. Neither the so- 1 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 2 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 3 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 4 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 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.

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Introduction: General Convention

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 5 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. 6 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 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.

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C. The Sources of Privileges and Immunities of International Organizations As opposed to State immunity, which has largely been developed through customary 7 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 8 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.

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. REINISCH

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Suggestions to adopt a more generic convention on the privileges and immunities of international organizations in general24 have been discussed in the International Law Commission (ILC) between the 1960s and the 1990s,25 but not further pursued.26 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

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 SecretaryGeneral 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. 24

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invoked before national courts. Thus, the UK adopted the International Organizations Act31 in 1968.32

D. Drafting History Already at the San Francisco Conference, the drafters of the UN Charter considered that 12 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 The Legal Committee started its deliberations in late November 1945 and established a 13 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 On 8 December 1945, the Sub-Committee on Privileges and Immunities en- 14 visaged the separation of a general privileges and immunities treaty and a headquarters 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.’).

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15

16

17

18 19

Introduction: General Convention

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 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 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 subcommittee came out in favour of the adoption of a general convention.47 After this recommendation was endorsed by the Sixth Committee,48 the subcommittee 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 subcommittee 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. The Sixth Committee recommended a final draft of the convention in early February 1946.52 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 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.

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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. The Convention was registered with the UN Secretary-General on 14 December 20 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 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 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 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. 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 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.’).

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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 61

See A Reinisch, Commentary on Art. II Section 2 General Convention. 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. 62

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for the UN to hold and transfer funds and currency.75 Finally, this article contains a number of tax and customs exemptions.76 Art. III (Facilities in Respect of Communications) contains various provisions aimed at ensuring an efficient operation of official communications.77 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. In Art. VII (United Nations Laissez-Passer) the General Convention regulates the issuance of the organization’s travel documents.81 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 The Convention’s Final Article contains provisions on accession, entry-into-force, treaty-revisions and supplementary agreements.83

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G. The Position of the UN towards the General Convention—Party or Beneficiary? Since the General Convention was concluded between the member States of the UN 34 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. Since the General Convention required approval by the UN General Assembly,85 it 35 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 75

See E Devoldere and M Schoiswohl, Commentary on Art. II Sections 5–6 General Convention. See R S J Martha, Commentary on Art. II Sections 7–8 General Convention. 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 76 77

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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 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 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. 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 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 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. 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 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. 89

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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. Neither did it the Court’s advisory opinion in the Reparations case, where the ICJ 41 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. In spite of this uncertainty,100 it seems clear that the UN is bound by the provisions of 42 the General Convention.

H. Conclusion The General Convention has become the central multilateral treaty specifying the 43 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.

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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.

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Introduction to the Specialized Agencies Convention August Reinisch

A. Introduction The adoption of the General Convention as a specification of which privileges and 1 immunities were precisely ‘necessary for the fulfilment of the [UN’s] purposes’1 led to a need to provide similar guidance with regard to those international organizations which were to become Specialized Agencies of the UN. It is thus not surprising that a similar path was followed by adopting a separate 2 convention laying down general rules on the privileges and immunities of the Specialized Agencies with the possibility of adapting these rules to the specific needs of the individual agencies. The latter concern translated into a set of annexes which contain special rules for individual Specialized Agencies.

B. Historical Background The constituent instruments of international organizations like those of their predeces- 3 sors, the international administrative unions,2 did not originally contain any provisions governing their legal status and privileges and immunities. For instance, the 1919 Constitution of the International Labour Organisation—which became a Specialized Agency after World War II—did not contain any provision on privileges and immunities. Only the 1946 amendment of the ILO’s constituent instrument, inserted a provision— apparently inspired by Art. 105(1) of the UN Charter—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’.3 After World War II, the UN Charter prominently adopted the notion of functional 4 personality4 as well as functional privileges and immunities.5 It was this model that provided a template for other international organizations to provide for functional personality as well as functional privileges and immunities. In order to specify the precise scope in particular of such functional privileges and 5 immunities the Specialized Agencies Convention was adopted. It serves as an important treaty clarifying the rights and obligations of the covered international organizations in relation to their member States that have ratified it.

1 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.’). 2 See R Wolfrum, ‘International Administrative Unions’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law Vol. V (OUP 2012) 335–44. 3 Art. 40(1) Constitution of the ILO, as amended in 1946, 15 UNTS 35. 4 Art. 104 UN Charter (‘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.’). 5 Art. 105(1) UN Charter (n 1).

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In addition, and particular with regard to non-parties of the Specialized Agencies Convention, the privileges and immunities of the Specialized Agencies are governed by bilateral headquarters or seat agreements as well as specific legislation in some States.6 7 Specialized Agencies7 are universally open international organizations, ‘established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields . . . ’.8 They are separate from the UN, but they have been ‘brought into relationship with the United Nations in accordance with the provisions of Article 63’.9 8 This relationship with individual Specialized Agencies is defined more precisely in ‘relationship agreements’ entered into by the UN’s Economic and Social Council and approved by the General Assembly.10 The Economic and Social Council co-ordinates the work of the agencies11 and receives reports by them.12

C. Drafting History 9 Already when the General Convention was negotiated, the Preparatory Commission of the United Nations noted the need for the privileges and immunities of the Specialized Agencies as laid down in their respective constituent instruments to be considered and that, if necessary, ‘negotiations should be opened for their co-ordination in the light of any convention ultimately adopted by the United Nations’.13 10 When the UN General Assembly approved the General Convention on 13 February 1946, it also adopted a ‘Resolution on the Co-ordination of the Privileges and Immunities of the United Nations and the Specialized Agencies’.14 In that resolution, the General Assembly stressed the ‘advantages in the unification as far as possible of the privileges and immunities enjoyed by the United Nations and the various specialized agencies’.15 At the same time, it recognized that ‘not all specialized agencies require all the privileges and immunities which may be needed by others, and that certain of these may, by reason of their particular functions, require privileges of a special nature which are not required by the United Nations itself . . . ’.16 Nevertheless, the General Assembly considered that the privileges and immunities of the United Nations should be regarded, as a general rule, as a maximum within which the various specialized agencies should enjoy such privileges and immunities as the appropriate fulfilment of their respective functions may require, and that no privileges and immunities which are not really necessary should be asked for.17

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See A Reinisch, Introduction to the General Convention, MN 26. See E Klein, ‘United Nations, Specialized Agencies’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law Vol. X (OUP 2012) 489–509. 8 Art. 57 UN Charter. 9 ibid. 10 Art. 63(1) UN Charter. 11 Art. 63(2) UN Charter. 12 Art. 64(1) UN Charter. 13 Report of the Preparatory Commission of the United Nations, Chapter VII: Privileges, immunities and facilities of the United Nations, Section 1: Recommendations concerning privileges and immunities, PC/20, 23 December 1945, Chapter VII, Section 1, 60, para 5. 14 UNGA Res 22 (I) D. 15 ibid. 16 ibid. 17 ibid. 7

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On this basis, the General Assembly instructed the UN Secretary-General ‘to open negotiations with a view to the re-consideration, in the light both of the General Convention adopted by the United Nations and of the considerations above, of the provisions under which the specialized agencies at present enjoy privileges and immunities’.18 After preliminary meetings in March 1947, the UN Secretary-General entered into consultations with representatives of the Specialized Agencies on a draft convention prepared by the UN Secretariat,19 during which agreement was reached that a single convention should apply to all Specialized Agencies which would still permit some flexibility for special privileges and/or immunities of individual agencies.20 Following a further meeting with representatives of the Specialized Agencies in July 1947 at Lake Success, which led to a number of amendments, the General Assembly, in September 1947, referred the question of the co-ordination of the privileges and immunities of the UN and the Specialized Agencies to the Sixth (Legal) Committee21 which in turn entrusted a sub-committee with further elaborating this issue. The sub-committee recommended the adoption of a single convention containing standard clauses applicable to all Specialized Agencies and providing ‘a complete statement of the privileges and immunities of the Specialized Agencies apart from any special agreement concluded with the country in which their seat is established’.22 On 15 November 1947, the sub-committee submitted the text of a draft convention— modelled on the General Convention—to the Sixth Committee for approval by the General Assembly.23 This draft convention contained nine annexes adapting its provisions to the Specialized Agencies which at that time had a relationship agreement with the UN,24 i.e. the International Labour Organization (ILO), the Food and Agriculture Organization of the United Nations (FAO), the International Civil Aviation Organization (ICAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD), the World Health Organization (WHO), the Universal Postal Union (UPU), and the International Telecommunication Union (ITU). The draft further provided that additional annexes, based on the standard clauses, could be recommended by the Economic and Social Council for any agency that would subsequently be brought into relationship with the UN.25 The convention was intended to become applicable to each Specialized Agency when the final text of the relevant annex

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ibid. See Report of the Secretary-General, Co-ordination of the Privileges and Immunities of the United Nations and Specialized Agencies, A/339, 20 August 1947, in Official Records of the Second session of the General Assembly, Plenary Meetings 13 November–29 November 1947, Annex 5, Vol. II, 279. 20 ibid. 21 General Assembly, Verbatim record of the 91st plenary meeting, held on 23 September 1947, in Official Records of the Second session of the General Assembly, Verbatim Record, 16 September–26 November 1947. 22 Sixth Committee of the General Assembly, Interim Report of the Sub-Committee on Privileges and Immunities, Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, UN-Doc. A/C.6/148, 29 September 1947, 2. 23 Sixth Committee of the General Assembly, Final Report of Sub-Committee 1, Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, UN-Doc. A/C.6/191, 15 November 1947, and UN-Doc. A/C.6/191/Corr.1, 19 November 1947. 24 ibid. at 3, para 5, and at 6, para 13. 25 ibid. at 4, para 8. 19

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had been adopted by the agency in question according to its constitutional procedure and was received by the UN Secretary-General.26 16 After endorsement by the Sixth Committee the report of the sub-committee was considered by the General Assembly on 21 November 1947, the General Assembly considered the report of the Sixth Committee27 and, by UNGA Res 179 (II), approved the Convention on the Privileges and Immunities of the Specialized Agencies.28 The Convention was then submitted to the Specialized Agencies for acceptance and to every Member of the UN and to every other State Member of one or more of the Specialized Agencies for accession. It entered into force on 2 December 1948 pursuant to Art. XI Section 44 when the Netherlands deposited its instrument of accession undertaking to apply the provisions of the convention to various Specialized Agencies. 17 The convention was registered with the UN Secretary-General on 16 August 1949 as No. 521 and published in the United Nations Treaty Series (UNTS).29 As of 31 December 2014, the Specialized Agencies Convention had 126 contracting parties.

D. Structure 18 The structure of the Specialized Agencies Convention largely follows that of the General Convention.30 In particular, the ‘standard clauses’31 (Arts. II–IX) which apply to each Specialized Agency ‘subject to any modifications set forth in the final or revised text of the annex relating to that agency . . . ’32 largely correspond to the provisions of the General Convention (Arts. I–VIII). 19 Among the most important differences is the omission of any language referring to experts on mission. While the General Convention contains a rather detailed section providing for functional privileges and immunities of experts on mission,33 the Specialized Agencies Convention is silent on this topic. 20 Such silence was not inadvertent. Rather, at the drafting stage it was considered that such a provision would not be required since not all Specialized Agencies would require experts on mission.34 However, it was expressly held that, should individual agencies be in need of experts, privileges, and immunities comparable to, but not exceeding, those conferred on experts on mission in the General Convention could be provided for in the

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ibid. at 3, paras 6 and 7. Report of the Sixth Committee to the General Assembly, Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, A/503, 20 November 1947. 28 UNGA Res 179 (II), 21 November 1947, ‘Co-ordination of the privileges and immunities of the United Nations and of the specialized agencies’. 29 33 UNTS 261. 30 See A Reinisch, Introduction to the General Convention. 31 Art. I Section 1(i) Specialized Agencies Convention. See R Pavoni, Commentary on Art. I Section 1 Specialized Agencies Convention for further reference. 32 Art. X Section 33 Specialized Agencies Convention. See B Moradi, Commentary on Art. X Section 33 Specialized Agencies Convention for further reference. 33 See R Bandyopadhyay and T Iwata, Commentary on Art. VI Sections 22–23 General Convention. 34 Cf. Sixth Committee of the General Assembly, Final Report of Sub-Committee 1, Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, UN-Doc. A/C.6/191, 15 November 1947, 12, para 30 (‘The Sub-Committee did not consider that anything corresponding to Article VI of the General Convention (Immunities for Experts who are not Officials on Missions) should be included in the standard clauses for the Specialized Agencies, on the ground that it could not be said that every Specialized Agency required immunities of this character.’). 27

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annexes.35 In fact, already some of the initial annexes contained express privileges and immunities for experts on mission, modelled according to the template of Art. VI Section 22 General Convention. Instead of a provision on experts on mission, the Specialized Agencies Convention 21 contains Art. VII on ‘Abuses of Privilege’ which finds no corollary in the General Convention.36 Art. VII Section 24 of the Specialized Agencies Convention was considered to be a 22 ‘suitable provision to deal with the case of possible abuse’. It contains a compromise formula establishing a procedure instead of permitting affected States to unilaterally withhold privileges and immunities in case of abuse.37 According to this new mechanism to prevent abuse, if a state party to this Convention considers that a Specialized Agency has been abusing a particular immunity, the matter is first discussed between its Government and the Specialized Agency, with a view to the adjustment of the matter by agreement. If this consultation does not lead to a solution acceptable to both sides, then the question whether there has been an abuse or not should be submitted in accordance with Section 32 to the International Court of Justice. . . . If the opinion of the Court showed that an abuse had been committed, then the complainant state would have the legal right to withhold the immunity which had been abused.38

Also Art. VII Section 25 of the Specialized Agencies Convention finds no equivalent 23 in the General Convention. It is modelled after a provision found in the UN–US Headquarters Agreement39 and seeks to strike a balance between the interest of the organization in ensuring that its officials and member States’ representative can participate in the work of the organization and the (host) State’s interest in requiring such persons to leave their territory in case of abuse of privileges and immunities and potentially also because they act undesirably. Art. VII Section 25 adopts a course inspired by the

35 ibid. (‘On the other hand, they did not exclude the possibility that individual Specialized Agencies might show good and sufficient causes for provisions giving immunities to such experts in their particular cases. It was thought however that, in this event, the actual privileges and immunities accorded should be somewhat less than those of Article VI of the General Convention, seeing that there is no doubt that the General Assembly in London, when it adopted this provision in the General Convention, had in mind experts sent on missions relating to peace and security in disturbed areas, who naturally would require more effective protection and greater immunities than would be required for experts sent by Specialized Agencies who would be dealing with more technical matters.’). 36 See A S Barros and C Ryngaert, Commentary on Art. VII Sections 24–25 Specialized Agencies Convention. 37 As recounted in the drafting history, an initial proposal to permit States to denounce privileges and immunities in case of abuse by a Specialized Agency was not adopted since such ‘wider proposal was thought by the majority to be open to a number of objections, including amongst others (1) that fact that, if it were adopted, the Convention for the Specialized Agencies would be hardly following the same lines as the United Nations Convention, which does not provide any such right of denunciation; and (2) the general principle that it was necessary that the Specialized Agencies should receive appropriate privileges and immunities had been accepted, and a state, by becoming party to this Convention in respect of a Specialized Agency, would by so doing have agreed that those therein provided were what was appropriate and necessary; (3) it seemed wrong in principle that a state should have the advantages of being a member of a Specialized Agency and yet deny it privileges and immunities which were necessary for its operation’.). Sixth Committee of the General Assembly, Final Report of Sub-Committee 1, Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, UN-Doc. A/C.6/191, 15 November 1947, 11, para 28. 38 ibid. 39 Art. 13 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.

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persona non grata regime of diplomatic law with regard to State representatives and by requiring high-level consultations between the (host) State and the agency concerned. According to the drafting history, Art. VII Section 25 ‘permits expulsion but subject to strong safeguards’.40 As mentioned earlier (see MN 18), the structure of the Specialized Agencies Convention largely follows that of the General Convention. Thus, it is not surprising that the issues addressed in the Specialized Agencies Convention correspond more or less to those covered in the General Convention. Because the Specialized Agencies Convention has always been intended to apply to not only one international organization, but to a flexible number of organizations that acquire Specialized Agency status it begins with Art. I (Definitions and Scope) laying down the specific scope of application of the Convention together with a number of definitions of terms.41 Art. II ( Juridical Personality) then specifies that the ‘juridical personality’ of Specialized Agencies includes various ‘capacities’ enjoyed by subjects of private law in the domestic legal orders of the agencies’ member States, such as entering into contracts, acquiring property and instituting legal proceedings.42 In Art. III (Property, Funds and Assets), the Convention provides for a wide immunity from legal process of the organizations as well as their property and assets. This provision has given rise to a number of disputes before national courts.43 Art. III further provides for the inviolability of the Specialized Agencies’ premises44 and archives.45 It also affords facilitations for the transfers of funds and currencies by Specialized Agencies.46 Finally, this article contains a number of tax and customs exemptions of the organizations themselves.47 Art. IV (Facilities in Respect of Communications) contains various provisions aimed at ensuring an efficient operation of the official communications of Specialized Agencies.48 Art. V (Representatives of Members) provides a number of privileges and immunities for member State delegates ‘while exercising their functions’ within the Specialized Agencies, such as immunity from personal detention, inviolability for all papers, documents, and personal baggage, the right to free correspondence, exemption from immigration and currency restrictions, and functional immunity from legal process in order to enable them to discharge their duties in complete independence.49 Similarly, Art. VI (Officials) accords a range of privileges and immunities to staff members of the Specialized Agencies. They comprise immunity from legal process in respect of all acts performed by them in their official capacity, tax privileges, exemptions

40 Cf. Sixth Committee of the General Assembly, Final Report of Sub-Committee 1, Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, UN-Doc. A/C.6/191, 15 November 1947, 12 para 29. 41 See R Pavoni, Commentary on Art. I Sections 1–2 Specialized Agencies Convention. 42 See N Blokker, Commentary on Art. II Section 3 Specialized Agencies Convention. 43 See G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention. 44 See R Pavoni, Commentary on Art. III Section 5 Specialized Agencies Convention. 45 See G L Burci, Commentary on Art. III Section 6 Specialized Agencies Convention. 46 See R Pavoni, Commentary on Art. III Sections 7–8 Specialized Agencies Convention. 47 See R S J Martha, Commentary on Art. III Sections 9–10 Specialized Agencies Convention. 48 See P Bachmayer, Commentary on Art. IV Sections 11–12 Specialized Agencies Convention. 49 See U Kriebaum, Commentary on Art. V Sections 13–17 Specialized Agencies Convention.

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from immigration restrictions and registration duties, privileges in respect of exchange facilities, and exemption from import duties.50 As already mentioned (see MN 22), Art. VII (Abuses of Privilege) contains procedural provisions how States can react to perceived abuses of privileges. They foresee consultations and even a reference to the ICJ for an advisory opinion on the matter pursuant to the Convention’s dispute settlement provisions.51 As a measure of last resort abuses of privilege may require the persons committing such abuse to leave the country where the abuse took place.52 In Art. VIII (Laissez-Passer) the Specialized Agencies Convention regulates the issuance of ‘laissez-passer’ to be recognized as ‘valid travel documents’. The Convention primarily envisages that officials of the Specialized Agencies should receive UN laissez-passer. However, the power to issue laissez-passer may be delegated to the Specialized Agencies.53 Art. VIII (Settlement of Disputes) obliges each Specialized Agency to provide for appropriate modes of dispute settlement in cases of its own immunity from legal process in disputes of a private law character as well as in cases of disputes involving its officials whose immunity has not been waived. It also foresees an advisory opinion procedure before the ICJ in case of differences concerning the application and interpretation of the General Convention.54 Art. X (Annexes and Application to Individual Specialized Agencies) specifies how the Convention applies to individual Specialized Agencies that may modify the standard clauses pursuant to annexes the Convention.55 The Convention’s Art. XI (Final Provisions) contains provisions on accession, entry into force, treaty revisions, and supplementary agreements.56 Finally, the annexes to the Convention contain specific provisions spelling out modifications with regard to each individual Specialized Agency.

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E. Conclusion The Specialized Agencies Convention started out with only a limited number of States 37 and organizations adhering to it. Since then, however, it has become a general point of reference laying down the most important privileges and immunities to be enjoyed by the Specialized Agencies.

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See A S Barros and C Ryngaert, Commentary on Art. VII Sections 18–23 Specialized Agencies Convention. 51 Art. VIII Section 32 Specialized Agencies Convention. 52 See A S Barros and C Ryngaert, Commentary on Art. VII Sections 24–25 Specialized Agencies Convention. 53 See M Schoiswohl and L Bello, Commentary on Art. VIII Sections 26–30 Specialized Agencies Convention. 54 See K Schmalenbach, Commentary on Art. IX Sections 31–32 Specialized Agencies Convention. 55 See B Moradi, Commentary on Art. X Sections 33–40 Specialized Agencies Convention. 56 See C Binder, Commentary on Art. XI Sections 41–49 Specialized Agencies Convention.

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II DEFINITIONS

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Definitions and Scope (Article I Sections 1–2 Specialized Agencies Convention) Riccardo Pavoni ARTICLE I DEFINITIONS AND SCOPE SECTION 1. In this Convention: (i) The words ‘standard clauses’ refer to the provisions of articles II to IX. (ii) The words ‘specialized agencies’ mean: (a) The International Labour Organisation; (b) The Food and Agriculture Organization of the United Nations; (c) The United Nations Educational, Scientific and Cultural Organization; (d) The International Civil Aviation Organization; (e) The International Monetary Fund; (f) The International Bank for Reconstruction and Development; (g) The World Health Organization; (h) The Universal Postal Union; (i) The International Telecommunications Union; and (j) Any other agency in relationship with the United Nations in accordance with Articles 57 and 63 of the Charter. (iii) The word ‘Convention’ means, in relation to any particular specialized agency, the standard clauses as modified by the final (or revised) text of the annex transmitted by that agency in accordance with sections 36 and 38. (iv) For the purposes of article III, the words ‘property and assets’ shall also include property and funds administered by a specialized agency in furtherance of its constitutional functions. (v) For the purposes of articles V and VII, the expression ‘representatives of members’ shall be deemed to include all representatives; alternates, advisers, technical experts and secretaries of delegations. (vi) In sections 13, 14, 15 and 25, the expression ‘meetings convened by a specialized agency’ means meetings: (1) of its assembly and of its executive body (however designated), and (2) of any commission provided for in its constitution; (3) of any international conference convened by it; and (4) of any committee of any of these bodies. (vii) The term ‘executive head’ means the principal executive official of the specialized agency in question, whether designated ‘Director-General’ or otherwise. SECTION 2. Each State party to this Convention in respect of any specialized agency to which this Convention has become applicable in accordance with section 37 shall accord to, or in connexion with, that agency the privileges and immunities set forth in the standard clauses on the conditions specified therein, subject to any modification of those clauses contained in the provisions of the final (or revised) annex relating to that agency and transmitted in accordance with sections 36 or 38.

A. Introduction Art. I Specialized Agencies Convention, entitled ‘Definitions and Scope’, is made up of 1 two sections. Section 1 provides seven definitions of key expressions found in the operative clauses of the Convention, while Section 2 establishes the basic obligation of PAVONI

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States Parties to accord the privileges and immunities laid down in the ensuing provisions in accordance with the modifications resulting from the annexes approved by each Specialized Agency and transmitted by it to the UN Secretary-General. 2 Thus, the purpose of Art. I Section 2 Specialized Agencies Convention is to clarify that the scope, extent, and substance of the obligations laid down by the Convention are not unlimited or identical for all parties. That scope and substance is bound to vary ratione materiae and ratione personae. Indeed, the various privileges and immunities recognized by the Convention are subject to the modifications that may be included in the individual annexes of the Specialized Agencies. In addition, and although this is not immediately apparent from the English text of Section 2 (see MN 65–6), States Parties have the right to select the specific agencies in respect of which they undertake to apply the Convention (as modified by the respective annexes).1 Unavoidably, a considerable variable geometry of the obligations set out by the Convention stems from this à la carte approach and machinery, something which magnifies the fragmentation and inherently bilateral nature of the law of international immunities. Yet, such a complex machinery was identified during the negotiations of the Convention as the best method for adequately taking into consideration the different nature, requirements, and pertinent practice of the Specialized Agencies, as well as for avoiding other legal techniques bound to produce even more fragmentation of the law (see MN 11–15). 3 There is no provision corresponding to Art. I in the General Convention. Insofar as the ‘scope clause’ in Section 2 is concerned, this is obvious. The General Convention was meant to apply only to the UN. There was therefore no principled need to provide for variations and modifications via annexes to the General Convention or otherwise, while the UN remained fully empowered to negotiate particular arrangements deviating therefrom in respect of the activities of its many organs, bodies, programmes, and conferences. 4 This also explains the absence from the General Convention of those provisions in the ‘definitions clause’ of Art. I Section 1 which are directly linked to the Specialized Agencies Convention’s machinery as sketched out above, namely the definitions of ‘standard clauses’ (Art. I Section 1(i)) and ‘Convention’ (Art. I Section 1(iii)). Of course, the meaning of ‘specialized agencies’ was equally irrelevant in the context of the General Convention (Section 1(ii)). Three further definitions involve ‘institutional’ notions relating to the structure and workings of the Specialized Agencies, i.e. those of ‘representatives of members’ (Art. I Section 1(v)), ‘meetings convened by a specialized agency’ (Art. I Section 1(vi)), and ‘executive head’ of an agency (Section 1(vii)). However, a provision located in the body of the General Convention (Art. IV Section 16) contains an almost identical definition of ‘representatives’ of UN members (see MN 45). On the other hand, the notions of ‘meetings’ and ‘executive head’, as applied to the UN and retained in the text of the General Convention,2 seem fairly unequivocal, while the insertion of model definitions in the Specialized Agencies Convention was regarded as necessary

1

See Art. XI Sections 43, 44, and 47 Specialized Agencies Convention. In the General Convention, the expression parallel to ‘meetings convened by a specialized agency’ is that of ‘conferences convened by the United Nations’ (Art. IV Sections 11–13), while the term ‘executive head’ is directly referred to the Secretary-General of the UN (see eg Art. V Sections 17, 20 and Art. VI Section 23), while at times broadened so as to encompass ‘Assistant Secretaries-General’ and ‘Directors’ (Art. V Section 19 and Art. VII Section 27). 2

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to give account of the peculiar requirements of, and institutional divergences among, the agencies. Ultimately, the only remarkable omission in the General Convention vis-à-vis Art. I 5 Section 1 Specialized Agencies Convention is that concerning the reach of the expression ‘property and assets’ as set out in Art. I Section 1(iv). While the purpose and interpretation of this provision are unclear, it indisputably stretches the meaning of ‘property and assets’ of the agencies and accordingly broadens the scope of the privileges and immunities attaching thereto (see MN 36–7). Nonetheless, this should not be taken to imply that the property and assets of the UN enjoy less protection as compared to those of the Specialized Agencies. Such an interpretation appears manifestly unreasonable and is flatly contradicted by the negotiating history of the Specialized Agencies Convention, which tells us that the immunities granted to the UN in the General Convention had to be considered, save exceptional circumstances, as the quantitative and qualitative outer limit of those affordable to the agencies. Therefore, the definition of ‘property and assets’ in Section 1(iv) should rather be regarded as a unique case of a clause in the Specialized Agencies Convention which clarifies the meaning of the provisions in the General Convention where the expression at stake appears.

B. Drafting History In order to understand the genesis of Art. I of the Specialized Agencies Convention,3 one 6 should recall that the Convention’s negotiations were driven by the necessity perceived by the relevant UN bodies—namely, the Preparatory Commission of the United Nations, the Sixth Committee of the General Assembly, the Sub-Committee on Privileges and Immunities of the United Nations, and the General Assembly itself—to bring about, as far as possible, the unification and co-ordination of the privileges and immunities enjoyed by the Specialized Agencies in the light of those accorded to the UN pursuant to the General Convention.4 On the other hand, it was clear since the beginning that such unification should not occur at the expense of the diversity of the functions, activities, and associated necessities of the agencies. As the General Assembly put it, ‘not all specialized agencies require all the privileges and immunities which may be needed by others, and . . . certain of these may, by reason of their particular functions, require privileges of a special nature which are not required by the United Nations itself ’.5 Thus, unification and respect for the diversity of the agencies operated as the two 7 countervailing objectives behind the negotiations and inevitably made them more complex. Indeed, the pertinent UN bodies and the Specialized Agencies involved in the negotiations in a consultative capacity expressed different opinions about the most appropriate legal technique capable of reconciling those objectives. The option of a 3 Other negotiating discussions involving Sections 1 and 2 are recalled later in correspondence to their specific provisions. 4 See UNGA Res 22(I) D of 13 February 1946, Co-ordination of the Privileges and Immunities of the United Nations and the Specialized Agencies (‘The General Assembly considers that there are many advantages in the unification as far as possible of the privileges and immunities enjoyed by the United Nations and the various specialized agencies.’). See also A Reinisch, Introduction to the Specialized Agencies Convention, MN 10. 5 UNGA Res 22(I) D of 13 February 1946, Co-ordination of the Privileges and Immunities of the United Nations and the Specialized Agencies.

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model convention to be recommended to each of the Specialized Agencies was rejected.6 It would have certainly preserved flexibility and a substantial scope for manoeuvre of the agencies, but at the same time legal predictability and harmonization would have remained a chimera. 8 Conversely, consensus soon coalesced around the option of a single convention of a binding nature which would be applicable, as a general rule, to all the Specialized Agencies.7 The feeling was widespread that this option would have greatly alleviated the work of national authorities, in particular parliaments, that were considering the ratification of conventions regarding the privileges and immunities of international organizations. A single convention would make it unnecessary for them to ‘examine and study a number of separate conventions’,8 because they would be enabled to ‘approve forthwith a general text covering the various Specialized Agencies’.9 9 However, the negotiating actors were divided over the exact method to be followed for that purpose. The Draft Convention circulated in August 1947 and elaborated by the Secretary-General in consultation with the (then existing) Specialized Agencies10 was much simpler than the legal framework emerging from the text finally adopted by the General Assembly on 21 November 1947. In particular, it did not envisage any draft annexes submitted for approval and modification to the agencies. Accordingly, there was nothing in the Draft resembling current Art. I Section 2. Indeed, the basic obligation of States Parties was simply ‘to apply the present Convention to all Specialized Agencies’,11 without prejudice to the power to single out the agencies actually covered by their accession.12 Flexibility and diversity would have been safeguarded by means of a sweeping savings clause for all the privileges and immunities accorded to each agency ‘in its basic instrument or by reason of the special nature of its functions or the location of its head office or regional offices’.13 10 This method also impacted upon the ‘definitions clause’ in Draft Section 1. Obviously, in the Secretariat’s Draft, that section did not contain the finally adopted definitions that are concerned with the legal technique of the ad hoc annexes outlining the actual privileges and immunities enjoyed by the individual agencies (i.e. the definitions of ‘standard clauses’ in Section 1(i) and ‘Convention’ in Section 1(iii)). Moreover, the definitions of ‘representatives of members’ and ‘executive head’ were incorporated into the body of the Draft Convention,14 whereas no clauses providing the meaning of ‘property and assets’ and ‘meetings convened by a specialized agency’ along the lines of current Section 1(iv) and (v) were included. Draft Section 1 envisaged the sole definition Sixth Committee of the General Assembly, Interim Report of Sub-Committee 1, ‘Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies’, UN-Doc. A/C.6/148 (29 September 1947) 1. 7 ibid. at 1; Report of the Secretary-General, ‘Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies’, UN-Doc. A/339 (20 August 1947) 2. 8 Report of the Secretary-General (n 7), at 3. 9 ibid. See also Interim Report of Sub-Committee 1 (n 6), at 1. 10 The text of this Draft Convention was annexed to the Report of the Secretary-General (n 7), at 7. 11 Section 36 of the Draft. 12 ibid. 13 Section 40 of the Draft. See also Section 4 of the Draft. The Secretary-General concluded that ‘[t]he draft Convention, while establishing the standard immunities needed by the various specialized agencies, at the same time makes it easier to define the special immunities required for discharging the particular functions of any of the organizations concerned’. See Report of the Secretary-General (n 7), at 6. 14 See, respectively, Draft Sections 17 and 18. 6

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of the term ‘specialized agency’ by referring back to Arts 57 and 63 UN Charter, and without naming—unlike current Section 1(ii)—the then existing agencies. In its Interim Report of 29 September 1947, the Sub-Committee on Privileges and Immunities announced ‘a certain change in the method’15 retained by the Secretariat’s Draft. It had unanimously decided that the new Draft Convention would be divided into two distinct parts: a general part covering the standard privileges and immunities of the Specialized Agencies (later to be known as the ‘standard clauses’) and a series of annexes— each pertaining to an agency—setting out those deviations from the general scheme rendered necessary by the individual requirements of the various agencies (a sort of ‘special clauses’ or ‘special privileges and immunities’).16 Accordingly, each agency would enjoy the privileges and immunities established by the general part of the Convention as modified by the agency’s annex.17 Thus formulated, the single convention was meant to be a ‘complete statement of the privileges and immunities of the Specialized Agencies, apart from any special agreements concluded with the country in which their seat is established’ (emphasis added).18 Indeed, in the Sub-Committee’s view, the main shortcoming of the Secretariat’s Draft was the above-mentioned savings clause for all other instruments concerning the privileges and immunities of the agencies. Such a clause left the problem of the fragmentation of the law intact, and possibly amplified it.19 However, this must be considered in the light of the other key innovation ventilated by the Sub-Committee in its Interim Report and conclusively endorsed in its Final Report of 15 November 1947.20 It decided that the agencies’ annexes, thus the corresponding part of the Convention in its entirety, had to be of a recommendatory nature only; that is, the UN—i.e. either the General Assembly or the Economic and Social Council—was merely entrusted with finalizing drafts of the annexes, while the agencies had to approve them in final form and retained the power to revise them in the future.21 The follow-up of these deliberations was a Draft Convention nearly identical to the final text approved by the General Assembly on 21 November 1947.22 Mostly as a result of the legal technique espoused by the Sub-Committee and endorsed by the Sixth Committee,23 such Draft contained the lengthy ‘definitions clause’ of Section 1 and the

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Interim Report of Sub-Committee 1 (n 6), at 2. ibid. 17 This principle is now sanctioned by Sections 1(iii) and 2. 18 Interim Report of Sub-Committee 1 (n 6), at 2. 19 ibid. (‘this draft single convention did not avoid the necessity of referring to a number of instruments in order to ascertain the exact scope of the privileges of each individual Specialized Agency’). 20 Sixth Committee of the General Assembly, Final Report of Sub-Committee 1, ‘Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies’, UN-Doc. A/C.6/191 (15 November 1947). 21 Interim Report of Sub-Committee 1 (n 6), at 3; Final Report of Sub-Committee 1 (n 20), at 3–4, paras 5–7. 22 This Draft was already circulated on 12 November 1947. See Sixth Committee of the General Assembly, Appendix to the Report of the Rapporteur on the Unification of the Privileges and Immunities of Specialized Agencies Brought into Relationship with the United Nations, in Accordance with the Provisions of Articles 57 and 63 of the Charter, UN-Doc. A/C.6/189 (12 November 1947). It was later annexed to the Final Report of the Sub-Committee and submitted to the Sixth Committee for approval, Final Report of Sub-Committee 1 (n 20), at 21. 23 See Report of the Sixth Committee to the General Assembly, ‘Co-ordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies’, UN-Doc. A/503 (20 November 1947). 16

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new formulation of the basic obligation of States Parties to the Convention, i.e. the ‘scope clause’ of Section 2. 15 With hindsight, it is difficult to see why the overhaul of the approach endorsed by the Secretariat’s Draft was really necessary and why the latter was regarded as entailing more legal unpredictability and fragmentation as compared to the somewhat Machiavellian method adopted by the final text of the Convention. The problem of the savings clause for the constitutional instruments of the agencies could have been addressed by simply replacing that provision with the current consistency clause in Art. X Section 40.24 Moreover, the final text also retains a savings clause for seat agreements and supplemental agreements ‘extending or curtailing the privileges and immunities’ (emphasis added)25 contemplated by the Convention. An unconvincing reason for conferring a hortatory nature to the Convention’s annexes was that those States which were members of the agencies, but not of the UN, would have a say in the drafting process by participating in the meetings of the agencies charged with approving the final texts of the annexes themselves. In the drafters’ view, this would overcome any legitimacy-based objection to the conclusion of the Convention by means of a General Assembly resolution, rather than by an ad hoc (costly) conference convening all the members of the Specialized Agencies.26 16 Another interesting aspect emerging from the drafting process of the Specialized Agencies Convention is that Art. I (as well as Arts. X and XI) was regarded as containing ‘formal provisions’27 of a ‘definitive’28 nature. The adjective ‘definitive’ was meant to distinguish such provisions, as well as the standard clauses of Arts. II–IX, from those of the draft annexes appended to the Convention. As said, the latter were by definition considered to be of a provisional, tentative and recommendatory nature (cf. Art. X Section 35), i.e. each agency would be empowered to modify the terms of the drafts in order to adapt them to its specific structures, functions, and needs (for instance, by extending the ratione personae or ratione materiae scope of the privileges and immunities set out in the standard clauses). Eventually, each agency would transmit the final text of ‘its’ annex, i.e. that including the modifications approved by the agency itself, to the UN Secretary-General (Art. X Section 36). 17 Thus, the term ‘definitive’ was not used as a synonym for ‘not subject to modification’. This is obvious for the standard clauses which are essentially open to adaptation and amendment through the technique of the final annexes. But in practice the same applies at least to certain of the definitions set out in Section 1, such as that of ‘representatives of members’ (Art. I Section 1(v)) and ‘executive head’ (Art. I Section 1(vii)) of a Specialized Agency. By broadening the categories of persons entitled to the privileges and immunities granted to representatives of members and executive heads pursuant to the standard clauses, the final annexes applicable to a number of agencies in fact modify the pertinent definitions in Section 1 (see MN 49–50, 58). Accordingly, also by reference to Art. I Section 1, the adjective ‘definitive’ should preferably be taken to mean ‘binding as 24

See B Moradi, Commentary on Art. X Section 40 Specialized Agencies Convention, for further reference. Art. X Section 39 Specialized Agencies Convention. See B Moradi, Commentary on Art. X Section 39 Specialized Agencies Convention, for further reference. 26 See Interim Report of Sub-Committee 1 (n 6), at 3; Final Report of Sub-Committee 1 (n 20), at 3–4, paras 6 and 9. 27 Final Report of Sub-Committee 1 (n 20), at 3, para 5. 28 ibid. para 6. 25

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modified’, thereby distinguishing the provisions in question from the inherently hortatory draft annexes.

C. Key Elements a) Section 1 ‘The words “standard clauses” refer to the provisions of articles II to IX’ Art. I Section 1(i) clarifies that the words ‘standard clauses’ refer to the provisions of articles II to IX’ of the Convention, namely to the provisions on ‘Juridical Personality’ (Art. II), ‘Property, Funds and Assets’ (Art. III), ‘Facilities in Respect of Communications’ (Art. IV), ‘Representatives of Members’ (Art. V), ‘Officials’ (Art. VI), ‘Abuses of Privilege’ (Art. VII), ‘Laissez-Passer’ (Art. VIII), and ‘Settlement of Disputes’ (Art. IX). Therefore, in addition to Art. I itself, only Art. X (‘Annexes and Application to Individual Specialized Agencies’), Art. XI (‘Final Provisions’), and the annexes to the Convention do not constitute standard clauses. As mentioned earlier, the expression ‘standard clauses’ was adopted during the final stages of the negotiations as a term of art to refer to the general chapter of the Convention covering the ‘standard privileges and immunities’29 of the Specialized Agencies as opposed to the ‘special immunities’30 made necessary by their particular functions and contemplated by the individual annexes to the Convention approved by the agencies themselves. Accordingly, insofar as their legal nature is concerned, standard clauses are, in general, conditionally binding, i.e. they are binding as such only if and to the extent that they have not been modified by the agencies’ annexes, the latter being inherently hortatory. Thus understood, they establish obligations on the States Parties, but their contents are also ‘binding’ for the agencies: indeed, in order for the Convention to become applicable to the individual agencies, the latter must inform the Secretary-General of their ‘acceptance’31 of the standard clauses and of the undertaking to ‘give effect’32 to those sections envisaging specific duties and requirements upon the agencies themselves. The negotiating history of the Convention also makes it clear that the Convention’s standard clauses, together with the relevant annex, had to be considered ‘a complete statement of all those rights of each Specialized Agency, which can be said to come under the general heading of “Privileges and Immunities”’,33 and that, in order to make sense of ‘that otherwise undefined expression’,34 the General Convention was used as a primary reference and the constitutive treaties of the agencies including provisions on status, privileges, and immunities as a secondary reference. As it turned out, the Convention’s standard clauses normally mirror the provisions of the General Convention, while the pertinent norms of the agencies’ constitutive treaties had a remarkable impact on the annexes.

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Interim Report of Sub-Committee 1 (n 6), at 2. Report of the Secretary-General (n 7), at 6. 31 Art. X Section 37 Specialized Agencies Convention. See B Moradi, Commentary on Art. X Section 37 Specialized Agencies Convention, for further reference. 32 Art. X Section 37 Specialized Agencies Convention. 33 Final Report of Sub-Committee 1 (n 20), at 5, para 12. 34 ibid. 30

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It should be noted, however, that not all standard clauses in fact relate to the substance of the privileges and immunities enjoyed by the agencies. Art. VII on abuses of privilege and Art. IX on settlement of disputes are more of a procedural nature, insofar as they are concerned with the methods, steps, and requirements that must be observed in the case of disputes concerning the interpretation or application of the Convention, as well as disputes of a private character involving the agencies or their officials. These articles appear more akin to various provisions included in the non-standard clauses of Arts. X and XI. In view of their peculiar object and purpose, it is questionable whether they are indeed subject to alteration by means of the Convention’s annexes. It would be odd, for instance, if an agency purported to exclude or modify its duty to provide for appropriate modes of settlement of ‘private’ disputes as per Section 31(a) or its duty to consult with the States concerned where an alleged abuse of privileges and immunities has occurred (Section 24). As a matter of fact, no Convention’s annex impinges upon these two key duties of the agencies.35 ‘The words “specialized agencies” mean . . . ’

23 While the Secretariat’s Draft of August 1947 contained a generic definition of Specialized Agency referring back to Arts. 57 and 63 UN Charter,36 the Sub-Committee on Privileges and Immunities decided to mention by name the nine organizations which had participated in the negotiations and accordingly appended nine draft annexes relating to each of them to the final Draft Convention. These included four organizations which had already concluded a relationship agreement with the UN, thus being fully entitled to the status of ‘specialized agency’ under Art. 57 of the UN Charter, and five organizations which were eventually granted that status by the General Assembly on the eve of the adoption of the Convention on 21 November 1947. 24 It is no coincidence, therefore, that the former group of organizations is listed first in Art. I Section 1(ii). These are: (i) (ii) (iii) (iv) 25

the International Labour Organisation; the Food and Agriculture Organization of the United Nations; the United Nations Educational, Scientific and Cultural Organization; and the International Civil Aviation Organization.

The list continues with the five organizations whose relationship agreements with the UN were approved by General Assembly Resolution of 15 November 1947, namely: (i) (ii) (iii) (iv) (v)

the International Monetary Fund; the International Bank for Reconstruction and Development; the World Health Organization; the Universal Postal Union; and the International Telecommunication Union.

35 See, by contrast, the IMF, IBRD, and IFC Annexes, which modify Art. IX Section 32 Specialized Agencies Convention. See K Schmalenbach, Commentary on Art. IX Section 32 Specialized Agencies Convention. 36 Draft Section 1, annexed to the Report of the Secretary-General (n 7), at 7 (‘In this Convention the term “specialized agency” means an agency referred to in Article 57 of the Charter, which has been brought into relationship with the United Nations in accordance with the provisions of Article 63 of the Charter.’).

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‘Any other agency in relationship with the United Nations in accordance with Articles 57 and 63 of the Charter’ The negotiating parties were well aware that, in accordance with Art. 59 of the UN 26 Charter, new Specialized Agencies were bound to be created after 1947 and appropriately inserted a letter (j) in Art. I Section 1(ii), according to which the term ‘specialized agencies’ also refers to ‘[a]ny other agency in relationship with the United Nations in accordance with Articles 57 and 63 of the Charter’. Insofar as such unspecified agencies are concerned, Art. X Section 35 entrusts the Economic and Social Council of the United Nations with the task of adopting and transmitting ad hoc draft annexes to them. For present purposes, it would be sufficient to recall that the notion of ‘specialized 27 agency’, strictly understood, attaches to those organizations established by States, which have broad ‘universal’ competence in the economic, social, cultural, educational, health, and related fields and which have entered into a relationship agreement with the UN defining their respective rights and duties (Art. 57 UN Charter). While remaining autonomous entities with a distinct legal personality, Specialized Agencies are in many respects subject to the authority of the General Assembly and the Economic and Social Council of the UN. This explains why organizations working in close co-operation (also) with the Security Council, such as especially the IAEA, have never been formally recognized as Specialized Agencies.37 Art. I Section 1(ii)(j) has thus paved the way for the applicability of the Convention to 28 the Specialized Agencies created after 21 November 1947, thereby dispensing with the need to revise the Convention itself on any such occasion. Chronologically, the unnamed Specialized Agencies to which the Convention has become applicable in accordance with its pertinent provisions are: (i) the International Refugee Organization (Annex X);38 (ii) the World Meteorological Organization (Annex XI);39 (iii) the Intergovernmental Maritime Consultative Organization (Annex XII), renamed as the International Maritime Organization in 1975;40 (iv) the International Finance Corporation (Annex XIII);41 (v) the International Development Association (Annex XIV);42 (vi) the World Intellectual Property Organization (Annex XV);43 (vii) the International Fund for Agricultural Development (Annex XVI);44

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For further detail on the notion of a Specialized Agency, see the extensive commentaries by W Meng, ‘Article 57’, in B Simma et al (eds), The Charter of the United Nations. A Commentary Vol. II (3rd edn, OUP 2012) 1611; W Meng, ‘Article 63’, in B Simma et al (eds), The Charter of the United Nations. A Commentary Vol. II (3rd edn, OUP 2012) 1697. 38 The final text of Annex X was received by the UN Secretary-General on 4 April 1949. A few years later, this organization was dissolved by decision of its General Council, see Resolution No 108 of 15 February 1952. 39 The final text of Annex XI was received by the UN Secretary-General on 29 December 1951. 40 The original final text of Annex XII was received by the UN Secretary-General on 12 February 1959. 41 The final text of Annex XIII was received by the UN Secretary-General on 22 April 1959. 42 The final text of Annex XIV was received by the UN Secretary-General on 15 February 1962. 43 The final text of Annex XV was received by the UN Secretary-General on 19 October 1977. 44 The final text of Annex XVI was received by the UN Secretary-General on 16 December 1977. PAVONI

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(viii) the United Nations Industrial Development Organization (Annex XVII);45 and (ix) the United Nations World Tourism Organization (Annex XVIII).46 This implies that the Convention is applicable to all of the seventeen currently existing Specialized Agencies of the UN. ‘The word “Convention” means, in relation to any particular specialized agency, the standard clauses as modified by the . . . annex transmitted by that agency . . . ’ 29 Art. I Section 1(iii) provides that, when referred or applied to a specific Specialized Agency, ‘Convention’ must be understood as ‘the standard clauses as modified’ by the annex transmitted to the UN Secretary-General by that agency in accordance with Art. X Sections 36 (final annexes) and 38 (revised annexes). 30 Accordingly, while the ‘Convention proper’ (i.e. in its entirety) provides the general framework, there are in fact various potential ‘conventions’, each pertaining to an individual agency in its relations with States Parties which have accepted the application of the ‘Convention’ to the agency in question (Art. XI Section 43). 31 Art. I Section 1(iii) announces, by way of a definition, the basic machinery of the Convention, namely the technique of the annexes relating to the individual agencies, which form an integral, essential part thereto and qualify the privileges and immunities actually enjoyed by the agencies themselves. Many procedural issues concerning these annexes are then spelled out by Art. X. 32 Therefore, Art. I Section 1(iii) anticipates the principle emerging from the general obligation laid down in Art. I Section 2, i.e. that the States Parties must afford to the Specialized Agencies the privileges and immunities established by the standard clauses read in conjunction with the relevant annexes. 33 It is open to question whether a definition covering what ‘Convention’ means vis-à-vis any individual agency was really necessary. The basic point made by that definition is frequently reiterated by the Convention47 and the ambivalence of the term does not appear to engender significant interpretative uncertainties. Nonetheless, in view of the quite peculiar legal technique followed and its unquestionable innovative nature at the time, the drafters probably thought that the insertion of a definition clause in the opening section of the Convention was useful to dispel any doubt into the interpretation of the ensuing provisions. 34 By contrast, the definition at issue does not mention Arts. I, X, and XI, thereby leaving open the question as to whether such non-standard clauses form part of the legal regime ‘accepted’ by the agencies pursuant to the Convention. This was probably an unintended result of the decision of the drafters to retain a definition of ‘Convention in relation to any particular specialized agency’ in Art. I Section 1. As such, this decision should not be taken to imply that the Convention’s framework ‘accepted’ by the agencies does not include Art. I or the pertinent provisions of Arts. X and XI.48

The final text of Annex XVII was received by the UN Secretary-General on 15 September 1987. The final text of Annex XVIII was received by the UN Secretary-General on 30 July 2008. 47 See, most clearly, Art. X Section 33 Specialized Agencies Convention. 48 Cf. for instance, Art. X Section 37, which mentions the undertaking of the agencies to ‘give effect’, inter alia, to Art. XI Sections 42 and 45. 45 46

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‘For the purposes of article III, the words “property and assets” shall also include property and funds administered by a specialized agency in furtherance of its constitutional functions’ Art. I Section 1(iv) provides that, ‘[f]or the purposes of article III’, the words ‘property and 35 assets’ include ‘property and funds administered by a Specialized Agency in furtherance of its constitutional functions’. This definition is therefore meant to inform the meaning of the provisions in Art. III where those words appear. Accordingly, and most importantly, the definition at stake relates to the immunity of the ‘specialized agencies, their property and assets . . . from every form of legal process’49 (emphasis added), as well as to the immunity of the ‘property and assets of the specialized agencies . . . from search, requisition, confiscation, expropriation and any other form of interference’50 (emphasis added). It also relates to the exemptions from taxation set out by Art. III Section 9 with regard to the ‘specialized agencies, their assets, income and other property’51 (emphasis added). Finally, there appears to be no sensible reason precluding its connection to the provision on financial facilities (or immunity from financial controls) in Section 7, which applies to ‘funds, gold or currency of any kind’ held by the agencies. On the contrary, Section 1(iv) does not inform the meaning of Art. II Section 3, on the juridical personality of the Specialized Agencies, i.e. vis-à-vis the capacity of the agencies ‘to acquire and dispose of immovable and movable property’ (emphasis added).52 Section 1(iv) surfaced in the final draft of the Convention elaborated by the Sub- 36 Committee on Privileges and Immunities. The negotiating record of the Convention does not shed any light on the reasons at the root of its insertion. This is unfortunate, as it is arguably the most important clause contained in Art. I Section 1. It clearly broadens the scope of key immunities and exemptions enjoyed by the property of the agencies, first and foremost its immunity from legal process and from any form of executive, administrative, judicial, or legislative interference. This ‘broadening effect’ is made evident by certain provisions in the agencies’ head- 37 quarters agreements which, by acting upon and developing Art. I Section 1(iv), have specified the meaning of ‘property and assets’ for the purposes of the relevant privileges and immunities. Art. I Section 1(l) of the FAO–Italy Headquarters Agreement is exemplary in this respect. It stipulates that, as used in the provisions of the agreement on the 49

Art. III Section 4 Specialized Agencies Convention. See also G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention. 50 Art. III Section 5 Specialized Agencies Convention. Obviously, the definition also relates to the inviolability of the archives and documents of the agencies as a chiefly important category of property of the agencies (Section 6). In this connection, it is however important to note that, verbatim, the scope of application of Section 6 is broader than that of the other pertinent sections in Art. III, as it refers to ‘all documents belonging to [the specialized agencies] or held by them’ (emphasis added). See also R Pavoni, Commentary on Art. III Section 5 Specialized Agencies Convention. 51 The fact that in Art. III Section 9 the words ‘property’ and ‘assets’ are not used jointly does not preclude their interpretation in the light of Section 1(iv). The latter refers to ‘words’, thus not to an integral ‘expression’ to be found as such in the text of Art. III. On the other hand, Section 1(iv) has no correlation to Section 10, as the latter deals with purchases of property by the agencies. See also R Martha, Commentary on Art. III Section 9 Specialized Agencies Convention. 52 But compare to Art. I Section 1(l) 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, and to Section 1(c) of the Agreement between the International Civil Aviation Organization and the Government of Canada Regarding the Headquarters of the International Civil Aviation Organization, 14 April 1951, 96 UNTS 155. PAVONI

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personality and property of the FAO, ‘the expression “property” . . . means all property, including funds and assets, belonging to FAO or held or administered by FAO in furtherance of its constitutional functions, and all income of FAO’ (emphasis added).53 Insofar as organizations related to the UN are concerned, a nearly identical provision can be found in the IAEA–Austria Headquarters Agreement.54 A further telling example is offered by the IMO–United Kingdom Headquarters Agreement.55 Art. 3(4) of the Agreement first establishes that ‘[t]he immunity conferred by Article III, Section 5, of the [Specialized Agencies] Convention shall extend to the means of transport of the Organization’,56 then specifies that ‘[m]eans of transport which the Organization hires or borrows shall be immune from search, requisition, confiscation or expropriation’ (emphasis added),57 and concludes with an ambiguous sentence, according to which ‘[t]he Organization shall identify as such means of transport being used for official purposes’.58 This final sentence seems to allude to the possibility that IMO may avail itself of means of transport for private purposes. 38 There are two aspects of Art. I Section 1(iv) which help to clarify its intended aim and function. The first, apparent aspect is that, by referring to property ‘administered’ by a Specialized Agency, this section wants to clarify that it is unnecessary that title to the assets at the disposal of the agencies be formally vested in the latter in order to trigger, inter alia, the application of the rule of immunity from measures of constraint. That rule is equally applicable when the agencies, instead of being owners stricto sensu as a narrow reading of the pertinent sections of Art. III would dictate, simply administer, hold, borrow, or lease certain assets. 39 The second aspect, however, is that Art. I Section 1(iv) makes clear that property administered by an agency enjoys immunities and exemptions only as long as it is so administered ‘in furtherance of its constitutional functions’. This is one of the rare references in the Convention to the functional necessity criterion,59 which operates here in the sense that, in order to benefit from the relevant privileges and immunities, the assets at stake (i.e. verbatim, only those administered by the agencies) must be shown to be necessary for the fulfilment of the official functions of the agencies. 40 The question is whether this functional necessity test only applies to property administered by the agencies or also to that which is formally owned by them. Practice does not

53

See also, mutatis mutandis, Art. I Section 1(h) Agreement between the Government of the Italian Republic and the International Fund for Agricultural Development Regarding the Provisional Headquarters of the Fund, 26 July 1978, which, however, must be read in conjunction with para 15 of the Interpretative Note Relating to the Agreement on the Provisional Headquarters of the International Fund for Agricultural Development between the Italian Government and the International Fund for Agricultural Development. Para 15 establishes that the property of IFAD covered by immunity is exclusively that belonging to it, or held by it or by others on its behalf, directly intended for the exercise of the constitutional functions of IFAD. Although the exact meaning of this provision is unclear, its purpose is undoubtedly that of qualifying the definition given in Section 1(h) and thereby the associated immunities. 54 Section 1(p) Agreement between the International Atomic Energy Agency and the Republic of Austria Regarding the Headquarters of the International Atomic Energy Agency, 11 December 1957, 339 UNTS 236. 55 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Inter-Governmental Maritime Consultative Organization Regarding the Headquarters of the Organization, 28 November 1968, 677 UNTS 3. 56 ibid. Art. 3(4). 57 ibid. 58 ibid. 59 See A Reinisch, Introduction to the Specialized Agencies Convention, MN 10. PAVONI

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provide an unequivocal answer. The former option is supported, in the first place, by the wording of Art. I Section 1(iv) itself, which uses the expression ‘shall also include’. This seems to imply a conferral of immunities on a category of property which is additional and distinct from that envisaged by Art. III. It is also supported by the broad wording of most of the provisions in headquarters agreements recalled earlier, and—in the clearest terms— by the WIPO–Switzerland Headquarters Agreement.60 The latter provides that immunity from measures of constraint attaches to any ‘biens, propriété de l’Organisation ou utilisés par l’Organisation à ses fins, qu’ils soient ou non sa propriété’ (emphasis added).61 Thus, immunity shields either property owned by WIPO or property used by it for its (official) purposes. On the other hand, certain significant elements of practice militate in favour of the 41 option according to which all the property of the Specialized Agencies must be deemed necessary, at the relevant critical date, for the accomplishment of official purposes. In addition to the Interpretative Note attached to the IFAD–Italy Headquarters Agreement,62 one of the reservations made by France upon its accession to the Convention in 2000 reads as follows: ‘Only property, funds and assets belonging to agencies, administered by them and earmarked for the functions assigned to them under the agreements by which they were established, and to which France has acceded, shall enjoy the privileges and immunities provided for in the Convention’ (emphasis added).63 Although it is not explicitly indicated, the reservation clearly relates to all the provisions in the Convention which deal with the property, funds, and assets of the agencies and, accordingly, sheds light on the interpretation of Art. I Section 1(iv) accepted by the reserving State. Indeed, at the very least it implies that the qualification ‘in furtherance of its constitutional functions’ attaches to all property at the disposal of the agencies, i.e. first and foremost, to that belonging to them.64 It is important to note that, unlike other famous cases,65 this reservation went unchallenged when France deposited its instrument of accession with the UN Secretary-General and that, subsequently, no objections whatsoever from other States Parties have been recorded. These circumstances strongly advocate a presumption of consistency of the reservation with the object and purpose of the Convention. The interpretation, according to which all assets of the agencies—irrespective of the 42 type and degree of the latter’s proprietary interest—are entitled to privileges and immunities provided that they are used for the agencies’ official purposes, appears reasonable. To a 60 Agreement between the Swiss Federal Council and the World Intellectual Property Organization Determining the Legal Status of that Organization in Switzerland, 9 December 1970 (published in the Swiss Law Gazette as Abkommen zwischen dem Schweizerischen Bundesrat und der Weltorganisation für geistiges Eigentum zur Regelung des rechtlichen Statuts dieser Organisation in der Schweiz, abgeschlossen am 9. Dezember 1970, in Kraft getreten am 26. April 1970, AS 1971 293, 0.192.122.23). 61 ibid. Art. 5(2). Although it is not relevant for current purposes, it should be recalled that, in 1970, WIPO was not yet a Specialized Agency of the UN, which it became in 1974. See also A Reinisch, Commentary on Annex XV (WIPO) Specialized Agencies Convention, for further reference. 62 See n 53. 63 The text of the reservation is available online at last accessed 20 April 2015. 64 The reservation is not a model of clarity. It may also be read as implying that the reserving State will grant immunities and exemptions only to the property belonging to the agencies and administered by them. If this is correct, then the reservation would mean that France does not accept Art. I Section 1(iv) in its entirety. 65 Such as especially that involving the 1952 Italian reservation to Art. III Section 4 Specialized Agencies Convention. See G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention, MN 40ff.

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certain extent, it offsets the glaring asymmetry existing between the immunities enjoyed by foreign States with regard to their (and only their) property66 and that enjoyed by the Specialized Agencies with regard to all the property, funds, and assets which they can dispose of. In addition, it is well-known that functional necessity is a particularly elusive notion which, in the great majority of cases, does not represent a serious obstacle to the recognition of immunities and privileges in favour of international organizations.67 ‘“[R]epresentatives of members” shall be deemed to include all representatives; alternates, advisers, technical experts and secretaries of delegations’ 43 Art. I Section 1(v) provides a definition of ‘representatives of members’ aimed at clarifying which persons enjoy the privileges and immunities conferred by Art. V and, similarly to the officials of the Specialized Agencies, are subject to the procedures envisaged by Art. VII in the case of abuses of privilege. 44 This definition lacks detail and is partly tautological, as it refers, in the first place, to ‘all representatives’ of delegations of members of Specialized Agencies at meetings convened by the agencies (cf. Art. V Section 13). Other than representatives stricto sensu, the definition broadly covers ‘alternates, advisers, technical experts and secretaries’ of such delegations. 45 Art. I Section 1(v) reproduces almost verbatim a provision included in the corresponding part of the General Convention devoted to the privileges and immunities of the representatives of Members of the United Nations, namely Art. IV.68 The different location of the provision in the General Convention is due to the absence in that Convention of a preliminary section on ‘definitions’ along the lines of Art. I Section 1 of the Specialized Agencies Convention (see MN 4). According to Art. IV Section 16 General Convention, the term ‘representatives’ attaches to ‘all delegates, deputy delegates, advisers, technical experts and secretaries of delegations’.69 There exists, therefore, very little terminological variation between this section and Art. I Section 1(v) Specialized Agencies Convention, so that, on a general level, their interpretation ought to be the same. 46 Nevertheless, it should be recalled that the definition in the General Convention has wider implications, because that Convention not only affords privileges and immunities to representatives of Members to ‘conferences convened by the United Nations’, but also, and in the first place, to representatives to the ‘principal and subsidiary organs of the United Nations’.70 Thus, differently from the Specialized Agencies Convention which, on a narrow reading, only deals with ad hoc representatives at meetings held by the agencies, the definition in the General Convention squarely covers permanent delegations of members to the UN (but see MN 49–50, 53). 47 Indeed, as emerging from the travaux préparatoires of the Specialized Agencies Convention, the status of permanent delegates of members of the agencies was regarded as a subject suitable for detailed treatment in the special agreements concluded by an agency 66 Arts. 18–21 United Nations Convention on Jurisdictional Immunities of States and Their Property 2004, UNGA Res 59/38, 2 December 2004 (not yet in force). As its title suggests, this Convention only applies to property formally owned by States, without prejudice to exceptional cases (especially that involving ships owned or operated by a State, cf. Art. 16 of the Convention). 67 See A Reinisch, Commentary on Art. II Section 2 General Convention, MN 13ff. 68 See U Kriebaum, Commentary on Art. IV Sections 11–16 General Convention. 69 See ibid. 70 Art. IV Section 11 General Convention.

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with the State in which its headquarters or regional offices were located (see Art. X Section 39 of the Convention). For instance, in its 1947 Final Report to the Sixth Committee of the General Assembly, the Sub-Committee on Privileges and Immunities noted that ‘[i]t would be natural for the position of representatives of Governments accredited permanently to Specialized Agencies to be dealt with in special agreements made with the country in which the seat of the agency is situated’.71 Similarly, faced with observations about possible misunderstandings resulting from the 48 expression ‘secretaries of delegations’ as a category included in the definition of ‘representatives of members’ in Art. I Section 1(v), the Sub-Committee pointed out that that expression only ‘meant diplomatic secretaries and that clerical personnel were not covered by this definition’;72 the position of the latter personnel could conveniently be considered ‘in connection with special agreements made by the Specialized Agencies with the countries in which their headquarters or regional offices are located’.73 For these reasons, the expression ‘representatives of members’ in Art. I Section 1(v) 49 should, in and of itself, be interpreted narrowly. However, as previously anticipated, and leaving aside the permutations of this issue in other treaty settings, that requirement of a narrow interpretation has in the first place been superseded by certain final annexes approved by the Specialized Agencies in accordance with the Convention. Such annexes have the effect of broadening the definition at stake. In particular, they extend the provisions of the Convention on the representatives of members to: (i) ‘the employers’ and workers’ members and deputy members of the Governing Body of the International Labour Office and their substitutes’;74 (ii) ‘the Chairman of the Council of the Organization and . . . the representatives of associate members’;75 (iii) ‘the President of the Conference and members of the Executive Board of the Organization, their substitutes and advisers’;76 (iv) ‘persons designated to serve on the Executive Board of the Organization, their alternates and advisers’77 and ‘representatives of associate members participating in the work of the Organization’;78 and (v) ‘representatives of Associate Members participating in the work of the Organization’.79 Notably, the UNWTO Annex accords certain privileges also to the representatives of 50 Affiliate Members of the Organization, that is ‘international bodies, both intergovernmental and non-governmental, concerned with specialized interests in tourism’,80 as well as ‘commercial bodies and associations whose activities are related to the aims of the

71

Final Report of Sub-Committee 1 (n 20), at 5, para 11. ibid. at 6, para 15. The notion of ‘diplomatic secretaries’ was probably meant to refer to personal secretaries of heads and other senior members of delegations bound by special duties of trust and confidentiality. 73 ibid. 74 ILO Annex, para 1. 75 FAO Second Revised Annex, para 1. 76 UNESCO Annex, para 1. 77 WHO Third Revised Annex, para 1. 78 ibid. para 3. 79 UNWTO Annex, para 1. 80 Art. 7(1) Statutes of the World Tourism Organization, adopted on 27 September 1970, 985 UNTS 339. 72

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Organization or fall within its competence’.81 Only limited voting and participating rights vis-à-vis the workings of the UNWTO are given to these entities and institutions, which may well be of a private and business-oriented nature. Nevertheless, their representatives, while not afforded immunities stricto sensu, do enjoy certain benefits with respect to the processing of visa applications and ‘speedy travel’,82 and must be granted ‘[a]ll facilities in order to safeguard the independent exercise of their official functions’ (emphasis added).83 51 In other words, some Specialized Agencies saw fit to broaden the category of individuals covered by the privileges and immunities of representatives of members, by including both persons who by no means could claim the latter status but were deemed equally entitled to the relevant protections in accordance with the agency’s peculiar structure (this is the case of the ILO and, to a more limited extent, of the UNWTO), and persons who cannot be considered as representatives of members, because they have accepted institutional posts usually involving duties of independence and impartiality or have been appointed in their personal capacity (thus regardless of their nationality and affiliation with a national delegation). ‘“[M]eetings convened by a specialized agency” means . . .’ 52 The meaning of ‘meetings convened by a specialized agency’ at which ‘representatives of members’ shall enjoy the privileges and immunities set out by the Convention is spelled out by Art. I Section 1(vi). This provides a broad definition covering meetings of (i) an agency’s assembly and executive body, ‘however designated’; (ii) any commission envisaged in the agency’s constitutive treaty; (iii) any international conference convened by an agency; and (iv) any committee of any of the preceding bodies. 53 A significant element of this definition is that it includes the core meetings of the Specialized Agencies—namely, those of their standing assemblies and executive bodies— within its scope. Since members of international organizations normally participate in the meetings of the principal law-making and executive bodies of the organizations via permanent delegates, the definition at issue provides a legal basis for extending the regime of immunities of members’ representatives to that category of delegates. Therefore, such regime and the definition of ‘representatives’ in Art. I Section 1(v) is not necessarily confined to ad hoc representatives at occasional meetings of the agencies who are not accredited to the permanent delegations of members. 54 The definition given by Art. I Section 1(vi) is quite comprehensive. It basically catches all the meetings of internal bodies of the Specialized Agencies and of international conferences held under the auspices of the agencies themselves. As such, it provided fertile ground for expanding its scope of application by means of headquarters and special agreements with the agencies and other organizations. The FAO–Italy,84 IAEA– Austria,85 and IMO–UK Headquarters Agreements86 closely follow the model of the Convention by including very similar definitions of ‘meetings’ in their preliminary articles. Other times, the definition at stake emerges from the pertinent provisions of 81 82 83 84 85 86

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ibid. UNWTO Annex, para 2(b). ibid. para 2(a). Section 1(i) FAO–Italy Headquarters Agreement (n 52). Section 1(m) IAEA–Austria Headquarters Agreement (n 54). Art. 1(n) IMO–UK Headquarters Agreement (n 55).

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the body of the agreement.87 Finally, the approach most favourable to the agencies is that adopted by Switzerland, which does not explicitly link the enjoyment of immunities by the representatives of members to their participation to the agencies’ meetings,88 but simply to the circumstance that they ‘are in Switzerland on official business’,89 while at the same time recognizing the inviolability of all premises occupied by the agencies on the occasion of their assemblies ‘or any other meeting convened in Switzerland’90 by them. ‘The term “executive head” means the principal executive official of the specialized agency in question . . . ’ Art. I Section 1(vii) defines ‘executive head’ as the ‘principal executive official’ of each 55 Specialized Agency, ‘whether designated “Director-General” or otherwise’. The purpose of this definition is to identify which person or persons are actually envisaged by the several provisions of the Convention that refer to ‘executive heads’ of the agencies. The most important of such provisions is by far Art. VI Section 21 which affords full diplomatic status and immunities to the ‘executive head of each Specialized Agency, including any official acting on his behalf during his absence from duty’, as well as to his/ her spouse and minor children. Art. I Section 1(vii) contains a remarkably narrow definition of ‘executive head’, which 56 refers only to the ‘principal executive official’ of the agencies. In and of itself, the definition does not even cover assistants to the principal executive officials, or her/his deputies, or officials acting on her/his behalf during her/his absence from duty, let alone any other high-ranking official of the agencies. Of course, certain ratione personae extensions of the definition at stake may be found in the specific provisions addressing executive heads. This is the case especially with Art. VI Section 21, which extends diplomatic immunities to acting-executive heads, as well as to their spouses and children of minor age. It is also the case with Art. VIII Section 30, according to which ‘executive heads, assistant executive heads, heads of departments and other officials of a rank not lower than head of department of the specialized agencies’, who are travelling on a UN laissez-passer ‘on the business of the agencies’, shall be afforded the same travelling facilities as are granted to officials of similar rank in diplomatic missions. However, without prejudice to these ad hoc provisions, it remains that Art. I 57 Section 1(vii) was meant to reflect a narrow definition of executive heads, and that, as 87 See especially, Section 3 Agreement between the Republic of Austria and the United Nations Industrial Development Organization Regarding the Headquarters of the United Nations Industrial Development Organization, 29 November 1995, Austrian Official Gazette BGBI. III 100/1998 (‘[T]he UNIDO may hold meetings in the headquarters seat, including international conferences, seminars, workshops and meetings of all UNIDO’s organs and subsidiary bodies’). 88 An exception is the WIPO–Switzerland Headquarters Agreement (n 60), which however also retains a broad wording in the relevant provision of Art. 13 (‘Les représentants des membres de l’Organisation et des Unions aux assemblées générales, conférences et toutes autres réunions jouissent en Suisse des privilèges et immunités suivants . . . ’) (emphasis added). 89 See eg Art. 15 Agreement between Switzerland and the International Labour Organisation concerning the Legal Status of the International Labour Organisation in Switzerland, signed on 11 March 1946, 15 UNTS 382; Art. 15 Agreement between the Swiss Federal Council and the World Health Organization concerning the Legal Status of the World Health Organization and Arrangement for the execution of the said Agreement, 26 UNTS 331; Art. 15 Agreement between the World Meteorological Organization and Switzerland to govern the Legal Status of the World Meteorological Organization in Switzerland, 211 UNTS 277. 90 See Art. 4 ILO–Switzerland Headquarters Agreement (n 89); Art. 4 WHO–Switzerland Headquarters Agreement (n 89); Art. 4 WMO–Switzerland Headquarters Agreement (n 89).

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such, it does not provide a legal basis for any interpretations or applications of an extensive nature or by analogy. This is unequivocally shown by the travaux préparatoires of the Convention. The Secretariat’s Draft Convention circulated in August 1947 envisaged a definition91 encompassing ‘executive heads’, i.e. directors-general or officials of comparable rank, and ‘assistant executive heads’, i.e. assistant directors-general or officials of comparable rank. It granted diplomatic status and immunity to both categories of individuals, including their spouses and minor children.92 The Sub-Committee on Privileges and Immunities dropped this wide-ranging approach. It retained the current strict definition of Art. I Section 1(vii) and, most importantly, confined diplomatic immunity in Art. VI Section 21 to executive heads and acting-executive heads. This result was deliberate. For instance, when commenting on Art. VI Section 21, the SubCommittee pointed out that ‘the text adopted . . . proceeds on the principle that, in general, only the executive head [as defined in Section 1(vii)] of a Specialized Agency should be granted this status on the ground that the protection which officials receive under Section 19 is quite sufficient and that full diplomatic status should be confined to persons in very high positions’.93 The Sub-Committee made allowance for the extension of diplomatic status only to certain top ‘quasi officials’,94 such as chairmen of executive bodies, ‘whose rank must be held to be superior or equal to that of the executive head’95 of the agency concerned. 58 However, similarly to what has occurred vis-à-vis the notion of ‘representatives of members’ (see MN 49), the narrow definition of ‘executive heads’ has been expanded in subsequent treaty developments, first and foremost by the provisions in the annexes to the Convention listing the individuals entitled to diplomatic status under Art. VI Section 21.96 Accordingly, such status is also granted to: (i) ‘any Deputy Director-General of the International Labour Office and any Assistant Director-General of the International Labour Office’;97 (ii) ‘the Deputy Director-General and the Assistant Directors-General of the Organization’;98 (iii) ‘the President of the Council of the Organization’;99 (iv) ‘[t]he Deputy Director-General of the Organization, his spouse and minor children’;100 (v) ‘any Deputy Director-General, Assistant Director-General and Regional Director of the Organization’;101 91

Draft Section 18. Draft Section 22. So drafted, the provision was identical to Art. V Section 19 of the General Convention, which affords diplomatic status and immunities to the Secretary-General and all Assistant Secretaries-General. 93 Final Report of Sub-Committee 1 (n 20), at 10, para 27. 94 ibid. 95 ibid. 96 It is uncertain whether Art. VI Section 18, according to which each agency ‘will specify the categories of officials’ to which Art. VI (which includes Section 21) shall apply, represents a legal basis for the ratione personae expansion of the scope of the provisions at issue. It seems more concerned with the categories of officials which are generally covered by the privileges and immunities set forth in Art. VI Sections 19 and 20. 97 ILO Annex, para 2. 98 FAO Second Revised Annex, para 3. 99 ICAO Annex, para 1. 100 UNESCO Annex, para 2. 101 WHO Third Revised Annex, para 4. 92

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(vi) ‘the Deputy Secretary-General, . . . the Secretary of the Maritime Safety Committee and . . . the Directors of the Administrative Division, the Technical Co-operation Division, the Legal Affairs and External Relations Division, the Conference Division and the Marine Environment Division’,102 with the exception of those individuals who are nationals of the State where the organization has its headquarters; (vii) ‘the Deputy Directors General of the Organization’;103 (viii) ‘any Vice-President of the Fund’;104 (ix) ‘any Deputy Director-General of the Organization’;105 and (x) ‘the Deputy Secretary-General of the Organization, his/her spouse and minor children’.106 The inference is that the definition of ‘executive head’ in Art. I Section 1(vii) has been 59 de facto modified, at least with respect to its most significant application, i.e. that involving individuals entitled to diplomatic status, which the majority of the agencies have extended in more or less broad terms. This deviation from the wording of Art. I Section 1(vii) and Art. VI Section 21 and 60 from the intention of the negotiators has not remained unchallenged. Most significantly, another reservation appended by France to its instrument of accession (see MN 41), which has not met any recorded objections, reads as follows: ‘The privileges and immunities, exemptions and facilities accorded to the executive head of each agency in reference to diplomatic envoys shall not be extended to any other official, except one acting on the former’s behalf during his absence from duty.’

b) Section 2 The negotiating history of Art. I Section 2 includes an interesting discussion in the Sub- 61 Committee on Privileges and Immunities about a proposed addition to its text formulated by the Union of Soviet Socialist Republics (USSR, now the Russian Federation) and eventually rejected by a majority of the Sub-Committee. In the view of the USSR delegate, Art. I Section 2 should have been complemented by a final provision prescribing that privileges and immunities would be accorded to the Specialized Agencies ‘in conformity with the laws and regulations of the state concerned’.107 This wording would have compromised the integrity of the basic obligation laid down in Art. I Section 2, also considering that it was conceived of as a sweeping savings clause for national legislation, i.e. as a clause subordinating the basic obligation to domestic law as a whole (and not only to domestic constitutions). The USSR proposal encountered strong criticism from the delegations of Canada, 62 Cuba, Egypt, India, Norway, the UK, and the US, according to which it was ‘inconsistent with the provisions of Section 46 of the Draft Convention . . . and with the general principles of international law concerning the effect of international conventions’.108 On 102 103 104 105 106 107 108

IMO Second Revised Annex, para 1. WIPO Annex, para 1. IFAD Annex, para 1. UNIDO Annex, para 2. UNWTO Annex, para 6. Final Report of Sub-Committee 1 (n 20), at 6, para 16. ibid. at 6–7, para 16. PAVONI

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the one hand, it should be recalled that Art. XI Section 46 of the Convention—a provision finding an almost identical counterpart in Section 34 of the General Convention—directly contradicts the USSR proposal, by stipulating that ‘when an instrument of accession or a subsequent notification is deposited on behalf of any State, this State will be in a position under its own law to give effect to the terms of this Convention’. 63 On the other hand, when referring to the general principles of international law relating to the effect of international conventions, the delegations in question had obviously in mind the key principles of pacta sunt servanda and of the irrelevance of domestic law as justification for failure to perform a treaty, as later codified by the Vienna Convention on the Law of Treaties (VCLT).109 Despite the firm objections by the USSR,110 the proposal was rejected by a majority of the Sub-Committee,111 and as a result a ‘general reservation’112 by the USSR Government with regard to the Convention was placed on record. The USSR, indeed, acceded to the Convention some 20 years later, on 10 January 1966, with no reservation along the lines of its 1947 proposal. 64 Art. I Section 2 sets forth the general obligation of States Parties to accord to the Specialized Agencies themselves, as well as to the related officials and members’ representatives (‘in connexion with’), the privileges and immunities prescribed by the standard clauses as modified by the annex pertaining to the individual agencies, provided that the Convention has become applicable to the agencies in question and that the latter are covered by the States Parties’ accession. Key substantive elements of this obligation are already made evident by the definitions of ‘standard clauses’ and ‘Convention’ in Art. I Section 1(i) and (iii) (see MN 19–20, 31), while others are reiterated in subsequent provisions, such as Art. X Section 33. 65 However, the wording of Art. I Section 2 itself is rather convoluted. It consists of a single, lengthy sentence which includes many repetitions. The absence of commas in particular in the first part makes it difficult to read and, most notably, may cause 109 See Art. 26 Vienna Convention on the Law of Treaties, 1155 UNTS 331 (‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’) and Art. 27 (‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’); and Arts. 26 and 27 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, UN-Doc. A/CONF.129/15. For commentaries, see J Salmon, ‘Article 26. Convention of 1969’, in O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties. A Commentary (OUP 2011) 659; J Salmon, ‘Article 26. Convention of 1986’, in O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties, 686; A Schaus, ‘Article 27. Convention of 1969’, in O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties, 688; K Boustany and M Didat, ‘Article 27. Convention of 1986’, in O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties, at 702; M E Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 361. See also Arts. 3 and 32 of the 2001 Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, 53 UN GAOR Supp. (No. 10) at 43, UN-Doc. A/56/10 (2001). 110 The USSR cited Swiss legislation and the FAO Constitution in support of its proposal, see Final Report of Sub-Committee 1 (n 20), at 7, para 16. Clearly, the USSR delegate had in mind Art. XVI(2) Constitution of the Food and Agriculture Organization of the United Nations, 16 October 1945, 145 BSP 910, according to which ‘[e]ach Member Nation and Associate Member undertakes, insofar as it may be possible under its constitutional procedure, to accord to the Organization all the immunities and facilities which it accords to diplomatic missions . . . ’ (emphasis added). For a famous example of an Italian domestic court’s reliance, inter alia, on this provision in deciding to lift the FAO’s jurisdictional immunity, see Food and Agriculture Organization of the United Nations v Istituto Nazionale di Previdenza per i Dirigenti di Aziende Industriali (INPDAI), Italy, Corte di Cassazione, 18 October 1982, No. 5399, (1982) UNJYB 234, 87 ILR 1. 111 With the recorded abstention of Czechoslovakia and Argentina, and the absence of Yugoslavia, see Final Report of Sub-Committee 1 (n 20), at 7, para 16. 112 ibid.

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misunderstanding. The double condition which determines the scope of the States Parties’ obligation—namely, (i) that the Convention has become applicable to the agencies and (ii) that the latter are covered by the Parties’ accession—is not clearly articulated therein. At first glance, the phrase ‘[e]ach State party to this Convention in respect of any Specialized Agency to which this Convention has become applicable . . . shall accord to . . . that agency the privileges and immunities . . . ’ may appear misleading, to the extent that it may be read as imposing obligations vis-à-vis all the agencies which have fulfilled the requirements subordinating the Convention’s applicability to them. In other words, the condition sub (ii) above, which relates to the necessity that the 66 specific agency claiming privileges and immunities vis-à-vis a given State Party be designated by the latter in its instrument of accession (Art. XI Section 43), is not immediately apparent. Nonetheless, the expression ‘in respect of any specialized agency’ is meant to link up with the preceding words ‘each State party’, not with the subsequent phrase ‘shall accord to . . . that agency the privileges and immunities’. Thus intended, Art. I Section 2 is not at variance with the ‘designation condition’ at issue. It remains the case that, for the sake of clarity, it would have been preferable if the phrase ‘[e]ach State party to this Convention in respect of any specialized agency to which this Convention has become applicable’ had been followed by the expression ‘and covered by its accession’, as used in Art. XI Sections 46 and 47. The French text of Art. I Section 2 is indeed worded as such and does not lend itself to any misunderstanding.113 The general obligation in Art. I Section 2 must also be read in the light of Art. XI 67 Section 47. This makes clear that, irrespective of the coverage of the parties’ accession, the general obligation ceases to apply whenever a revised convention has been concluded or a revised agency’s annex approved (Art. XI Section 47(1)). These revised texts need to be specifically accepted by the State Parties, so as to restore the general obligation’s applicability erga omnes or vis-à-vis the agency to which the revised annex relates. Art. XI Section 47(2), on the other hand, entitles States Parties which are not, or not anymore, members of a Specialized Agency to ‘withhold from that agency the benefits of the Convention’. In practice, this entails that the binding nature of the obligation in Art. I Section 2 is subject to the exercise of that power in respect of the agencies concerned. Finally, as regards the condition sub (i) (i.e. the Convention’s applicability to the 68 agencies), it is sufficient to recall that, under Art. X Section 37, the condition is fulfilled when an agency has transmitted to the UN Secretary-General ‘its’ final annex and has informed her/him of its acceptance of all clauses in the Convention and the annex entailing obligations for the agency itself.

D. Conclusion References to Art. I of the Specialized Agencies Convention in international and domestic 69 judicial practice have been extremely rare. In his Separate Opinion appended to the ICJ Advisory Opinion on the 1951 WHO/Egypt Agreement,114 Judge Sette-Camara 113 ‘Tout État partie à la présente Convention accordera en ce qui concerne toute institution spécialisée couverte par son adhésion et à laquelle la présente Convention est devenue applicable . . . , les privilèges et immunités . . . ’ (emphasis added). 114 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 20 December 1980, (1980) ICJ Rep 73.

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mentioned the definition of ‘standard clauses’ in Art. I Section 1(i) Specialized Agencies Convention for the purposes of demonstrating that the Agreement at stake could not be regarded as a legal instrument merely regulating issues of privileges and immunities of international organizations. In his view, even though it contained ‘the bulk of the usual provisions related to privileges, immunities and facilities’115 which Art. I Section 1(i) labelled ‘standard clauses’, the Agreement belonged to the category of host agreements. Indeed, similarly to the latter agreements, it considered those problems ‘in the light of the needs of the permanent presence of an international organization in the territory of the host State’,116 as shown by its provisions going beyond or adjusting the standard clauses. 70 On the other hand, the impact of Art. I on State practice and on the institutional practice of the Specialized Agencies has been remarkable. Various model definitions included in Art. I Section 1 have constituted a benchmark for the negotiations of agreements concerning the agencies’ main headquarters or those of their regional offices and organizations, as well as for special agreements relating to ad hoc conferences and technical projects sponsored by the agencies. 71 Such agreements frequently contain a preliminary provision on definitions, some of which are largely informed by Art. I Section 1 Specialized Agencies Convention, while others develop or broaden the content of this section. In other cases, certain definitions have been spelled out in the operative text of these agreements. As seen earlier, this process has involved especially the definitions of ‘property and assets’ (Art. I Section 1(iv)), ‘representatives of members’ (Art. I Section 1(v)), ‘meetings convened by a specialized agency’ (Art. I Section 1(vi)), and ‘executive head’ of a Specialized Agency (Art. I Section 1(vii)). 72 It is hardly surprising that the Specialized Agencies have interpreted and acted upon the definitions in Art. I Section 1, especially those concerning ‘property and assets’ and ‘executive head’, in a broad fashion. However, it is uncertain whether this approach accurately reflects the state of the law. States have frequently shown resistance to that approach, as is most prominently evidenced by the above-mentioned reservations formulated by France when acceding to the Convention (see MN 41, 60).

115 116

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ibid. at 188. ibid.

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III JURIDICAL P ERSONALITY

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Juridical Personality (Article I Section 1 General Convention) Niels Blokker ARTICLE I JURIDICAL PERSONALITY SECTION 1. The United Nations shall possess juridical personality. It shall have the capacity: (a) To contract; (b) To acquire and dispose of immovable and movable property; (c) To institute legal proceedings.

A. Introduction According to Art. 104 of the Charter, the UN ‘shall enjoy in the territory of each of its 1 Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’. What this entails is specified in Art. I Section 1, which deals with the legal status of the UN in the national legal order. Art. I Section 1 is not about the legal status of the UN in the international legal order. 2 While that question was also discussed when the UN Charter was negotiated, it was considered ‘superfluous to make this the subject of a text. In effect, it will be determined implicitly from the provisions of the Charter as a whole.’1 The UN Charter is therefore silent on the question whether or not the UN is an international legal person. But from the moment the UN began its work, it became clear that it could not function without such status. It started to conclude agreements, such as the 1947 UN–US Headquarters Agreement.2 The International Court of Justice (ICJ) in 1949 concluded ‘that the Organization is an international person. . . . [I]t is a subject of international law and capable of possessing international rights and duties . . . .’3 Since then, it is generally agreed that the UN’s legal status in international law is implied in the Charter, unlike its status in national law that has been explicitly regulated from the outset, in Art. 104 of the Charter and subsequently in Art. I Section 1 General Convention.

B. Background and Drafting History The travaux préparatoires of the UN Charter demonstrate that already at that stage there 3 was general agreement on the substance of what was to become the text of Art. I Section 1. While the 1944 Dumbarton Oaks Proposals did not yet contain draft provisions on the legal personality of the future world organization, it was during the United Nations

1

13 UNCIO-Doc. 710 (1945). Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, 11 UNTS 11. 3 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, (1949) ICJ Rep 174, at 179; see also Repertory of Practice of United Nations Organs (1945–54), at 334–7. 2

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Conference on International Organization4 that the question was raised: ‘[s]hould the Charter include an article concerning the juridical status of the Organization?’5 Belgium proposed a provision that referred to the ‘international status’ of the organization. One of the delegates suggested ‘that “juridical” rather than “international” personality or status would be a better term, as susceptible of definition in such a way as to distinguish it from the status enjoyed by states in international law’.6 The matter was referred to a SubCommittee, which subsequently proposed a text that—without any further changes— became Art. 104 of the Charter.7 A brief commentary to this text was included in the report of the rapporteur of Committee IV/2, which stated inter alia that ‘[t]he Organization must be able, in its own name, to contract, to hold movable and immovable property, to appear in court. These are only examples.’8 It is therefore clear that, while Art. 104 of the Charter is couched in general terms, its more precise meaning was already generally agreed well before the General Convention was drafted and was more or less similar to the text of what was to become Art. I Section 1 of this Convention. 4 During the negotiations of the General Convention, there has not been much discussion on the text of Art. I Section 1. The Preparatory Commission established by the San Francisco Conference prepared a draft convention on privileges and immunities and transmitted it to the General Assembly for its consideration. Within the Preparatory Commission, the negotiations on a draft convention mainly took place in the SubCommittee on Privileges and Immunities of Committee 5 (Legal Committee). This Sub-Committee was established on 29 November 1945. The next day, on 30 November 1945, the delegation of Canada submitted a draft resolution on the privileges and immunities of the UN, including a ‘tentative and provisional draft’ for a general convention on the privileges and immunities of the UN. Art. 3 (‘Status of the Organization’) of the Canadian draft provided the following:9 The Organization shall possess full juridical personality and shall have the capacity to perform any legal act appropriate to its purposes which is not beyond the power granted to it by the Charter, and in particular, the capacity: a) To contract; b) To acquire and dispose of immovable and movable property; c) To institute legal proceedings.

5

While the precise origin of this draft text is not clear, it is likely that it was inspired not only by the work done at the UN Conference on International Organization, but also by proposals that had been prepared by the International Labour Office for the ILO Governing Body (‘ILO proposals’), and by existing rules for other organizations. The ILO proposals were issued in January 1945 and include the following provision:

4

San Francisco Conference, 25 April 1945–26 June 1945. 13 UNCIO-Doc. 617 (1945) (Agenda for Ninth meeting of Committee IV/2, 22 May 1945). 13 UNCIO-Doc. 622–623 (1945) (Summary report of Tenth meeting of Committee IV/2, 25 May 1945). 7 13 UNCIO-Doc. 653–655 (1945) (Revised summary report of Fourteenth meeting of Committee IV/2, 7 June 1945). 8 13 UNCIO-Doc. 710 (1945) (Report of the Rapporteur of Committee IV/2, as approved by the Committee, 12 June 1945). 9 Preparatory Commission of the United Nations, Doc. PC/LEG/17, at 3. 5 6

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2. The Members of the Organization should take any steps which may be necessary under their law to enable the Organization to exercise within their jurisdiction legal capacity to conclude contracts, to acquire, hold and convey property, to accept endowments or gifts, and in general to assume and discharge obligations and perform any act in the law appropriate to its purposes.10

A number of other international organizations predating the creation of the UN had 6 provisions relating to the legal capacity of the organization. For example, the provisions included in the constituent instruments of the International Monetary Fund (IMF) and of the World Bank (1944) are similar to the text of Section 1 of the General Convention: [T]he Fund/Bank ‘shall possess full juridical personality, and, in particular, the capacity: (i) to contract; (ii) to acquire and dispose of immovable and movable property; (iii) to institute legal proceedings’.11

Most of the Canadian draft text for Art. 3 was used for the Draft Convention prepared 7 by the Sub-Committee; only the passage specifying that the organization has the ‘capacity to perform any legal act appropriate to its purposes which is not beyond the power granted to it by the Charter’ was removed. As a result, the text of the Draft Convention proposed by the Sub-Committee was as follows: The Organization shall possess full juridical personality and in particular, the capacity; a) to contract; b) to acquire and dispose of immovable and movable property; c) to institute legal proceedings.12

Apart from two very small textual changes, this became Art. 1 of the Draft Convention 8 included in the report of the Preparatory Commission to the General Assembly: The Organization shall possess full juridical personality and in particular, the capacity: a) to contract; b) to acquire and dispose of immovable and movable property; and c) to institute legal proceedings.13

The General Assembly discussed the report of the Preparatory Commission at its first 9 session, in January–February 1946. Chapter VII of this report (‘Privileges, Immunities and Facilities of the United Nations’) was allocated to the Sixth Committee of the General Assembly. The Sixth Committee appointed a Sub-Committee on privileges and immunities.14 This Sub-Committee drafted the text for a general convention on privileges and

10

See ILO, Official Bulletin, Vol. XXVII, No. 2, at 197–223 (quoted text at 220). According to Jenks, these proposals, based on the experience of the League of Nations and other organizations, ‘were known to members of the Preparatory Commission of the UN and of the General Assembly’. See C W Jenks, International Immunities (Oceana 1961) 14. 11 Art. IX Section 2 of the Articles of Agreement of the IMF; Art. VII Section 2 of the Articles of Agreement of the World Bank. These provisions were mentioned in an annex to the Study on Privileges and Immunities by the Preparatory Commission of the UN. 12 See Report of the Sub-Committee on Privileges and Immunities (PC/LEG/33), 8 December 1945, (reproduced in the Report by the Executive Committee to the Preparatory Commission of the United Nations, 12 November 1945, PC/EX/113/Rev.1). 13 See Report of the Preparatory Commission of the United Nations (PC/20), 23 December 1945 (London 1946), Chapter VII, Appendix B (at 72). 14 See A Reinisch, Introduction to the General Convention, MN 17. BLOKKER

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immunities of the UN,15 on the basis of the draft proposed by the Preparatory Commission (December 1945). 10 The Sub-Committee introduced two small changes16 in the proposed text for what was to become Section 1 of the General Convention. First, Art. I Section 1 General Convention refers to ‘juridical personality’, whereas the Preparatory Commission used ‘full juridical personality’. Secondly, Art. I Section 1 General Convention contains two sentences, while Art. I Section 1 of the Draft Convention prepared by the Preparatory Commission had one sentence and used the words ‘in particular’. It may be useful to briefly analyse these differences, even though neither of them is based on fundamentally different views regarding the substance of this provision. 11 The first difference relates to the definition of legal personality. It may be defined as a status that is absolute: an entity is or is not a legal person. Alternatively, it may be defined as something that is relative: an entity may have more or less legal personality. There is no consensus in doctrine on this issue.17 In practice it does not seem to have many implications whether the absolute or the relative view is adhered to. The reference to ‘full juridical personality’ seems to imply a choice in favour of the relative view. Such an implication is lacking when simply referring to ‘juridical personality’, as is done in Art. I Section 1 General Convention. As is shown in the travaux préparatoires, other instruments on privileges and immunities existing at the time did not consistently refer to either ‘juridical personality’ or ‘full juridical personality’.18 12 As far as the second difference (two sentences; deletion of the words ‘in particular’) is concerned, it is not clear from the travaux préparatoires whether this difference, especially the deletion of ‘in particular’, was prompted by a desire to have an exhaustive list of three specific capacities and to exclude others.

C. Key Elements ‘The United Nations shall possess juridical personality.’ 13 This opening sentence of the General Convention is of fundamental importance. It means that the UN is a legal person. It has an existence of its own, to be distinguished from that of its member States. It may bear rights and obligations in its own name. The text of this provision is rather general and does not specify whether the rights and obligations concerned could only be rights and obligations under the domestic legal order of the member States, or also rights and obligations under international law. However, it is clear from the travaux 15

The Draft General Convention was included in the second report of the Sub-Committee, UN-Doc. A/C.6/31 (5 February 1946). 16 As well as from the change of ‘The Organization’ to ‘The United Nations’. 17 See eg N D White, The Law of International Organisations (2nd edn, Juris Publishing 2005) 31–2; H G Schermers and N Blokker, International Institutional Law (5th edn, Martinus Nijhoff 2011) 993. In the Reparation for Injuries Advisory Opinion (see n 3, at 179) the ICJ seems to have expressed itself in favour of the relative view (‘in the opinion of the Court, the Organization was intended to exercise and enjoy, and it in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane’) (emphasis added). 18 See Report of the Preparatory Commission of the United Nations (PC/20), 23 December 1945 (London 1946), Appendix B, at 64: ‘Full juridical personality’ is used in the constitutions of the IMF and the World Bank, ‘international personality’ is used in the constitution of the European Central Inland Transport Organization. BLOKKER

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préparatoires and from subsequent practice that this provision does not deal with the status of the UN under international law.19 In addition, the ICJ based its conclusion in the Reparations Advisory Opinion that the UN is an international legal person not on this provision, but on the basis of an ‘implied powers reading’ of the UN Charter.20 This opening sentence of the General Convention obliges States Parties to recognize 14 the separate legal status of the UN in their domestic legal order.21 In practice, they have done so. As is indicated in the most recent study in this area, the UN ‘has experienced little difficulty in regard to its legal capacity in host states’.22 ‘It shall have the capacity: (a) To contract;’ In practice, the UN has entered into a wide variety of private law contracts. Examples 15 include contracts for maintenance, for the purchase of office equipment, for the lease of premises, for printing, services, insurance, etc.23 The capacity of the UN to conclude private law contracts has not been questioned in practice.24 As the ILC has observed in a study published in 1967, ‘[s]o far as is known, no State has placed any express limitation upon its recognition of the contractual capacity of the United Nations’.25 When entering into private law contracts, the relevant national law is often applicable. This may lead to questions and problems, a discussion of which is however outside the scope of this commentary on the section relating to legal personality.26 There has been some discussion about the question whether organs of the UN 16 themselves have the capacity to contract in their own name. In practice, the UN General Assembly has given such capacity to some UN organs, such as UNICEF and UNDP.27 The UN has taken the view that it is of little practical significance whether the UN or one 19

As has been confirmed in doctrine, see eg I Seidl-Hohenveldern and G Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften (7th edn, Carl Heymanns 2000) 53; P Sands and P Klein, Bowett’s Law of International Institutions (6th edn, Sweet and Maxwell 2009) 474–5; J Klabbers, An Introduction to International Organizations Law (3rd edn, CUP 2015) 43–7; H G Schermers and N Blokker (n 17), at 1021. 20 See Reparations Case (n 3), in particular at 178–9. 21 A Miller, ‘The Privileges and Immunities of the United Nations’, (2009) 6 International Organizations Law Review 7–115, at 25; C F Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2005) 70. 22 See A Miller (n 21), at 25. 23 These examples are mentioned in Repertory of Practice of United Nations Organs (1945–54), at 332. 24 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—Extract from the Yearbook of the International Law Commission 1967 Vol. II (UN-Doc. A/CN.4/L.118) (hereinafter: UN Secretariat Study 1967) 207–8; Relations between States and international organizations (second part of the topic). 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—Topic: Status, privileges and immunities of international organizations, their officials, experts, etc.—Extract from the Yearbook of the International Law Commission 1985 Vol. II/Add.1 (UN-Doc. A/CN.4/L.383) (hereinafter: UN Secretariat Study 1985) 152–3. See also A S Muller, International Organizations and their Host States—Aspects of their Legal Relationship (Kluwer Law International 1995) 93–4; A Miller (n 21), at 29. 25 UN Secretariat Study 1967 (n 24), at 208 (repeated in the UN Secretariat Study 1985 (n 24), at 153). 26 See for a thorough study of this issue A Reinisch, ‘Accountability of International Organizations According to National Law’, (2005) 36 Netherlands Yearbook of International Law 119–67. As stated by Reinisch, the relevant national law applicable ‘will be determined according to private international law principles’ (at 165). See also the Resolution adopted by the Institut de Droit international in Oslo (1977), ‘Contracts Concluded by International Organizations with Private Persons’, reproduced in (1977) 57 Annuaire de l’Institut de Droit international, Tome II, Session d’Oslo 1977, 333–7. 27 See A Miller (n 21), at 29. BLOKKER

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of its organs is party to a contract, the key question being whether or not the organ has the competence (is authorized) to exercise this capacity in a particular case.28 ‘(b) To acquire and dispose of immovable and movable property;’ 17 The capacity of the UN to acquire and dispose of immovable and movable property is also generally accepted, although there are some exceptions, in particular relating to the purchasing of real estate. Mexico made the following reservation upon its accession to the General Convention in 1962: The United Nations and its organs shall not be entitled to acquire immovable property in Mexican territory, in view of the property regulations laid down by the Political Constitution of the United Mexican States.29

18

A few other countries have made somewhat less strict reservations. Upon its accession to the General Convention in 1972, Indonesia stated: The capacity of the United Nations to acquire and dispose of immovable property shall be exercised with due regard to national laws and regulations.30

19

In order to circumvent such reservations, the relevant host States may put the necessary real estate at the disposal of the UN.31 20 The UN has widely exercised its capacity to acquire and dispose of immovable property, for example with respect to its headquarters in New York City, the ‘Ariana site’ in Geneva, and the premises placed at the disposal of the ICJ at the Peace Palace in The Hague.32 In Vienna, the UN leases the Vienna International Centre from the Austrian Government for one Austrian schilling per annum pursuant to an Agreement between the United Nations and Austria signed on 19 January 1981.33 The specific conditions for obtaining property have been established in different types of legal instruments, in particular in agreements with host States, in legislation adopted by local authorities, and in private law contracts.34 While the UN’s capacity to acquire and dispose of immovable property as such has been widely recognized, when using this capacity the UN has sometimes encountered administrative difficulties, due to the number of parties and instruments involved.35 In practice some UN organs also have this capacity themselves; in these cases they may acquire and dispose of real property in their own name.36

28 UN Secretariat Study 1967 (n 24), at 207; UN Secretariat Study 1985 (n 24), at 153; A Miller (n 21), at 29; H G Schermers and N Blokker (n 17), at 1025; for an example relating to the UNDP, see (1990) UNJYB 276–7. 29 See Multilateral Treaties Deposited with the Secretary-General, available at last accessed 20 January 2015. A similar reservation was made by Lithuania in 1993 (ibid.). See also C Binder, Commentary on Final Article Section 34, MN 70, for further reference. 30 See Multilateral Treaties Deposited with the Secretary-General (n 29). Venezuela has made a similar reservation in 1998. See also C Binder, Commentary on Final Article Section 34, MN 70, for further reference. 31 A S Muller (n 24), at 96. 32 For details about the specific arrangements made in these cases, see Repertory of Practice of United Nations Organs (1945–54), at 333. 33 UN Secretariat Study 1985 (n 24), at 160. 34 UN Secretariat Study 1967 (n 24), at 209. 35 ibid. 36 For example, UNDP; see (1990) UNJYB 276–7.

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The capacity of the UN to acquire and dispose of movable property has always been 21 fully recognized. There is vast practice regarding the licensing and registration of land vehicles, ships, and aircraft by the UN.37 The capacity of the UN to acquire and dispose of immovable and movable property 22 includes the capacity to receive bequests; in practice the UN has received many.38 The capacity to receive bequests does not include the capacity to act as an executor or to undertake fiduciary responsibility as a trustee under private law.39 ‘To institute legal proceedings’ While the capacity of the UN to institute legal proceedings has never been questioned in 23 practice, it is rarely used as the organization is reluctant to submit itself to the jurisdiction of a national court. This is mainly because this would preclude the UN from claiming immunity in case it would be exposed to counterclaims.40 Two exceptional early cases are UNRRA v Daan41 and United Nations v B.42 These cases concerned actions brought by the United Nations Relief and Rehabilitation Administration (UNRRA) and the UN against former staff members to recover money erroneously paid to them. The staff members concerned argued that the UN and UNRRA lacked legal personality, but this was rejected by the courts.43 The cases in which this capacity has been used by the UN relate in particular to damage 24 claims, claims against former staff members in respect to money they owe to the UN, and claims to prevent unauthorized use of the name and emblem of the UN.44 The capacity of the UN to institute legal proceedings does not imply that legal proceedings may be brought against the UN; in principle, the UN is protected from such proceedings by its immunity from every form of legal process, laid down in Art. II Section 2 General Convention.45 In most cases the UN has instituted legal proceedings on its own behalf or on behalf of 25 one of its organs (eg UNICEF). UNICEF has also brought legal proceedings in its own

37

For details during the early years of the UN, see the UN Secretariat Study 1967 (n 24), at 213–15. See (1983) UNJYB 209–10. The UN advises those who want to make a gift to the UN to indicate for what specific purpose the gift should be used, and to express any intentions in this regard ‘in precatory language’, ‘in order to avoid the result . . . that the monies would simply be received as miscellaneous income (i.e. applied to redeem total assessment of Member States without adding to the total sum available for United Nations purposes’) (ibid.). 39 ibid. See also A Miller (n 21), at 31. 40 As the UN Office of Legal Affairs has stated: if the organization initiate proceedings, it ‘would in effect waive its immunity and therefore would no longer be immune from counter claims which could be filed by defendants’. See (1995) UNJYB 412. See also (1995) UNJYB 481–4. 41 Cantonal Court Amersfoort, 16 June 1948, District Court Utrecht, 23 February 1949, Supreme Court (Hoge Raad) of the Netherlands, Decision of 19 May 1950, NJ 1951, 150; 16 ILR (1949), 337 (case 114). 42 Tribunal Civil of Brussels, 27 March 1952, 19 ILR 490 (1952), also cited in (1976) UNJYB 170. 43 See (1976) UNJYB 170. See also J Wouters and P Schmitt, ‘Challenging Acts of Other United Nations’ Organs, Subsidiary Organs, and Officials’, in A Reinisch (ed), Challenging Acts of International Organizations before National Courts (OUP 2010) 85. 44 See A Miller (n 21), at 32. For an overview of early cases brought by the UN, see the UN Secretariat Study 1967 (n 24), at 216–17. 45 See A Reinisch, Commentary on Art. II Section 2 General Convention, MN 65ff, for further reference. See also A S Muller (n 24), at 97. 38

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name,46 as have, for example, the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA),47 the UN Korea Reconstruction Agency (UNKRA),48 the UN Council for Namibia,49 and the UN Environment Programme (UNEP) (although in practice UNEP is exercising the UN’s capacity to institute legal proceedings if necessary).50

D. Conclusion 26 Art. I Section 1 General Convention is mostly a codification of what was already agreed during the 1945 UN Charter negotiations in San Francisco. The capacity of the UN to contract, to acquire and dispose of immovable and movable property, and to institute legal proceedings has hardly been questioned in practice. This capacity is not only exercised by the UN, but also by some subsidiary organs of the UN in their own name. 27 It is not immediately clear from the text of Art. I Section 1 and from its travaux préparatoires whether the three specifically mentioned capacities encompass an exhaustive list, or whether the UN may also use other capacities. In practice this has not been an issue. The UN has been able to operate effectively under national law using these three capacities. At the same time there is broad support in literature for the view that Section 1 would also cover the use of other capacities.51 Such an interpretation also finds support in the travaux préparatoires of the UN Charter (see MN 3). It does not give complete carte blanche to the UN when acting under national law, since the use of such other capacities must be necessary for the exercise of the UN’s functions and for the fulfilment of its purposes (Art. 104 of the Charter).

46

Repertory of Practice of United Nations Organs, Suppl. 3 (1959–66), at 222; see further A Ziegler, ‘Article 104’, in B Simma, D-E Kahn, G Nolte, and A Paulus (eds), The Charter of the United Nations (3rd edn, OUP 2012) 2148–9. 47 Repertory of Practice of United Nations Organs (1945–54), at 334; ibid. Suppl. 1 (1954–5), at 418; see further A Ziegler (n 46), at 2147–8. 48 United Nations Korean Reconstruction Agency v Glass Production Methods Inc. et al, US District Court DC, 3 August 1956; 143 F. Supp. 248 (S.D.N.Y. 1956); (1956) 23 ILR 515–16. See also UN Secretariat Study 1967 (n 24), at 216. 49 See UN Office of Legal Affairs, Memorandum to the Secretary of the UN Council for Namibia by the UN Office of Legal Affairs, in relation to the initiative by the Council for Namibia to bring actions before national courts for the enforcement of its Decree No. 1 for the Protection of Natural Resources of Namibia, (1982) UNJYB 169–70. In this memorandum, the Office of Legal Affairs concluded that, in its view, ‘an action to enforce Decree No. 1 would, as far as the question of capacity is concerned, be consistent with the meaning of Article 104 of the Charter and section 1 of the Convention on the Privileges and Immunities of the United Nations’ (at 170). 50 A Miller (n 21), at 32. In the case of UNEP, the UN Office of Legal Affairs advised the following in 1995: ‘[u]nder its mandate, as defined by the General Assembly, UNEP has been provided with the authority to take direct legal actions. . . . As a subsidiary body of the United Nations, UNEP does not have its own legal personality. Consequently, legal proceedings in the courts of Member States can be instituted by UNEP, acting on behalf of the United Nations, only on those occasions where UNEP is duly authorized to do so within the limits of its competence.’ See (1995) UNJYB 412. 51 See eg P Sands and P Klein (n 19), at 480; A Miller (n 21), at 28–9, 32, mentioning as examples the capacities to copyright its official publications and to patent inventions that benefit its assistance programmes.

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Juridical Personality (Article II Section 3 Specialized Agencies Convention) Niels Blokker ARTICLE II JURIDICAL PERSONALITY SECTION 3. The specialized agencies shall possess juridical personality. They shall have the capacity (a) to contract, (b) to acquire and dispose of immovable and movable property, (c) to institute legal proceedings.

A. Introduction Art. II Section 3 Specialized Agencies Convention deals with the legal status of the 1 Specialized Agencies in the national legal order. Its substance is—mutatis mutandis— exactly the same as Art. I Section 1 General Convention.1 The Specialized Agencies Convention allows the specialized agencies to add modifications to its provisions, to be attached as ‘annexes’ to the Convention. None of these annexes include any modification of Art. II Section 3 Specialized Agencies Convention for any of the Specialized Agencies. Art. II Section 3 Specialized Agencies Convention is not about the legal status of the 2 Specialized Agencies in the international legal order. Like the UN Charter, most constituent instruments of the Specialized Agencies lack an explicit provision about this.2 Following the 1949 Reparations Advisory Opinion of the ICJ,3 it has often been concluded that the international legal personality of those Specialized Agencies (and of other international organizations lacking an explicit international legal personality provision in their constituent instrument) is implied in their constituent instruments and generally accepted in practice, certainly by the members of those organizations.4

B. Drafting History At first glance it may seem that there has been no or hardly any discussion about Art. II 3 Section 3 before the Specialized Agencies Convention was adopted by the General Assembly.5 The text of Art. II Section 3 is similar to that of Art. I Section 1 General 1

See N Blokker, Commentary on Art. I Section 1 General Convention. For an exception, see Art. 10 Section 1 of the 1976 Agreement Establishing the International Fund for Agricultural Development, 1059 UNTS 191 (‘[t]he Fund shall possess international legal personality’). 3 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, (1949) ICJ Rep 174. 4 K Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations (Martinus Nijhoff 1964) 59; A S Muller, International Organizations and their Host States—Aspects of their Legal Relationship (Kluwer Law International 1995) 77; C F Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2005) 83; H G Schermers and N Blokker, International Institutional Law (5th edn, Martinus Nijhoff 2011) 990. 5 UNGA Res 179 (II) A, 21 November 1947. 2

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Convention, and the General Assembly had in 1946 considered that ‘there are many advantages in the unification as far as possible of the privileges and immunities enjoyed by the United Nations and the various specialized agencies’.6 However, a closer look at the travaux préparatoires of the Specialized Agencies Convention demonstrates that the ‘copying’ of Art. I Section 1 General Convention has not been a matter of course. 4 UNGA Res 22 (I) D of 13 February 1946 instructed the UN Secretary-General to open negotiations with a view to the reconsideration, in the light both of the General Convention adopted by the United Nations and the considerations above, of the provisions under which the specialized agencies at present enjoy privileges and immunities.7

Subsequently, the UN Secretary-General consulted the various Specialized Agencies. Meetings were held on 6 and 7 March 1947, attended by representatives of the UN Secretariat and of the secretariats of the specialized agencies. At these meetings, the UN Secretariat submitted a draft text for what was to become the Specialized Agencies Convention. While this draft text has not been published, it included a provision on the legal personality and capacity of the Specialized Agencies, which was criticized in the meetings of 6 and 7 March 1947. A report by the UN Secretary-General, referred as follows to this criticism: The initial draft prepared by the Secretariat of the United Nations referred to the legal personality and to the capacity of the specialized agencies. This capacity, however, was granted within the limits of the purposes envisaged in the respective basic instruments. The debates showed that any such limitation might lead to discussions in the courts on the subject of the purposes and aims of the specialized agencies. In these circumstances, most of the organizations concerned asked for the deletion from the General Convention of any reference to legal personality as they preferred to rely on the appropriate provisions of the basic instruments.8

5

On the basis of these discussions with the Specialized Agencies, the UN SecretaryGeneral prepared a new draft text for the future Specialized Agencies Convention, and submitted this text to the General Assembly in August 1947.9 This new draft lacked a provision on legal personality and the capacity of the Specialized Agencies. It was subsequently discussed in Sub-Committee 1 of the Sixth Committee of the General Assembly. The final report of this Sub-Committee was presented to the Sixth Committee in November 1947.10 Appendix A of this final report contained a revised version of the draft text of the Specialized Agencies Convention. In contrast to the earlier draft text, this revised version included the text of what was to become Art. II Section 3 Specialized Agencies Convention.11 The travaux préparatoires do not contain any reference to the discussions that preceded the ‘re-introduction’ in the Draft Convention of a provision on the legal personality and capacity of the Specialized Agencies. The revised draft text was included in the report of the Sixth Committee to the General Assembly,12 and was subsequently adopted by the General Assembly.13 6 7 8 9 10 11 12 13

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UNGA Res 22 (I) D, 13 February 1946. ibid. UN-Doc. A/339 (20 August 1947), at 5. ibid. Annex. UN-Doc. A/C.6/191 (15 November 1947). ibid. at 22. UN-Doc. A/503 (20 November 1947). UNGA Res 179 (II).

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C. Key Elements Since the text of Art. II Section 3 Specialized Agencies Convention is—mutatis mutandis— 6 exactly the same as the text of Art. I Section 1 General Convention, reference may first of all be made to the analysis of the individual elements of Art. I Section 1 in the Commentary on the General Convention.14 In addition, the following observations can be made. The constituent instruments of most Specialized Agencies also contain explicit provisions 7 about their status in national law.15 An example is Art. 39 of the ILO Constitution:16 The International Labour Organisation shall possess full juridical personality and in particular the capacity: (a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to institute legal proceedings.

In addition, similar provisions have been included in a number of headquarters 8 agreements of the Specialized Agencies. An example is Art. 1 of the Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory (1954):17 The Government of the French Republic recognizes the legal personality of the Organization and its capacity: (a) To contract; (b) To acquire and dispose of movable and immovable property; (c) To be party to judicial proceedings.

As a result, whenever in practice the legal status of a Specialized Agency or the three 9 capacities mentioned in Art. II Section 3 Specialized Agencies Convention were at stake, almost always similar provisions in constituent instruments, headquarters agreements, or other legal instruments were applicable. The few available studies indicate that the legal status and the three specific capacities 10 mentioned in Art. II Section 3 Specialized Agencies Convention have been generally recognized in practice; the Specialized Agencies have experienced little difficulty in this regard.18 Cases in which problems have occurred are exceptional. An example is the

14

See N Blokker, Commentary on Art. I Section 1 General Convention. An exception is eg the Constitution of the Universal Postal Union, 611 UNTS 62. 16 Constitution of the International Labour Organisation, 15 UNTS 40. 17 Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory, 357 UNTS 3. 18 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—Extract from the Yearbook of the International Law Commission 1967 Vol. II (UN-Doc. A/CN.4/L.118) (hereinafter: UN Secretariat Study 1967) 299–302; Relations between States and international organizations (second part of the topic). 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—Topic: Status, privileges and immunities of international organizations, their officials, experts, etc.—Extract from the Yearbook of the International Law Commission 1985 Vol. II/Add.1 (UN-Doc. A/CN.4/L.383) 182–6. See also A S Muller (n 4), in particular at 93–8. 15

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refusal by Mexico in the 1960s to permit a UNESCO regional basic educational centre to purchase premises on Mexican territory.19 11 As far as reservations to the Specialized Agencies Convention are concerned, similar reservations have been made as with respect to the General Convention. Indonesia made the following reservation upon accession in 1972: ‘[T]he capacity of the specialized agencies to acquire and dispose of immovable property shall be exercised with due regard to national laws and regulations.’20 Lithuania made the following reservation in 1997: ‘that the specialized agencies shall not be entitled to acquire land in the territory of the Republic of Lithuania, in view of the land regulations laid down by the Art. 47 of the Constitution of the Republic of Lithuania’.21 Mexico has made a reservation with respect to the provision in the General Convention relating to the UN’s capacity to acquire and dispose of immovable property,22 but it is not a party to the Specialized Agencies Convention.

D. Conclusion 12 Not only the text of Art. II Section 3 Specialized Agencies Convention but also the experience in practice is similar to that of Art. I Section 1 General Convention. The legal status of the Specialized Agencies in the domestic legal order and the three specific capacities mentioned in Art. II Section 3 Specialized Agencies Convention have almost always been fully recognized.

19

UN Secretariat Study (n 18), at 301 (see also infra MN 11). See Multilateral Treaties Deposited with the Secretary-General, at last accessed 20 January 2015. See also C Binder, Commentary on Art. XI Sections 41–49 Specialized Agencies Convention, MN 6ff. 21 Multilateral Treaties Deposited with the Secretary-General, at last accessed 20 January 2015. 22 See N Blokker, Commentary on Art. I Section 1 General Convention, MN 17ff. 20

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IV IMMUNITIES AND PRIVILEGES — A JURISDICTIONAL IMMUNITY

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Immunity of Property, Funds, and Assets (Article II Section 2 General Convention) August Reinisch ARTICLE II PROPERTY, FUNDS, AND ASSETS SECTION 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

A. Introduction Art. II Section 2 is the core provision of the General Convention dealing with the organiza- 1 tion’s immunity from legal process. The term legal process comprises both jurisdictional immunity and immunity from execution or enforcement measures. By providing for ‘immunity from every form of legal process’, such wording suggests that the UN and its assets enjoy immunity from jurisdiction and execution in all cases, amounting to absolute immunity. This has been the traditional understanding in scholarly writings, judicial practice, as well as the practice of the organization itself, and it is still widely shared. In recent years, however, doubts have been raised as to whether international organ- 2 izations, in general, and the UN, in particular, necessarily have to enjoy absolute immunity to fulfil their tasks. A more limited immunity concept derives from the fact that Art. 105(1) UN Charter merely requires that the UN enjoy functional immunities as well as from human rights concerns about access to justice for individuals having claims against the organization. In addition, judicial practice shows that some legal systems apply State immunity rules also to international organizations with the consequence that, where they follow a restrictive State immunity concept, also the UN may enjoy no immunity for commercial or iure gestionis activities. In general, however, the jurisdictional immunity of the UN is recognized in most 3 instances where legal action was brought against the UN in national courts. Apparently, no considerable practice of waivers of immunity on the part of the UN exists.

B. Drafting History The negotiation of this provision of the General Convention was relatively brief.1 The 4 travaux préparatoires do not reveal any intensive debate about the actual wording of Art. II Section 2. Already the Canadian proposal for a draft convention on the UN’s immunities,

1

See, on the Convention’s drafting history in general, A Reinisch, Introduction to the General Convention. REINISCH

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facilities, and privileges2 contained a provision on ‘Immunities of the Organization from judicial process’ which largely corresponded to the version finally adopted. It read as follows: The Organization, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.3

The final changes, substituting ‘United Nations’ for ‘Organization’ and ‘legal process’ for ‘judicial process’,4 seem less significant than the deletion of the possibility to waive immunity by contract5 and the addition clarifying that no waiver should extend to execution measures.6 6 The official publication of this core provision of the General Convention in the UN Treaty Series contained a typographical error that made the entire first sentence incomprehensible.7 Apparently, this occurred at the typesetting stage. It was corrected in the Treaty Series in 1951.8 5

C. Background 7 The immunity of international organizations is a relatively recent topic in international law. While diplomatic immunities and the immunity of States has been a core area of the law of nations for many centuries, international organizations are basically creations of the 20th century. Their special status as subjects of international law coupled with the practical need to endow them with immunity protection against the interference of individual forum States has led to the mostly treaty-based development of jurisdictional immunity as well as the concomitant immunity from execution measures.

a) Terminology and Concepts 8 Different terms have been used in the context of describing the immunity of international organizations. There is a basic distinction between immunity from the adjudicatory process of national courts and measures aimed at the enforcement of claims that have

2 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. 3 ibid. at 3. Art. 4 (1)—Immunities of the Organization from judicial process (‘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’). 4 See MN 67. 5 See MN 98. 6 See MN 104ff. 7 Art. II Section 2 General Convention of the version printed in the UNTS, Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15, at 16ff (‘The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity shall extend to any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.’). The words ‘shall extend to any particular case it has expressly waived its immunity’ after ‘except insofar as in any particular case it has expressly waived its immunity’ render the sentence meaningless. 8 See 90 UNTS 327 (corrigendum to vol 1), referring to page 18, 2nd and 3rd lines (‘Delete the following words: shall extend to any particular case it has expressly waived its immunity.’).

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already been adjudicated.9 The former concept is usually referred to as ‘immunity from suit’,10 ‘immunity from jurisdiction’,11 ‘jurisdictional immunity’,12 or the like; while for the latter concept expressions such as ‘immunity from enforcement’13 or ‘immunity from execution’14 are current. Similarly, the latter actions are referred to as ‘measures of execution’15 or ‘measures of constraint’.16 Terminology may be at variance, however. The use of the expression ‘immunity from 9 legal process’ in Art. II Section 2 General Convention comprises both adjudicatory and enforcement immunity since it relates to both the UN itself, which is exempt from the adjudicatory jurisdiction of national courts, and the UN’s property and assets, which are exempt from the enforcement or execution jurisdiction of national courts (see infra MN 69ff ).

b) The Rationale and Justification of Immunity for International Organizations State immunity is based on sovereign equality, the venerable principle of par in parem non 10 habet imperium.17 Many national courts nowadays adhere to a restrictive sovereign immunity concept according to which foreign States merely enjoy immunity for their ‘sovereign’, ‘governmental’, or ‘jure imperii ’ acts and not for ‘commercial’ ones.18

9 See M Wood, ‘Immunity from Jurisdiction and Immunity from Measures of Constraint’, in R O’Keefe and C J Tams, The United Nations Convention on Jurisdictional Immunities of States and Their Property—A Commentary (OUP 2013) 13ff. 10 International Organizations Act 1968 (IOA), 26 July 1968, [1968] c 48 [UK], Schedule 1 (Privileges and Immunities) Part I (Privileges and immunities of the organization). 11 Chapter I (Immunity from jurisdiction) European Convention on State Immunity, Basle, 16 May 1972, ETS No. 74. See also with regard to Art. II Section 2 Perez v Germany, Application No. 15521/08, European Court of Human Rights, 29 January 2015, para. 78 (‘ . . . under Article 105 Section 1 of the Charter of the UN and section 2 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, ratified by Germany, the UN enjoy immunity from jurisdiction’.). 12 United Nations Convention on Jurisdictional Immunities of States and Their Property 2004, adopted by the General Assembly of the United Nations on 2 December 2004, not yet in force, UNGA Res 59/38, Annex, Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 49 (UN-Doc. A/59/49). 13 See eg the Resolution of the Institut de Droit International, ‘Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement’, (1992 II) Annuaire de l’Institut de Droit International Vol. 64, 389. 14 See eg the Resolution of the Institut de Droit International, ‘The Immunity of Foreign States from Jurisdiction and Execution’, (1954) Annuaire de l’Institut de Droit International Vol. 45 (II) 293–4. 15 See eg Art. 23 European Convention on State Immunity (n 11). 16 Art. 18 (State immunity from measures of constraint) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12). 17 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ Judgment, 3 February 2012, (2012) ICJ Rep 99, at 123, para 57 (‘The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States. . . . ’). See also Explanatory Report to the European Convention on State Immunity, ETS No. 74, para 1, available at last accessed 2 April 2015. 18 See H Fox and P Webb, The Law of State Immunity (3rd edn, OUP 2013); S Wittich, ‘Article 2(1)(c) and (2) and (3)’ in R O’Keefe and C J Tams (n 9), at 54ff; See also Art. 10 (Commercial transactions) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12) (‘1. If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.’). See also S Wittich, ‘Article 10’, in R O’Keefe and C J Tams (n 9), at 167ff.

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International organizations, however, are not States. Thus, any commercial activity exceptions stemming from sovereign immunity are usually rejected.19 11 The reason why it is generally accepted that international organizations should also benefit from immunity is not grounded in sovereignty concerns, but in fears that the exercise of adjudicatory and enforcement jurisdiction by the domestic courts of member and/or non-member States may interfere with the independent fulfilment of their functions.20 It has been generally accepted that international organizations enjoy immunity from suit and enforcement measures in order to be able to operate independently and efficiently.21 Also the UN has stressed that a requirement to litigate before domestic courts could subject international organizations to an ‘indirect’ control by member States through the latters’ judiciary and must thus be rejected.22 Recently, the European Court of Human Rights (ECtHR) endorsed this non-interference rationale for immunity in Stichting Mothers of Srebrenica v The Netherlands.23 19 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 exception to state immunity in situations where the state is undertaking commercial activities is not provided for under the United Nations Charter or the General Convention with respect to the United Nations.’). 20 Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012), para 4.2 (‘Both the basis for and the scope of this immunity, which is aimed at ensuring that the UN can function completely independently and thus serves a legitimate purpose, are therefore different from those underlying the immunity from jurisdiction enjoyed by foreign states.’). See also the stark assertion of a Belgian court, following a finding of absolute immunity in Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Tribunal Civil de Bruxelles, 11 May 1966, 45 ILR 446, at 451 (‘It follows necessarily that the Organization is an independent entity which places itself above the nations, acting according to its own free will, without being subject to any national, judicial, or other authority.’). 21 See eg C F Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2005) 316; C H Brower II, ‘International Immunities: Some Dissident Views on the Role of Municipal Courts’, (2000) 41 Virginia Journal of International Law 1; F L Kirgis, International Organizations in their Legal Setting (2nd edn, West Publishing 1993) 26; J Klabbers, An Introduction to International Institutional Law (CUP 2002) 148; A Miller, ‘The Privileges and Immunities of the United Nations’, (2009) 6 International Organizations Law Review 7–115, at 36; A Reinisch, International Organizations before National Courts (CUP 2000) 234; P Sands and P Klein, Bowett’s Law of International Institutions (5th edn, Sweet and Maxwell 2001) 487; H G Schermers and N Blokker, International Institutional Law (4th edn, Martinus Nijhoff 2003) 252; M Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, (1995) 36 Virginia Journal of International Law 53; C Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law Vol. VI (OUP 2012) 10, para 1. 22 Cf. the amicus curiae brief of the UN in the course of the US litigation in Broadbent v OAS, 481 F. Supp. 907 (DDC 1978), 628 F.2d 27 (D.C.Cir.1980), 63 ILR 162, 337. The UN submission is reprinted in (1980) UNJYB 229 (‘Intergovernmental organizations may be considered as collective enterprises of their member States. Their constituent treaties define precisely the influence each member is to have on the operations of the organizations, and how that influence is to be exercised – generally through collective organs. If individual members could then exert additional influence on those organizations, largely through the fortuitous circumstance of where their headquarters, or the offices or officials or assets, happen to be located this could drastically change the constitutionally agreed sharing of power within the organizations. Thus the immunity granted by states to an intergovernmental organization is really their reciprocal pledge that none will attempt to garner unilaterally an undue share of influence over its affairs.’). 23 Stichting Mothers of Srebrenica v The Netherlands, Application No. 65542/12, European Court of Human Rights, 11 June 2013, para 154 (‘To bring such operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the United Nations in this field including with the effective conduct of its operations.’); see also Klausecker v Germany,

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In addition to the prevailing functional necessity rationale, immunity from legal 12 process is sometimes considered to constitute an inherent quality of the international legal personality of international organizations or to stem from State immunity as a kind of ‘derived’ immunity.24

c) The Scope of Jurisdictional Immunity of International Organizations Legal provisions governing the immunity from suit of international organizations basically 13 provide for three types of immunity. Most often, the immunity from suit or legal process is an unqualified one; sometimes, immunity is qualified as a functional one; whereas, in a few instances, the relevant instruments speak of the same immunity as the immunity enjoyed by States. These divergences indicate different scopes of immunity, ranging from absolute immunity, to a not clearly defined ‘functional’ immunity, and a sovereign immunity standard. It is not surprising that in this situation, courts in different States have come to different results when deciding on the immunity from suit of an international organization.25

(i) Absolute Immunity The more detailed, multilateral privileges and immunities instruments often simply 14 provide for ‘immunity from every form of legal process’ of the same international organizations. Both the General Convention and the Specialized Agencies Convention provide that the UN and the Specialized Agencies ‘shall enjoy immunity from every form of legal process . . . ’.26 In a similar vein, other multilateral privileges and immunities treaties provide for an unqualified immunity of the beneficiary international organization.27 ‘Immunity from every form of legal process’ is also frequently provided for in headquarters agreements.28 Interestingly, the UN’s Headquarters Agreement with the US29 does not contain any provision dealing with the organization’s immunity which may indicate its purely subsidiary character vis-à-vis the General Convention. In practice an unqualified, general immunity ‘from every form of legal process’ is often 15 regarded as absolute immunity.30

Application No. 415/07, European Court of Human Rights, 29 January 2015, para 67 (‘ . . . the attribution of privileges and immunities to international organisations was an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments’.). 24

See A Reinisch, International Organizations before National Courts (CUP 2000) 245ff. See the contributions in A Reinisch (ed), The Privileges and Immunities of International Organizations in Domestic Courts (OUP 2013). 26 Art. II Section 2 General Convention; Art. III Section 4 Specialized Agencies Convention, 21 November 1947, 33 UNTS 261. 27 ‘Immunity from every form of legal process’ is provided for in Art. 3 General Agreement on Privileges and Immunities of the Council of Europe, 2 September 1949, ETS No. 2, 250 UNTS 14; Art. 2 Agreement on Privileges and Immunities of the Organization of American States, 15 May 1949, OAS Treaty Series 22. 28 See eg Art. VIII Section 16 Agreement regarding the Headquarters of the FAO, 31 October 1950, 1409 UNTS 521 (‘immunity from every form of legal process’); Art. 8 Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287 (‘immunity from jurisdiction and execution’). 29 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. 30 See MN 73ff. 25

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(ii) Quasi-sovereign Immunity 16 Some immunity instruments expressly incorporate a State immunity standard. The most important example of such a sovereign immunity grant is the US IOIA31 which has given rise to a considerable number of cases attempting to determine whether the legislative intent really was to confer upon international organizations a restrictive sovereign immunity or whether it was meant to bestow international organizations with the same absolute sovereign immunity enjoyed by States at the time the IOIA was adopted.32 In a similar way, the Italian reservation to the Specialized Agencies Convention meant that Italy accorded to the specialized agencies only restrictive State immunity.33

(iii) Functional Immunity 17 Most constituent instruments of international organizations generally provide for ‘functional immunities’.34 Hardly any such instrument explains what is meant by the term immunity ‘necessary for the functioning’ of an international organization. This has led to broadly diverging interpretations of the inherently vague and general notion of functional immunity. 18 Some modern immunities instruments try to restrict the scope of functional immunity by delimiting the scope of ‘official activities’ for which an international organization enjoys immunity as those ‘strictly necessary for its operation’.35

(iv) Specific Restrictions of Immunity 19 Some recent privileges and immunities instruments contain specific exceptions from an organization’s broad jurisdictional immunity, for example, for claims arising from car accidents.36 20 International financial institutions also enjoy a much more limited immunity from suit, excluding, in particular, immunity for their lending operations. For instance, the Articles of Agreement of the International Bank for Reconstruction and Development (IBRD) do not provide for the Bank’s immunity. Rather, they declare in which country court actions

31 Title I Section 2(b) International Organizations Immunities Act (IOIA) 1945, 59 Stat. 669, 22 U.S.C.A. Sections 288ff (‘International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.’). 32 See MN 27f. 33 See MN 26. 34 See eg 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.’). 35 Art. 3(4) Protocol on Privileges and Immunities of the European Patent Organization (EPO), 5 October 1973, 1065 UNTS 199 (‘[O]fficial activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical operation, as set out in the Convention.’). 36 Art. 3(1)(b) EPO Protocol on Privileges and Immunities (n 35) (providing for an exception from immunity ‘in the case of a civil action brought by a third party for damage resulting from an accident caused by a motor vehicle belonging to, or operated on behalf of, the Organisation, or in respect of a motor traffic offence involving such a vehicle’.); See also Art. IV(1)(b) Annex I to the Convention for the Establishment of a European Space Agency, Paris, 30 May 1975, 14 ILM (1975) 855 (providing for immunity except ‘in respect of a civil action by a third party for damage arising from an accident caused by a motor vehicle belonging to, or operated on behalf of, the Agency, or in respect of a motor traffic offence involving such a vehicle’).

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against the Bank may be brought, while stating that no actions may be brought which derive claims from members.37

d) Overview of the Case Law concerning the Immunity of International Organizations Given that the actual terms of the legal standards concerning the immunity from legal 21 process of international organizations vary considerably, it is not surprising that the precise scope of the jurisdictional immunity of international organizations has been difficult to ascertain in practice. Many national courts have struggled with notions like ‘functional’ or ‘restrictive’ immunity and they have reached widely diverging interpretations.38 In practice, the vague concept of functional immunity often leads to absolute immunity. 22 This happens, in particular, where, as in the case of the UN and its Specialized Agencies, the constituent instrument speaks of ‘functional’ immunity and multilateral privileges and immunities treaties provide for an unqualified and hence absolute immunity. In such situations, courts tend to regard the more detailed rules of the multilateral treaties as an interpretation of what ‘functional’ means in respect to jurisdictional immunity.39 Functional immunity may also lead to absolute immunity as a result of the functional 23 personality concept of international organizations.40 If international organizations enjoy legal personality only to the extent required to perform their functions, they are—in a 37 Art. VII Section 3 Articles of Agreement of the International Bank for Reconstruction and Development, Washington D.C., 27 December 1945, 2 UNTS 134 (‘Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.’). See also G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention, MN 38, and E Okeke, Commentary on Annex VI (IBRD) Specialized Agencies Convention, MN 8ff, for further reference. 38 For an overview of judicial practice, see A Reinisch, International Organizations before National Courts (CUP 2000); as well as the contributions in A Reinisch (ed), The Privileges and Immunities of International Organizations in Domestic Courts (OUP 2013). See also K Schmalenbach, ‘Austrian Courts and the Immunity of International Organizations’, (2014) 10 International Organizations Law Review 446–3; E De Brabandere, ‘Belgian Courts and the Immunity of International Organizations’, (2014) 10 International Organizations Law Review 464–504. 39 See eg Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands, Appeal Court of The Hague, 30 March 2010, LJN: BL8979, para 4.4. (‘ . . . the Convention and therefore also article II § 2 of the Convention, implement (amongst other things) article 105, subsection 3 of the Charter, in the sense that article II § 2 of the Convention further substantiates which immunities are necessary for attaining the objectives of the UN. There is no indication that article II § 2 of the Convention goes beyond the scope allowed by article 105 of the Charter in this respect.’), Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012), para 4.2 (‘The basis for the UN’s immunity (to be distinguished from the immunity granted to its officials and to experts performing missions for the UN) is article 105 of the UN Charter and article II, § 2 of the Convention. The court of appeal was correct to interpret the latter provision— which is an elaboration of article 105, paragraph 1—in the light of article 31 of the Vienna Convention on the Law of Treaties, to mean that the UN enjoys the most far-reaching immunity from jurisdiction, in the sense that the UN cannot be summoned to appear before any domestic court in the countries that are party to the Convention.’). See also 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 Bekker, The Legal Position of Intergovernmental Organizations. A Functional Necessity Analysis of Their Legal Status and Immunities (Martinus Nijhoff 1994) 129ff (generally regarding multilateral instruments as ‘implementation of the brief and general provisions of the constituent instrument of the organization’). 40 See N Blokker, Commentary on Art. I Section 1 General Convention.

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legal sense—unable to act beyond their functional personality. Any acts not covered by such a limited personality are ultra vires. This idea has been aptly captured in the phrase that ‘any activity of an international organization is either official or ultra vires’.41 If international organizations enjoy functional immunity—covering acts in the performance of their functions—and can only act within the scope of their functional personality, there is no room left for non-functional acts for which immunity would be denied. This has led national courts to conclude that ‘the immunity of international organizations, within the framework of their functional restrictions, is to be regarded in principle as absolute’.42 24 That international organizations are accorded absolute immunity may also result from a forum State’s tradition of granting such broad immunity to States. This approach can be seen in US case law where courts rely on statutory language which accords to international organizations the same immunity as States,43 or in jurisdictions where courts consider a parallel to sovereign immunity principles applicable as a matter of customary law. 25 Reliance on the State immunity paradigm may, however, also lead to a more restrictive immunity concept.44 This can be perceived, in particular, in the case law of Italian45 and US courts.46 Their courts often rely upon the iure gestionis/iure imperii dichotomy borrowed from State immunity in order to ascertain the scope of an international organization’s immunity and, sometimes, even to deny jurisdictional immunity in certain situations. 26 In the case of Italy, the application of sovereign immunity principles resulted in many cases from specific reservations to privileges and immunities instruments pursuant to which Italy was only prepared to grant immunity accorded to foreign States under general principles of international law.47 The legality of such a reservation had been controversial and led to a major crisis between Italy as the headquarters State of an international organization and the latter.48 It resulted from the persistent exercise of judicial jurisdiction over cases brought against a UN Specialized Agency, the Food and Agriculture Organization (FAO), as affirmed by the Italian Supreme Court in 1982.49 Only when Italy withdrew its reservation and acceded to the Specialized Agencies Convention without the 41 I Seidl-Hohenveldern in an unpublished report to the ILA Committee on State Immunity, quoted in the Final Report on State Immunity, ILA Buenos Aires Conference 1994, 475. See also I Seidl-Hohenveldern and G Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften (6th edn, Carl Heymanns 1996) 275. 42 Firma Baumeister Ing. Richard L v O, Austria, Supreme Court, 14 December 2004, 10 Ob 53/04 y; ILDC 362 (AT 2004), para 12. 43 US IOIA (n 31). 44 See Tononoka Steels Limited v Eastern and Southern Africa Trade and Development Bank, Kenia, Appeal judgment, Civil Appeal No 255 of 1998, 2 EA 536 (CAK), ILDC 1283 (KE 1999), 13 August 1999, Court of Appeal. 45 See R Pavoni, ‘Italy’, in A Reinisch (n 25), at 155; B I Bonafé, ‘Italian Courts and the Immunity of International Organizations’, (2014) 10 International Organizations Law Review 505–37. 46 See C H Brower II, ‘United States’, in A Reinisch (n 25), at 303. 47 Agreement regarding the Headquarters of the FAO, 31 October 1950, 1409 UNTS 521. For the text of the reservation see Adesione dell’Italia alla Convenzione sui privilegi e le immunità della istituzioni specializzate delle Nazioni Unite, Gazzetta Ufficiale della Repubblica Italiana, Part I, No. 173, 28 July 1952, p. 2791. See also (1963) UNJYB 188; A Reinisch, International Organizations before National Courts (CUP 2000) 186. 48 See for more details on the Italy/ FAO dispute G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention, MN 40ff; R Pavoni, ‘Italy’, in A Reinisch (n 25), at 155ff; A Reinisch, International Organizations before National Courts (CUP 2000) 131ff. 49 Food and Agriculture Organization of the United Nations v Istituto Nazionale di Previdenze per i Dirigenti di Aziende Industriali (INPDAI), Italy, Corte di Cassazione, 18 October 1982, Case No. 5399, (1982) UNJYB 234, 87 ILR 1.

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controversial reservation50 and its courts started to grant FAO unqualified immunity from jurisdiction,51 was this ‘crisis’, which might have led to an advisory opinion by the ICJ pursuant to Art. IX Section 32 Specialized Agencies Convention,52 defused. In the case of the US, the wording of the IOIA clearly indicates that State immunity 27 principles should be relevant for deciding on the jurisdictional immunity of international organizations.53 US courts had difficulty in determining whether the reference to State immunity—made at a time when absolute immunity for foreign States was the accepted principle—was ‘frozen’ in time and thus implied absolute immunity for international organizations or was ‘dynamic’ and thus referred to the principles of State immunity at the time proceedings are brought.54 Since the acceptance of a restrictive immunity doctrine by the US executive branch55 and the adoption of the Foreign Sovereign Immunities Act (FSIA) in 1976,56 restrictive State immunity has been firmly established in US law. This would imply that international organizations should also enjoy only restrictive immunity.57 The majority of US cases, however, managed to avoid this question by holding that even under a restrictive State immunity standard a particular action would be inadmissible against an international organization.58 Recently, a split of opinions manifested itself on the appellate level. While the 28 D.C. Circuit Court held that the reference to the historic absolute State immunity standard would prevail,59 the Court of Appeals for the 3rd Circuit found that the immunity conferred by the IOIA would change with the law of foreign sovereign immunity,60 leading to a denial of immunity for a commercial transaction with a private party.

‘FAO’s Immunity from Legal Process in Italy’, (1986) UNJYB 147. FAO v Colagrossi, Italy, Corte di Cassazione, 18 May 1992, No. 5942, 101 ILR 386. 52 See K Schmalenbach‚ Commentary on Art. IX Sections 31–3 Specialized Agencies Convention (MN 37ff ). 53 Title I Section 2(b) IOIA. For the text see n 31. 54 See C H Brower II, ‘United States’, in A Reinisch (n 25), at 303; A Reinisch, International Organizations before National Courts (CUP 2000) 197ff. 55 See the co-called Tate Letter of the US State Department of 1952, 26 Dep’t State Bull. (1952), 984; see also Alfred Dunhill of London v Republic of Cuba, 425 U.S. 682 (1976). 56 US Foreign Sovereign Immunities Act 1976, 90 Stat. 2891, 28 U.S.C.A. Sections 1330ff; 15 ILM 1388 (1976). 57 Dupree Associates, Inc. v Organization of American States and the General Secretariat of the Organization of American States, U.S. District Court DC, 31 May 1977, 22 June 1977, No. 76-2335 (memorandum orders); 63 ILR 92. 58 Morgan v IBRD, U.S. District Court DC, 13 September 1990, 752 F. Supp. 492 (D.D.C. 1990); De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al, U.S. District Court S.D.N.Y., 10 January 1994, 841 F. Supp. 531 (S.D.N.Y. 1994); Tuck v Pan American Health Organization, U.S. District Court DC, 17 November 1980, No. 80-1546 (D.D.C. 1980); U.S. Court of Appeals DC Cir., 13 November 1981; 668 F.2d 547 (D.C. Cir. 1981), (1981) UNJYB 177. 59 Atkinson v Inter-American Development Bank, 156 F 3d. 1335, at 1341 (D.C. Cir. 1998) (‘In light of this text [of the IOIA] and legislative history, we think that despite the lack of a clear instruction as to whether Congress meant to incorporate in the IOIA subsequent changes to the law of immunity of foreign sovereigns, Congress’ intent was to adopt that body of law only as it existed in 1945—when immunity of foreign sovereigns was absolute.’). 60 OSS Nokalva v European Space Agency, 617 F.3d 756 (3d Cir. 2010) (‘If Congress wanted to tether international organization immunity to the law of foreign sovereign immunity as it existed at the time the IOIA was passed, it could have used language to expressly convey this intent. For example, Congress could have simply stated that international organizations would be entitled to the “same immunity as of the date of this Act”. Or, it could have just specified the substantive scope of the immunity it was conferring. Because it did neither, we interpret the IOIA in light of the Reference Canon to mean that Congress intended that the immunity conferred by the IOIA would adapt with the law of foreign sovereign immunity.’). 50 51

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e) The Impact of Access to Justice on the Immunity of International Organizations 29 In the majority of cases, international organizations enjoy immunity from suit. In practice this often means that plaintiffs will be deprived of a judicial forum where they can have their claims adjudicated. In other words, their right of access to court will not be guaranteed. This problem has been recognized already in a number of early decisions, such as the Belgian Manderlier case61 and the ICJ’s advisory opinion in the Effect of Awards case.62 However, only with the advent of a more acute awareness of the fundamental rights implications of jurisdictional immunity have national courts as well as human rights bodies started to question whether international organizations should enjoy such a broad immunity in all cases. 30 Central to such considerations are the guarantees of access to justice as contained in the Universal Declaration of Human Rights,63 the International Covenant on Civil and Political Rights (ICCPR),64 and regional human rights treaties like the European Convention of Human Rights (ECHR).65 But the underlying thought that potential claimants should have a right to have their claims addressed by an effective dispute settlement mechanism is already expressed in Art. VIII Section 29 General Convention.66 31 In fact, such alternative means of redress are available for a large number of potential plaintiffs: Staff disputes are adjudicated by administrative tribunals, private contractors usually have arbitration clauses and claims settlement mechanisms have been set up for

61 Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Belgium, Tribunal Civil de Bruxelles, 11 May 1966, 45 ILR (1972) 446, at 452; Cour d’appel de Bruxelles, 15 September 1969, Pasicrisie Belge (1969) 247, (1969) UNJYB 236, at 237 (admitting that there was no court to which the appellant could submit his dispute with the United Nations and that this situation ‘does not seem to be in keeping with the principles proclaimed in the Universal Declaration of Human Rights’. 62 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, (1954) ICJ Rep 47, at 57 (finding that it would ‘ . . . hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals . . . that [the United Nations] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them’.). See also the similar language found in Avenol v. Avenol, Juge de Paix Paris, 8 March 1935, 8 Ann. Dig. (1935–37) 395, at 396, where a French court denied the immunity of the League of Nations Secretary-General in a post-separation maintenance payment suit (‘It is not possible that the Covenant of the League of Nations, which Avenol summons to aid his contention, the Covenant which governs the highest moral and judicial authority in the world, entrusted with the establishment of the law of nations, should provide the world with an astonishing example of a provision which is in such flagrant contradiction to the sacred and profound sentiment of justice.’). 63 Art. 10 Universal Declaration of Human Rights, UNGA Res 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN-Doc. A/810 (1948) 71 (‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’). 64 Art. 14(1) International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (1976) (‘[a]ll persons are equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’). 65 Art. 6(1) European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, entered into force 3 September 1953, 213 UNTS 221 (‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’). 66 Art. VIII Section 29(a) General Convention (‘The United Nations shall make provisions for appropriate modes of settlement of . . . disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.’).

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many other potential plaintiffs.67 However, these alternative ways of legal recourse do not cover all types of potential claims. Some international organizations have no administrative tribunals or other mechanism for the settlement of staff disputes. In most cases, administrative tribunals are only competent to decide disputes between organizations and existing staff members. Thus, job applicants and persons performing services for international organizations who are not staff members in a formal sense are often unable to bring legal proceedings before administrative tribunals.68 Private parties without contractual relations with international organizations containing arbitration clauses, such as unsuccessful participants in tender proceedings or victims of traffic accidents or other tort injuries regularly depend upon the goodwill of international organizations to agree on ad hoc arbitration or the establishment of another mechanism for the settlement of such claims.69 It is against this background that human rights bodies together with national, often 32 constitutional, courts have developed the concept that access to justice as guaranteed in international human rights treaties and national fundamental rights provisions must be effective. This implies that exemptions, which include jurisdictional immunity,70 should be granted only where alternative ways of dispute settlement are available and effective. This concept of the availability of an alternative forum has been inspired by the fundamental rights debate within the European Communities in the 1970s and 1980s;71 it was then integrated into the ‘immunity vs. access to court’ debate by national courts and human rights institutions and has nowadays become part of a widely accepted discourse on how international organizations should work. The leading case was Waite and Kennedy,72 in which the ECtHR reconsidered Stras- 33 bourg’s traditional approach to immunities of international organizations, by no longer accepting a general carve-out of international organizations from the jurisdiction of 67 See K Schmalenbach‚ Commentary on Art. VIII Section 29 General Convention. See also B Rashkow, ‘The Immunity of the United Nations. Practice and Challenges’, (2014) 10 International Organizations Law Review 332–48. 68 See eg two cases before the ILO Administrative Tribunal which were dismissed because job applicants were not (yet) staff members, Liaci v EPO, ILOAT Judgment No. 1964, 12 July 2000, and Klausecker v EPO, ILOAT Judgment No. 2657, 11 July 2007. 69 See an overview of the modest publicly available practice in P Glavinis, Les litiges relatifs aux contrats passés entre organisations internationales et personnes privies (Travaux et recherches Panthéon-Assas, Paris II 1990). 70 Some of the older case law was premised on the idea that where certain potential defendants/respondents enjoyed immunity, a State lacked jurisdiction and was not able to grant access to court. See eg Ary Spaans v The Netherlands, ECommHR, Application No. 12516/86, 12 December 1988 (Admissibility), 58 Decisions and Reports (1988) 119 (‘The Commission notes that it is in accordance with international law that States confer immunities and privileges to international bodies like the Iran–United States Claims Tribunal which are situated in their territory. The Commission does not consider that such a restriction of national sovereignty in order to facilitate the working of an international body gives rise to an issue under the Convention.’). 71 National courts like the German Constitutional Court exerted some pressure on the European Community by holding that they would exercise their fundamental rights review even over Community acts ‘as long as’ the Community did not have its own internal corresponding system of control. Internationale HandelsgesellschaftmbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel, Federal Constitutional Court, 29 May 1974, [1974] 2 CMLR 540 (Solange I). Only when the ECJ developed its fundamental rights jurisprudence in the 1970s, national courts renounced their judicial control powers ‘as long as’ the European Community itself provided adequate relief. In re application of Wünsche Handelsgesellschaft, Federal Constitutional Court, 22 October 1986, [1987] 3 CMLR 225 (Solange II). 72 Waite and Kennedy v Germany, Application No. 26083/94, European Court of Human Rights, 18 February 1999, [1999] ECtHR 13; Beer and Regan v Germany, Application No. 28934/95, European Court of Human Rights, 18 February 1999, [1999] ECtHR 6. See C Ryngaert, ‘The Immunity of International Organizations Before Domestic Courts: Recent Trends’, (2010) 7 International Organizations Law Review 121; A Reinisch and U A Weber, ‘In the Shadow of Waite and Kennedy. The Jurisdictional Immunity of

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national courts.73 Instead, the Court recognized that (civil) claims against international organizations involved the right of access to court under Art. 6 ECHR. It further held that while this right of access to justice might be limited for legitimate purposes, such as protecting the independent functioning of an international organization, such limitation was only legitimate and permissible if it was also proportionate. In the Court’s view, the proportionality of the grant of immunity depended upon the availability of ‘reasonable alternative means’ to protect their rights.74 The possibility of legal recourse to administrative tribunals or similar institutions for staff members of an international organization, to arbitration for contractors of international organizations, to claims commissions for victims of vehicle accidents, or military measures taken by peacekeeping forces may embody such alternative remedies.75 34 The notion that individuals have a right of access to justice concerning the determination of their rights and obligations also vis-à-vis international organizations is not only a European approach limited to the contracting parties of the ECHR; it is also expressed by other international courts and tribunals76 as well as administrative tribunals of international organizations which have recognized the ‘general principle’ that employees should have access to a form of employment dispute settlement.77 35 The Waite and Kennedy test linking immunity to the availability of ‘reasonable alternative means’ of redress has been also espoused by a number of national courts, sometimes even to the extent to make the latter a precondition for the former. In particular, French and German jurisprudence demonstrates how national courts may arrive at similar results on the basis of national constitutional law considerations. 36 French courts have traditionally dismissed actions directed against international organizations because they would interfere with the independent operation of such organizations.78 In 1997, however, a French appellate court refused to accord immunity

International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’, (2004) 1 International Organizations Law Review 59. 73

See Spaans v The Netherlands, ECommHR, 1988 (n 70). Waite and Kennedy v Germany (n 72), para 68 (‘ . . . a material factor in determining whether granting . . . immunity from . . . jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’.). 75 In a recent judgment, the ECtHR reaffirmed its Waite and Kennedy jurisprudence, but held that where an unsuccessful job applicant did not have access to an administrative tribunal the organization’s offer to arbitrate the dispute was sufficient as a ‘reasonable alternative means’ of dispute settlement. See Klausecker v Germany, Application No. 415/07, European Court of Human Rights, 29 January 2015, para 106 (‘The Court considers that therefore, the fact that the applicant was denied access to the review procedures set up by the EPO, an international organisation with legal personality which is not a party to the Convention, in relation to the decision of the President of the European Patent Office not to recruit him, but was offered by the EPO an arbitration procedure to have the impugned act of the Office examined, a fortiori does not disclose a manifestly deficient protection of fundamental rights within the EPO.’). 76 See the ICJ in its Effect of Awards Advisory Opinion (n 62). See also Advocate General Tesauro in SAT Fluggesellschaft mbH v EUROCONTROL, Case 364/92, ECR I [1994] 43, at 48 (stressing the ‘inadequacy of the proposition that ascribes absolute immunity to such organizations . . . taking into account, moreover, of the need not to deprive individuals of the protection afforded to subjective rights that might be impaired by the activities of international organizations, . . . ’.). 77 See eg Rubio v Universal Postal Union, ILOAT Judgment No. 1644, 10 July 1997, para 12 (referring to the principle ‘that an employee of an international organisation is entitled to the safeguard of an impartial ruling by an international tribunal on any dispute with the employer’.). 78 Chemidlin v Bureau international des Poids et Mesures, France, Tribunal Civil of Versailles, 27 July 1945, Journal du Palais 1945.2.124, 12 Ann.Dig. (1943–45) 281; International Institute of Refrigeration v Elkaim, France, Court of Appeal of Paris (Twenty-first Chamber), 7 February 1984, 77 ILR 498–506; Cour de 74

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to UNESCO where the claimant would have been deprived of a forum hearing his claims.79 Similarly, in Banque africaine de développement v M.A. Degboe,80 the Cour de Cassation held that the impossibility of access to justice (because of the inexistence of an administrative tribunal) would have constituted a denial of justice and disregarded the organization’s immunity from suit. Already since the 1980s, the German Constitutional Court has been measuring the 37 availability of jurisdictional immunity on the minimum requirements of the rule of law principle contained in the German Constitution. Thus, in Hetzel v EUROCONTROL81 and other cases, it upheld the organization’s immunity because the ILO Administrative Tribunal, exclusively competent for staff disputes, provided an adequate alternative remedy.82 Though the German Constitutional Court has adopted a rather deferential attitude towards the adequacy of alternative means of dispute settlement with international organizations,83 its balancing test evidences that immunity is not unconditional. Similar jurisprudential developments can be seen in Switzerland where the Swiss 38 Federal Supreme Court held in ZM v Arab League84 that an international organization enjoyed absolute immunity in Switzerland only as long as a procedure for the settlement of disputes with private parties existed, and confirmed in Consortium X. v Swiss Federal Government (Conseil federal)85 that the alternative remedies had to be sufficiently effective from a human rights perspective. The most far-reaching use of the Waite and Kennedy doctrine can be found before 39 Belgian courts.86 In Siedler v Western European Union,87 an appellate court found that the Cassation, 1. ch. civ., 8 November 1988; Bull. civ. (1988) I, 211, No. 309; Gazette du Palais, 21 February 1989, 38; 35 AFDI (1989) 875. 79 UNESCO v Boulois, France, Tribunal de grande instance de Paris (ord. Réf.), 20 October 1997, Rev Arb. (1997) 575; Cour d’Appel Paris (14e Ch. A), 19 June 1998, (1999) XXIVa Yearbook Commercial Arbitration, 294, at 295 (UNESCO’s immunity ‘would inevitably lead to preventing [claimant] from bringing his case to a court. This situation would be contrary to public policy as it constitutes a denial of justice and a violation of the provisions of Article 6(1) of the [ECHR]’.). 80 Banque africaine de développement v M.A. Degboe, France, Cour de Cassation, Chambre sociale, 25 janvier 2005, 04-41012, (2005) 132 Journal du droit international 1142. 81 Hetzel v EUROCONTROL, Germany, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59, 63; NJW (1982) 512, DVBl (1982), 189, DÖV (1982) 404. See on the background of Hetzel v EUROCONTROL and the related case of Strech v EUROCONTROL, A Bleckmann, Internationale Beamtenstreitigkeiten vor nationalen Gerichten (Duncker & Humblot 1981); I Seidl-Hohenveldern, Die Immunität internationaler Organisationen in Dienstrechtsstreitfällen (Duncker & Humblot 1981). 82 Hetzel EUROCONTROL (n 81) at 91 (‘ . . . status and procedural principles conformed to an international minimum standard of basic procedural fairness as it results from developed legal orders following the rule of law and from the procedural law of international courts’.). 83 See B. et al v EPO, Germany, Federal Constitutional Court, Second Chamber, 3 July 2006, 2 BvR 1458/ 03, D. v Decision of the EPO Disciplinary Board, Germany, Federal Constitutional Court, Second Chamber, 28 November 2005, 2 BvR 1751/03. 84 ZM v Arab League, Switzerland, Swiss Federal Supreme Court, 4 C.518/1996, unpublished judgment of 25 January 1999, partly published in L Caflisch, ‘La pratique suisse en matière de droit international public 1999’, (2000) 10 Revue suisse de droit international et européen 627, 642. 85 Consortium X. v Swiss Federal Government (Conseil federal), Switzerland, Swiss Federal Supreme Court, 1st Civil Law Chamber, 4A.1/2004/ech, 2 July 2004, partly published as ATF 130 I 312, ILDC 344 (CH 2004). 86 See also E De Brabandere, ‘Belgian Courts and the Immunity of International Organizations’, (2014) 10 International Organizations Law Review 464; C Ryngaert, ‘The Immunity of International Organizations Before Domestic Courts: Recent Trends’, (2010) 7 International Organizations Law Review 121. 87 Siedler v Western European Union, Belgium, Brussels Labour Court of Appeal (4th chamber), 17 September 2003, Journal des Tribunaux 2004, 617, ILDC 53 (BE 2003); upheld on final appeal, Western European Union v Siedler, Belgium, Court of Cassation, Appeal judgment, 21 December 2009, Cass No. S 04 0129 F; ILDC 1625 (BE 2009).

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internally available procedures for the settlement of staff disputes within the Western European Union (WEU) did ‘not offer all the guarantees inherent in the notion of due process’ and that thus ‘the limitation on the access to the normal courts by virtue of the jurisdictional immunity of the WEU [was] incompatible with Article 6(1) ECHR’.88 Conversely, in Energies nouvelles et environnement v Agence spatiale européenne89 a Brussels court upheld ESA’s immunity from suit because in the specific case the claimant had one or more ‘reasonable’ alternative means.90 Belgian courts even extended the Waite and Kennedy rational to enforcement measures in Lutchmaya.91 Since the international organization had not made available any mechanism to execute a compensation judgment rendered against it, the claimant’s right of access to a court was restricted to such an extent that the very substance of this right would be rendered meaningless. 40 Italian court decisions have also upheld the immunity of international organizations in employment disputes as long as they have set up effective alternative dispute settlement procedures. Thus, the judgments in European University Institute v Piette,92 Pistelli v European University Institute,93 and Drago v International Plant Genetic Resources Institute94 have basically endorsed the result of the Waite and Kennedy jurisprudence. 41 In spite of this growing acceptance of the Waite and Kennedy approach, it is too early to say whether national courts will generally follow it.95 Indeed, a number of courts seem to have rejected it and continue to grant immunity to international organizations irrespective of whether alternative mechanisms of dispute settlement exist or not. In fact, the Manderlier case, probably the first to identify the tension between the fundamental right of access to court and the jurisdictional immunity of the UN (see supra MN 29), has already rejected the idea of a ‘conditionality’ between the grant of alternative remedies and immunity.96 88

Siedler v Western European Union, Belgium, Brussels Labour Court of Appeal. paras 62ff. Energies nouvelles et environnement v Agence spatiale européenne, Belgium, Civ. Bruxelles (4e ch.), 1 decembre 2005, (2006) Journal des tribunaux 171. 90 See (2006) Journal des tribunaux 171, 173. In its judgment, the court also explicitly relied upon the case law of the ECtHR and found that the possibility of diplomatic representations by the Belgian representative to ESA or even the seizure of the organization’s ombudsman, while not strictly speaking a form of judicial or administrative redress, would constitute ‘reasonable alternative means’ in the sense of the ECtHR’s jurisprudence. 91 Lutchmaya v General Secretariat of the ACP Group, Belgium, Appeal decision, 4 March 2003, Journal des Tribunaux 2003, 684; ILDC 1363 (BE 2003); General Secretariat of the ACP Group v Lutchmaya, Belgium, Final appeal judgment, 21 December 2009, Cass Nr C 03 0328 F; ILDC 1573 (BE 2009). 92 European University Institute v Piette, (2000) Rivista di Diritto Internazionale Privato e Processuale 472 (Court of Cassation, 18 March 1999 No 149). 93 Paola Pistelli v European University Institute, Italy, ILDC 297 (IT 2005). 94 Drago v International Plant Genetic Resources Institute (2007) Giustizia civile Massimario 2, Italy, ILDC 827 (IT 2007). 95 See C Ryngaert (n 86); A Reinisch and U A Weber, ‘In the Shadow of Waite and Kennedy. The Jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’, (2004) 1 International Organizations Law Review 59; A Reinisch, ‘The Immunity of International Organizations and the Jurisdiction of Their Administrative Tribunals’, (2008) 7 Chinese Journal of International Law 285. 96 Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Tribunal Civil de Bruxelles, 11 May 1966, 45 ILR 446, at 452 (‘That immunity is unconditional, and has been so since the conclusion of the Convention in 1946. It was not abrogated, either conditionally or finally, by the Declaration of 1948. It is true that the European Convention for the Protection of Human Rights and Fundamental Freedoms, concluded at Rome on 4 November 1950, contains in Article 6 a provision more or less similar to that of Article 10 of the Universal Declaration. The Law of 13 May 1955 approved the Rome Convention and decided that it should have full and complete effect; the Convention has thus been incorporated into Belgian 89

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Another case in point is the UK judgment in Entico Corp Ltd v UNESCO and Another,97 where the High Court rejected the argument that the right to a fair trial under Art. 6 ECHR ‘conditioned’ UNESCO’s immunity. Rather, it found that the Waite and Kennedy reasoning was inapplicable because the applicable immunity instrument, the Specialized Agencies Convention, had been adopted long before the ECHR entered into force for a minority of the Specialized Agencies Convention’s contracting Parties. A similar thinking seemed to underlie the appellate court decision in Brzak v United Nations et al,98 which remarked that pre-existing immunities as under the General Convention were not touched by any potential constitutional ‘due process right to access the courts’99 nor by the obligation under the General Convention to provide for alternative dispute settlement under Art. VIII Section 29.100 This was recently affirmed by the US District Court for the Southern District of New York in the well-publicized compensation class action case arising from the Haiti cholera epidemic, Georges v United Nations.101 Expressly relying on Brzak, the US court held that ‘ . . . nothing in the text of the CPIUN suggests that the absolute immunity of section 2 is conditioned on the UN’s providing the alternative modes of settlement contemplated by section 29’.102 While acknowledging that Art. VIII Section 29 was more than merely ‘aspirational’ and contains a true obligation to provide for appropriate modes of dispute settlement, the Georges court was clear that it did not see a conditionality between compliance with this obligation and the enjoyment of immunity.103 The Dutch Supreme Court in the Srebrenica case104 rejected the Waite and Kennedy approach too. It held that the ECtHR had not considered the relationship between Art. 6 ECHR and Art. 103 UN Charter.105 It thus found that there was no reason to assume

Law. However, that Convention was concluded between fourteen European States only, and cannot be applied to and imposed upon the United Nations. Section 2 of the Convention [on Privileges and Immunities] of 13 February 1946 is binding and has full force, even though no court has been set up in pursuance of Section 29.’). See on the ‘conditionality’ issue also K Schmalenbach, Commentary on Art. VIII Section 29 General Convention, MN 9ff. 97 Entico Corp Ltd v United Nations Educational, Scientific and Cultural Organization and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 531 (Comm) (18 March 2008). 98 Cynthia Brzak and Nasr Ishak v United Nations, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), 597 F.3d 107 (2d Cir. 2010). See also text at n 182. 99 Brzak v United Nations, 597 F.3d 107, at 114 (2d Cir. 2010). 100 Art. VIII Section 29(a) General Convention. 101 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). 102 ibid. at 5. 103 ibid. at 6 (‘It is true that section 29 uses mandatory language, providing that the UN “shall make provisions for appropriate modes of settlement of . . . disputes. . . . ” This language may suggest that section 29 is more than merely aspirational—that it is obligatory and perhaps enforceable. But even if that is so, the use of the word “shall” in section 29 cannot fairly be read to override the clear and specific grant of “immunity from every form of legal process”—absent an express waiver—in section 2, as construed by the Second Circuit.’). 104 Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012). See also T Henquet, ‘The Jurisdictional Immunity of International Organizations in the Netherlands and the View from Strasbourg’, (2014) 10 International Organizations Law Review 538–71; R van Alebeek and A Nollkaemper, ‘The Netherlands’, in A Reinisch (n 25), at 179–206. 105 Stichting Mothers of Srebrenica and ors v Netherlands and United Nations (n 104), para 4.3.3. See also MN 78.

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that the ECtHR had meant to include the UN when it had held that the availability of ‘reasonable alternative means to protect effectively their rights under the Convention’ was ‘a material factor’ in determining whether the grant of immunity to an international organization was permissible under the ECHR. This was particularly implausible in the Dutch Supreme Court’s view as regards acts of the UN under Chapter VII of the UN Charter.106 47 This decision was upheld in the ECtHR’s judgment in Stichting Mothers of Srebrenica v The Netherlands,107 where the Strasbourg court found no violation of the right of access to court as a result of respecting the UN’s immunity from suit. According to the ECtHR, it would not follow ‘that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court’.108 The Court expressly relied on the ICJ’s Jurisdictional Immunities case109 with regard to sovereign immunity and went on to say that Waite and Kennedy could not be interpreted ‘in such absolute terms either.’110 48 Similarly, in its judgment in Perez v Germany,111 the ECtHR dismissed a claim by a former United Nations Volunteers (UNV) employee, who had argued that the alternative legal protection offered under the UN Administrative Tribunal (UNAT)112 system was not an effective alternative remedy justifying the grant of immunity by Germany, for reasons of non-exhaustion of local remedies. Still, the Strasbourg Court stressed the crucial importance of access to justice also for UN employees113 and referred to the ‘deficient procedures before the UN internal appeal bodies and the UNAT’,114 as stated by the Redesign Panel.115 49 While it remains to be seen to what extent national courts also beyond Europe will follow the Waite and Kennedy doctrine, it is clear that the human rights-inspired requirement of effective alternative remedies being available against international organizations 106 This was seen differently by the appellate court, Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands, Court of Appeal, 30 March 2010, LJN: BL8979, para 5.12, which held that the Waite and Kennedy test did apply, but that the UN’s immunity from legal process did not violate the plaintiff ’s right of access to court because an alternative recourse against the State of the Netherlands was still available. 107 Stichting Mothers of Srebrenica v The Netherlands, Application No. 65542/12, European Court of Human Rights, 11 June 2013. 108 ibid. para 164. 109 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (n 17). 110 Stichting Mothers of Srebrenica v The Netherlands, Application No. 65542/12, 11 June 2013, para 164. 111 Perez v Germany, Application No. 15521/08, European Court of Human Rights, 29 January 2015. 112 Statute of the Administrative Tribunal of the United Nations, as adopted by the General Assembly by UNGA Res 351 A (IV) on 24 November 1949 and amended by UNGA Res 782 B (VIII) on 9 December 1953, by UNGA Res 957 (X) on 8 November 1955, by UNGA Res 50/54 on 11 December 1995, by UNGA Res 52/166 on 15 December 1997, by UNGA Res 55/159 on 12 December 2000, by UNGA Res 58/87 on 9 December 2003, and by UNGA Res 59/283 of 13 April 2005. The UNAT was replaced in 2008 by the twotiered internal justice system, consisting of a UN Dispute Tribunal as well as a UN Appeals Tribunal; see Administration of justice at the United Nations, A/RES/62/228, 6 February 2008, para 39 (‘Decides to establish a two-tier formal system of administration of justice, comprising a first instance United Nations Dispute Tribunal and an appellate instance United Nations Appeals Tribunal as from 1 January 2009.’). 113 Perez v Germany (n 111), para 93 (‘The Court limits itself to reiterate that it would be incompatible with the purpose and object of the Convention if the Contracting States, by attributing immunities to international organisations, were absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. This applies, in particular, to the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. . . . ’). 114 ibid. para 95. 115 Report of the Redesign Panel on the United Nations system of administration of justice, UN-Doc. A/61/ 205, 28 July 2006.

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has also affected the question whether international organizations should enjoy immunity from suit.116

D. Key Elements ‘The United Nations, . . .’ The notion ‘United Nations’ comprises both the organization itself and its organs, 50 including subsidiary organs.117 It does not extend to entities having their own legal personality, even though they may be related to the UN. Thus, the Specialized Agencies, which are in spite of their name separate international organizations, do not benefit from the immunity provided for in this section. Rather, they enjoy the immunity enshrined in the parallel provision of the Specialized Agencies Convention.118 Other UN related entities which also have independent legal personality must enjoy their own immunity in order to be exempt from the jurisdiction of national courts; neither they nor third parties can ‘participate’ in a kind of ‘derivative’ immunity.119 However, any entities that can be regarded as part of the UN, usually because they are organs or subsidiary organs, will enjoy the UN’s immunity.120 Thus, when court proceedings are instituted naming as defendants UN organs or UN 51 offices, established in member States that do not have their own legal personality, courts usually have no problem in recognizing that the suit is in fact brought against the UN. An example of the former type of claim directed against a UN organ instead of the 52 UN itself is the employment discrimination suit of Boimah v United Nations General Assembly.121

116 See also A Ziegler, ‘Article 105, in B Simma, D E Kahn, G Nolte, and A Paulus (eds), The Charter of the United Nations (3rd edn, OUP 2012) 2166, MN 20 (‘As long as alternative means of legal recourse (internal appeal procedures; arbitration) are at the claimant’s disposal, neither Art. 14 ICCPR, nor Art. 6 ECHR, nor constitutional guarantees by States compel national courts to deny immunity and to start legal proceedings against the UN.’). See also A Reinisch ‘To What Extent Can and Should National Courts “Fill the Accountability Gap”?’, (2014) 10 International Organizations Law Review 572–87. 117 A Ziegler, ‘Article 105’ in B Simma (n 116), at 2165, MN 17. 118 See G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention. 119 See Herbert Harvey Inc. v National Labor Relations Board, 385 F.2d 684 (D.C. Cir. 1967), 424 F.2d 770 (D.C. Cir. 1969), for the unsuccessful claim of a contractor engaged by the World Bank that he enjoyed an immunity derived from that international organization. See also International Bank for Reconstruction and Development v District of Columbia, 171 F.3d 687 (D.C. Cir. 1999) where the same district court dismissed the idea of a ‘derivative’ tax immunity claimed by a contractor of the World Bank. See also E Okeke, Commentary on Annex VI (IBRD) Specialized Agencies Convention, MN 40. 120 See with regard to the UN Joint Staff Pension Fund, UN Office of Legal Affairs, Note to the SecretaryGeneral regarding the Staff Council resolution 42/24 proposing to hire Counsel and explore the possibility of bringing a legal action in the United States of America Federal Courts, 20 February 2007, (2007) UNJYB 395, 396 (‘The Fund has been established as a subsidiary body of the General Assembly in accordance with Article 22 of the Charter of the United Nations and, therefore, is an integral part of the United Nations. . . . Accordingly, the Fund and its assets enjoy the same status, privileges and immunities as does the Organization.’). See with regard to UNDP and United Nations Volunteers (UNV) Perez v Germany, Application No. 15521/08, European Court of Human Rights, 29 January 2015, para. 22 (‘The United Nations Development Programme (UNDP) and the United Nations Volunteers Programme (UNV) are subsidiary organs of the UN established by the Organisation’s General Assembly.’). 121 Boimah v United Nations General Assembly, 664 F. Supp. 69, 71 (E.D.N.Y. 1987) (holding that the UN General Assembly ‘as one of the six principal organs of the United Nations . . . enjoys these same immunities [as provided in the General Convention and in the IOIA]’.).

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Legal proceedings directed against subsidiary organs of UN organs and against UN offices have also been treated as lawsuits against the UN itself. For instance, the cases against the UN Economic Commission for Latin America, like X. v UN Economic Commission for Latin America122 or Diaz-Diaz v U.N. Economic Commission for Latin America,123 or those directed against the UNHCR, as in Dutto v United Nations High Commissioner for Refugees,124 or legal proceedings instituted against UNICEF were treated as suits against the UN.125 Also joint subsidiary organs like the World Food Program (WFP), which was set up by the UN and FAO, enjoy immunity pursuant to the UN Charter and Art. II Section 2 General Convention.126 54 Sometimes host agreements with subsidiary organs expressly call for the application of the General Convention’s immunity provision. Thus, in Milosevic v ICTY,127 the

122 X. v. UN Economic Commission for Latin America, Chile, Supreme Court, 8 November 1969, (1969) UNJYB 237. See also A N Vorkink and M C Hakuta, Lawsuits Against International Organizations—Cases in National Courts Involving Staff and Employment (World Bank Legal Department 1985) 23, regarding the immunity provisions of the Headquarters Agreement between Chile and the UN Economic Commission for Latin America, Agreement between Chile and the UN Economic Commission for Latin America of 16 February 1953, as ‘merely a specific application of Art II section 2 and Art V section 18 of the [General Convention]’. 123 Diaz-Diaz v U.N. Economic Commission for Latin America, Mexico, Junta de Conciliacion y Arbitraje, 7 August 1953, Annual Report of the Secretary General, 9 U.N. GAOR, Supp. (No. 1) 105, UN-Doc. A/2661; Supreme Court, 28 April 1954, Annual Report of the Secretary General, 9 UN GAOR, Supp. (No. 1) 105, UN-Doc. A/2663 (1954); see also A N Vorkink and M C Hakuta (n 122), at 14. 124 Dutto v United Nations High Commissioner for Refugees, Argentina, Labour Court of Appeals, 31 May 1989, Case No. 87.803, La Ley (1989), D, 532; 117 JDI (1990) 448; 89 ILR (1992) 90–2. 125 Investment & Finance Company of 11 January 1984 Limited (Investerings- & Finansieringsselskabet af 11/1 1984 ApS) v UNICEF, Denmark, First Instance, Case No U 2000 478 , ILDC 64 (DK 1999), 26 August 1999, High Court for Eastern Denmark; Hunter v United Nations, UNICEF and ors, Judicial Review of Administrative Order, 800 N.Y.S. 2d 347 (Sup. Ct. N.Y. County 2004), ILDC 693 (US 2004), 15 November 2004, Supreme Court [N.Y. Sup.] para 19 (‘There seems to be little question that UNICEF, as a United Nations agency, is treated as an international organization. . . . ’). See also UN Office of Legal Affairs, Note verbale to the Permanent Representative of [Member State] to the United Nations, ‘Illegal seizure of UNICEF property to satisfy court order—Immunity of the United Nations from civil suit—Arbitration—Article VIII, section 29(a), of the Convention on the Privileges and Immunities of the United Nations (2 February 2000)’, (2000) UNJYB 346ff. (‘ . . . as a subsidiary organ of the United Nations, UNICEF is entitled to the privileges and immunities provided for in the Convention on the Privileges and Immunities of the United Nations. . . . ’). 126 Bisson v United Nations, World Food Program and ors, Decision on a Report and Recommendation of a US Magistrate Judge, Case No 06-6352, ILDC 889 (US 2008), 11 February 2008, District Court for the Southern District of New York [S.D.N.Y.], para 15 (‘The facts that the WFP acts under the authority of the UN and FAO, members of the UN and FAO guide the WFP, and the UN and FAO specifically intended the WFP to be considered a “program” of those organizations, lead the Court to conclude that the WFP is merely a UN/FAO joint program and not an independent organization. Accordingly, the WFP is entitled to the UN’s immunity under the UN Convention and IOIA.’). See also UN Office of Legal Affairs, Note verbale to a Permanent Representative of a Member State to the United Nations regarding the freezing of bank accounts of the World Food Programme, 16 July 2004, (2004) UNJYB 326, 327 (‘The status of the WFP, as a joint subsidiary organ of the United Nations and the FAO, is regulated by the Convention on Privileges and Immunities of the Specialized Agencies, 1947, to which [State] has been a party since [date] and the Convention on Privileges and Immunities of the United Nations, 1946, to which [State] has been a party since [date].’). 127 Milosevic v 1. International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, 2. The Netherlands, The Netherlands, The Hague District Court, KG 02/105, Judgement in interim injunction proceedings, 26 February 2002, (2002) UNJYB 505, 508 (‘Article 30, paragraph 1, of the Statute, which forms part of resolution 827, and article IV of the Headquarters Agreement declare the Immunities Convention to be applicable to the Tribunal. Article II of the Immunities Convention and article VIII of the Headquarters Agreement provide that “The United Nations (The Tribunal) . . . shall enjoy immunity from every form of legal process, except insofar as in any particular case it [the United Nations/the Tribunal] has expressly waived its

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Yugoslavia Tribunal, a subsidiary organ of the UN Security Council, was held to enjoy immunity from legal process. Similarly, in a number of cases directed against UNDP128 or UNRWA,129 national 55 courts applied the immunity regime of the General Convention, recognizing that these UN subsidiary organs130 enjoy the privileges and immunities of the UN. Though, of course,

immunity”. It follows from this that the Tribunal may invoke its immunity, since it has not waived this immunity in the present case.’). 128

Sharma v UNDP Regional Manager, South Asia, India, Office of the Labour Commissioner, Delhi Administration, 10 October 1983, cited in A N Vorkink and M C Hakuta (n 122), at 51; Sadikoglu v United Nations Development Programme, Civ. A. No. 11-0294 (PKC), 2011 WL 4953994 at *3 (S.D.N.Y. Oct. 14, 2011); Basem Husein Rasheed Saleh v UNDP, Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2008/ 220, Judicial Authority, 6 April 2009 (on file with the author); Al-Dar Palestinian Company for Construction and Reconstruction/Dar Co. Ltd v United Nations Development Program, Palestinian People Aid Program (UNDP/ PAPP), Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2009/170, Judicial Authority, 24 June 2009 (on file with the author); David H. Lempert v Susan Rice, U.S. Ambassador to the United Nations, United Nations, United Nations Development Programme, Civ. A. No. 12-01518 (CKK), 2013 U.S. Dist. LEXIS 101525 (D. C. July 19, 2013) (‘ . . . the Court concludes that as a subsidiary program of the UN that reports directly to the General Assembly, the UNDP also enjoys immunity under the Convention. . . . ’); Wafa Hamudv UNDP, Israel, Regional Labor Court of Jerusalem, Case No. 1987-09, 7 November 2011 (on file with the author); Dajani Pal Tourist & Travel Agency v UNDP, Magistrates Court in Jerusalem, Civil Case No. 32295-10-11, 17 June 2013 (on file with the author), para 19 (‘Defendant is an arm of the United Nations organization, and as such enjoys absolute immunity.’). See also UN Office of Legal Affairs, Note verbale to the Permanent Representative of a Member State to the United Nations regarding a civil suit instituted in the Conciliation and Arbitration Board, 23 May 2008, (2008) UNJYB 406 (‘The Legal Counsel wishes to recall that both UNDP and UNFPA are an integral part of the United Nations. Thus, UNDP and UNFPA, as well as its officials, enjoy the privileges and immunities provided for in the Convention on the Privileges and Immunities of the United Nations. . . . ’). 129 See Awad Iskandar Guirgis v UNRWA Representative and the Director, Department of Palestine Affairs, Egypt, Cairo Court of First Instance, Department 23—Labour Tribunal, Case No. 258 of 1958; judgement delivered on 31 December 1961 (holding that UNRWA, as a subsidiary organ of the United Nations, enjoyed the privileges and immunities of the General Convention); similarly Hilpern v UNRWA, Egyptian Court, 1952, Annual Report of the Director of UNRWA, 8 U.N. GAOR, Supp. (No. 12) 26, UN-Doc. A/2470 (1953); Annual Report of the Secretary General, 9 U.N. GAOR, Supp. (No. 1) 107, UN-Doc. A/2663 (1954); A N Vorkink and M C Hakuta (n 122), at 11; Radicopoulos v UNRWA, Egyptian Court, 1957, Annual Report of the Director of UNRWA, 13 U.N. GAOR, Supp. (No. 14) 41, UN-Doc. A/3931 (1958); A N Vorkink and M C Hakuta (n 122), 16; Anonymous v Decision of the Provincial Revenue Authority for Vienna, Austria, Administrative Court, Case No. 81/13/0031, 28 October 1981 (on file with the author) (as a sub-organization of the UN, UNRWA benefited from the provisions of the treaty concluded by the Commissioner-General of UNRWA and the Austrian Minister of Foreign Affairs pointing, inter alia, to the General Convention); Saja Ibrahim v Red Crescent Association, UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 2524/08, 5 May 2011 (on file with the author); Bustami v UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 1650/07 (1093/ 09), 2 March 2009 (on file with the author); Al-Masri v UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 502330-030-13, Position of the Attorney General, 18 August 2013 (on file with the author); Iyov v UNRWA, Israel, Regional Labor Court of Jerusalem, Case No. 24931-12-11, Position of the State Attorney General, 4 June 2012 (on file with the author), para 3 (‘In light of the fact that the Defendant, UNRWA, is an organization of the United Nations, and according to the law the UN has immunity from judgment, the position of the State Attorney General is that the lawsuit should be dismissed in limine. . . . ’). 130 UNDP was founded on 22 November 1965 by UNGA Res 2029 through the merger of the Expanded Programme of Technical Assistance (EPTA) and the United Nations Special Fund in order to avoid duplication of their activities. EPTA’s task was to help the economic and political aspects of underdeveloped countries while the Special Fund was envisaged to enlarge the scope of UN technical assistance. UNDP began operating in 1966. UNRWA was set up by UNGA Res 302 (IV) of 8 December 1949 and began its operations on 1 May 1950. In addition, for Israel the so-called Comay-Michelmore Agreement, 14 June 1967, 620 UNTS 183, provides that the General Convention ‘shall govern the relations between the Government and UNRWA in all that concerns UNRWA’s functions’. REINISCH

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sometimes courts failed to recognize the proper status of UNRWA131 or the United Nations University.132 56 Other types of cases involving an imprecisely named defendant are exemplified by the Argentine case of Bergaveche v United Nations Information Centre133 where an employee of the UN’s Information Centre sued his employer because of the non-renewal of a fixed-term contract. The court clearly saw this as an action against the UN itself and dismissed the action. Also in Schuster v UN Information Center,134 another Argentinian case directed against the UN Information Centre was dismissed. 57 In the majority of cases claimants institute proceedings against the UN properly identifying the organization as the defendant or co-defendant.135 58 It is clear that all actions directed against UN organs and subsidiary organs are actions legally directed against the UN. This is also important for UN peacekeeping operations 131 See eg YY. v UNRWA, Egypt, Court in Gaza, 17 August 1957, Annual Report of the Director of UNRWA, 12 U.N. GAOR, Supp. (No. 14) 47, n 34, UN-Doc. A/3686 (1957); Annual Report of the Director of UNRWA, 13 U.N. GAOR, Supp. (No. 14) 41, UN-Doc. A/3931 (1958); A N Vorkink and M C Hakuta (n 122), at 17 (‘UNRWA was not an organ of the United Nations; that under the Agreement of 1950 it did not enjoy jurisdictional immunity; and that, therefore, the court was competent to hear a claim lodged against [UNRWA] by a former staff member.’). See also Y. v UNRWA, Jordan, Magistrate Court, January 1954, Annual Report of the Director of UNRWA, 9 U.N. GAOR, Supp. (No. 17) 31, UN-Doc. A/2717 (1954); A N Vorkink and M C Hakuta (n 122), at 13; W. v UNRWA, Lebanon, Labor tribunal attached to the Ministry of National Economy, 1952, Annual Report of the Director of UNRWA, 8 U.N. GAOR, Supp. (No. 12) 25, UN-Doc. A/2470 (1953); A N Vorkink and M C Hakuta (n 122), at 12, and X. v UNRWA, Lebanon, Labor Arbitration Tribunal, July 1953, Annual Report of the Secretary General, 9 U.N. GAOR, Supp. (No. 1) 106, UN-Doc. A/2663 (1954); A N Vorkink and M C Hakuta (n 122), at 13. 132 Shigeko Ui v United Nations University, Japan, Tokyo District Court, 21 September 1977, (1980) 23 The Japanese Annual of International Law 196–200 (although the United Nations University (UNU) was formally established by UNGA Res 3081 (XXVIII), the court held that the UNU was endowed with a wide range of autonomy and independence from the United Nations and thus not on organ or subsidiary organ of the UN. Nevertheless, it found that UNU was immune from legal proceedings in Japanese courts because its Charter provided for the same privileges and immunities as those stipulated in Arts. 104 and 105 UN Charter). 133 Bergaveche v United Nations Information Centre, Argentina, Juzgado del Trabajo No. 17, Buenos Aires, 7 February 1956, Annual Report of the Secretary General, 12 U.N. GAOR, Supp. (No. 1) 124, UN-Doc. A/3594; Camara Nacional de Apelaciones del Trabajo de la Capital Federal, 19 March 1958, 94 Revista Juridica Argentina La Ley (1959), 585; 26 ILR (1958-II), 620; A N Vorkink and M C Hakuta (n 122), at 17; summarized in United Nations Secretariat, 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—Extract from the Yearbook of the International Law Commission 1967 Vol. II (UN-Doc. A/CN.4/L.118) (hereinafter: UN Secretariat Study 1967) 224. 134 Schuster v UN Information Center, Argentina, National Labor Court, CSJN, 31 July 1951, 1952; Annual Report of the Secretary General, 7 U.N. GAOR, Supp. (No. 1) 165, UN-Doc. A/2141 (1952); Annual Report of the Secretary General, 8 U.N. GAOR, Supp. (No. 1) 149, UN-Doc. A/2404 (1953); A N Vorkink and M C Hakuta (n 122), at 11 (reasoning that the UN was a juridical person under public international law.). 135 See eg Adbi Hosh Askir v United Nations, Hon. Boutros Boutros-Ghali, Joseph E. Connor, Brown & Root Services Corp. and ‘Doe’ Corporations, 933 F. Supp. 368 (S.D.N.Y. 1996); De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al, 841 F. Supp. 531 (S.D.N.Y. 1994); Urban v United Nations, 768 F.2d 1497, 248 U.S. App. D.C. 64 (DC Cir. 1985); Cynthia Brzak and Nasr Ishak v United Nations, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), 597 F.3d 107 (2d Cir. 2010); 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); Wencak v United Nations, Supreme Ct. N. Y. of 18 June 1956, N.Y.L.J., 6, col. 7, Jan. 19, 1956; 23 ILR 509–10. (This action for damages against the UN arose from accident claims against United Nations Relief and Rehabilitation Administration (UNRRA). At the time the suit was brought, UNRRA had already been liquidated. However, in an agreement between UNRRA and the UN concerning the transfer to the United Nations of Residual Assets and Activities of the United Nations Relief and Rehabilitation Administration of 1948, 27 UNTS 349, the UN had undertaken to settle any outstanding claims against UNRRA. Thus, the action was properly directed against the UN.)

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which do not enjoy separate legal personality, but are subsidiary organs, normally of the UN Security Council and exceptionally of the General Assembly.136 Thus, when in the Srebrenica litigation137 before the Dutch courts (see supra MN 46), 59 a tort action was brought alleging that the UN peacekeeping force UNPROFOR, established by Security Council resolutions, had failed to effectively carry out its mandate to create safe-havens for the civilian population it was properly instituted against the UN itself. Similarly, in the Belgian Manderlier cases138 (see infra MN 76), where claims arising 60 from damage caused by UN forces in the Congo were brought, the action was properly launched against the UN. ‘ . . . , its property and assets wherever located and by whomsoever held, . . .’ Art. II Section 2 General Convention specifically mentions the ‘property and assets’ of the 61 UN.139 According to the formulation of Art. II Section 2, the UN’s ‘property and assets’, like the UN itself, seem to enjoy immunity from every form of legal process. But since property or assets usually do not have their own legal personality and thus cannot be sued in legal proceedings, the immunity from legal process in this context should be understood to refer to execution measures taken against them. This reading is also supported by the fact that the inviolability provision of Art. II Section 3 General Convention states that the ‘property and assets’ of the UN ‘shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action’.140 The Convention does not define the notion of ‘property and assets’. The term must 62 therefore be interpreted according to general notions and principles of property law. In many legal systems, the notion ‘property’ may be linked to both ‘real’ property and chattel, or immovable and movable property; sometimes it may be questionable whether 136 See eg Mahalwas v United Nations Truce Supervision Organization and Attorney General (intervening), Jerusalem District Court, Appeal Decision, PLA 3093/07, ILDC 1070 (IL 2007), 15 August 2007, para 9 (‘Since there is no dispute that the Respondent is a unit of the United Nations, we shall now examine the scope of the immunity of the United Nations. . . . ’); Siragnian Reuven Paul v United Nations Truce Supervision Organization, Misc. Civ. App. (District Court, Jerusalem) 4262/04, Civil Claim 5234/03, Takdin District Court Rulings 2005(1), 2524 (2005); Nicol v United Nations Mission in Liberia, Civil Action No. 09-1800, at 5 (E.D. Pa. July 30, 2009) (‘UNMIL enjoys the same immunity as the United Nations. UNMIL is an extension program of the United Nations, and is not devoid of immunity.’); 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) 7 (‘ . . . the UN and its subsidiary body MINUSTAH are immune from suit’.). 137 Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands, Court of First Instance, 10 July 2008, LJN: BD6796, 295247/HA ZA 07-2973 Judgment in the incidental proceedings; Court of Appeal, 30 March 2010, LJN: BL8979; Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012). 138 Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Tribunal Civil de Bruxelles, 11 May 1966, Cour d’appel de Bruxelles, 15 September 1969; (1969) UNJYB 236. 139 Art. I Section 1 General Convention confirms the UN’s ‘capacity’ to ‘acquire and dispose of immovable and movable property’. According to the travaux préparatoires of the UN Charter, this clearly includes the capacity to possess and own property. See 13 UNCIO-Doc. 710 (1945) (Report of the Rapporteur of Committee IV/2, as approved by the Committee, June 12, 1945) (‘The Organization must be able, in its own name, to contract, to hold movable and immovable property, to appear in court. These are only examples.’). See also N Blokker, Commentary on Art. I Section 1 General Convention, MN 3 for further reference. 140 See L Bartholomeusz, Commentary on Art. II Section 3 General Convention, MN 19ff.

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intangible property is also covered. However, the expression ‘assets’ is usually regarded as a broader notion comprising anything of economic value that can be owned.141 63 The reference to such ‘property and assets’ ‘wherever located and by whomsoever held’ indicates that the actual location or possession is irrelevant; what is determinative for the exemption from execution measures is the ownership of the UN. Thus, bank accounts of the UN held by commercial banks in the seat States or elsewhere enjoy the same level of protection as UN office material or operational assets. 64 The UN Pension Fund’s assets have also been qualified as assets of the UN enjoying the immunity under this provision.142 ‘ . . . shall enjoy immunity from every form of legal process . . .’ 65 Art. II Section 2 General Convention confers immunity on the UN. As a treaty provision this conferment of immunity is binding upon the contracting Parties of the General Convention. In many States, the provision is also considered to be directly applicable. Of course, this depends primarily on the domestic (constitutional) legal principles incorporating treaty obligations into domestic law.143 Thus, there is ample case law in which courts directly relied on this provision in order to uphold the UN’s immunity.144 Where States are not able to directly apply Art. II Section 2 General Convention, it has been the official UN position that they have to take the necessary measures in order to ensure its effective implementation.145 66 The self-executing nature of Art. II Section 2 General Convention was a crucial issue in the appellate decision in Brzak v United Nations et al,146 in which plaintiffs had argued that the General Convention was not directly applicable in the US legal order. This view was, however, rejected by the appellate court looking at ‘the text, the negotiation and 141 See also G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention, MN 28, suggesting that intangible property such as intellectual property rights fall within the notion of ‘assets’. 142 Shamsee v Shamsee, 428 NYS2d 33, 36 (2d Dep’t 1980), (1980) UNJYB 222 (‘ . . . the Pension Fund is an organ of the United Nations, subject to regulation by the General Assembly, and that its assets, although held separately from other United Nations property, are the property of that international organization’. It thus concluded that the funds against which a sequestration order was sought were ‘impervious to legal process under both section 2 of the [General] Convention and section 288a [of the IOIA]’.). See also the older case of Gregoire v Gregoire, New York Law Journal, 28 February 1952, cited in the UN Secretariat Study 1967 (n 133), at 223, dismissing a sequestration order directed against the United Nations Provident and Pension Funds. 143 See C Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R Wolfrum (n 21), at 10, para 5. 144 See Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Belgium, Tribunal Civil de Bruxelles, 11 May 1966, 45 ILR (1972) 446, at 451 (‘This international Convention [the General Convention] was approved by the Law of 28 August 1948, which decreed that it should be given full and complete effect. Consequently, the provisions of the Convention have the force of law in Belgium and are binding upon the Belgian courts.’). 145 See eg Office of Legal Affairs, Note verbale to the Permanent Representative of [Member State] to the United Nations, ‘Illegal seizure of UNICEF property to satisfy court order—Immunity of the United Nations from civil suit—Arbitration—Article VIII, section 29(a), of the Convention on the Privileges and Immunities of the United Nations (2 February 2000)’, (2000) UNJYB 346 (‘In accordance with section 34 of the Convention, the Government of [Member State] has a legal obligation to “be in a position under its own law to give effect to the terms of this Convention”. Any interpretation of the provisions of the Convention must be carried out within the spirit of the underlying principles of the Charter of the United Nations, and in particular Article 105 thereof, which provides that the Organization shall enjoy such privileges and immunities as are necessary for the fulfilment of its purposes.’). 146 Cynthia Brzak and Nasr Ishak v United Nations, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), 597 F.3d 107 (2d Cir 2010); see also MN 80.

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drafting history, and the postratification understanding of the signatory nations’ in order to conclude that the Convention was ‘self-executing and applie[d] in American courts without implementing legislation’.147 The expression ‘legal process’ is not defined in the Convention. The term originally 67 proposed during drafting was ‘judicial process’.148 It was subsequently changed to ‘legal process’ which was apparently considered to be broader and to comprise also steps preceding lawsuits and following them.149 Thus, it probably comprises also enforcement measures (see infra MN 69ff ). The term ‘legal process’ is often understood in a particularly broad fashion. In practice, it 68 is frequently meant to include any action taken by court150 or even other law-enforcement organs of a State in a broad sense.151 Such a broad reading can also be found in judicial practice.152

a) Does ‘Every Form of Legal Process’ Include Both Adjudicatory and Enforcement Jurisdiction? The expression ‘immunity from every form of legal process’ could be understood to 69 refer only to the adjudicatory or jurisdictional phase, as opposed to the enforcement or execution phase before national courts or other organs. However, there are valid 147 ibid. 597 F.3d 107 (2d Cir 2010). The self-executing character of the General Convention was recently affirmed in 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. 148 Report of the Preparatory Commission of the United Nations, 23 December 1945, PC/20, Chapter VII, Sec. 1, 72. 149 See UN Division of Immunities and Registration of Treaties, Waiver of Immunity—Actual and Implied, 20 December 1948 (‘Since the words, “legal process” were substituted by the Preparatory Commission for the words “judicial proceedings”, it would appear that these words were directed toward court proceedings but that it was thought desirable that it should be stated expressly that the immunity extended not merely to the proceedings themselves but also to the steps in a legal action preparatory and subsequent to such judicial proceedings, thus for example, execution is a legal process from which the United Nations is immune, although it is not a judicial proceeding, but a consequence of one.’). 150 Cf. Explanatory Note, Key privileges and immunities of UNRWA and related responsibilities and standard operating procedures of UNRWA and the Palestinian Authority, UNRWA-PA Explanatory Note of 2011, Al-Malki—Grandi, para 7(a) (on file with the author) (‘ “Legal process” as such term is used in this Note includes summons, mandate, subpoena, warrant or other written demand issued by a court.’). 151 UN Secretariat Study 1967 (n 133), at 224 (‘These words have been broadly interpreted to include every form of legal process before national authorities, whether judicial, administrative or executive functions according to national law.’); UNRWA Headquarters Department of Legal Affairs, HQ Local Instruction No. 1 of 2009, Revision 1, Privileges and immunities and related responsibilities of the Agency and its staff members, reissue of 17 October 2011, para 6 (on file with the author) (‘The Agency is immune from every form of legal process before national authorities whether judicial, administrative or executive functions exercised under national law.’). 152 See eg Basem Husein Rasheed Saleh v UNDP, Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2008/220, Judicial Authority, 6 April 2009 (on file with the author) (referring to Art. II Section 2 General Convention, the court held that this phrase ‘ . . . had been interpreted in that it includes all forms of legal procedures whether a specified judicial bureau practiced them or not, therefore, the immunity includes any form of procedures before the National Authorities whether they were judicial, administrative or executive . . . ’.); Mahalwas v United Nations Truce Supervision Organization and Attorney General (intervening), Jerusalem District Court, Appeal Decision, PLA 3093/07, ILDC 1070 (IL 2007), 15 August 2007, para 11 (‘ . . . the United Nations is immune against any “legal action”, including execution of judgment. The State of Israel is a party to the Convention and is bound to act in accordance with the provisions of it and to respect the status of the United Nations, and therefore, it is not possible to institute execution proceedings against the United Nations in the State of Israel.’).

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arguments in favour of a broader reading of ‘every form of legal process’ in Art. II Section 2 General Convention.153 A systematic approach to this provision favours such a broad interpretation: The provision’s second sentence clarifies that an unspecified waiver does not extend to execution measures (see infra MN 104ff ). This distinction presupposes that a waiver could, in principle, cover both jurisdictional and enforcement immunity. 70 This reading is also confirmed by the fact that the immunity from ‘every form of legal process’ mentioned in Art. II Section 2 General Convention first sentence relates to both the UN and its property and assets. Since property and assets normally do not have their own legal personality, but are objects owned by the organization (argumento ‘its’ property and assets) they cannot be defendants in adjudicatory proceedings (see supra MN 61). However, property and assets are the typical ‘objects’ of enforcement action against the property owner.154 71 Additionally, the provision’s drafting history, indicating that the term ‘judicial process’ was deliberately replaced by the term ‘legal process’ in order to convey a broader meaning (see supra MN 67), supports this view.

b) Does ‘Immunity from Every Form of Legal Process’ Mean Absolute Immunity? 72 The wording ‘immunity from every form of legal process’ suggests that the UN cannot be sued in any situation, i.e. that it should enjoy absolute immunity. In fact, most courts have interpreted Art. II Section 2 General Convention in this sense and dismissed actions against the UN. 73 For instance, in Boimah v United Nations General Assembly,155 a US federal district court held that ‘[u]nder the Convention the United Nation’s immunity is absolute, subject only to the organization’s express waiver thereof in particular cases’.156 In De Luca v United Nations Organization, et al,157 another US federal district court relied on the General Convention to find that the UN enjoyed immunity from suit. Both cases were relied upon by the first instance court in Brzak v United Nations et al, (see infra MN 80)158 to

153

See UN Office of Legal Affairs, Note verbale to the Permanent Representative of [Member State] to the United Nations, ‘Illegal seizure of UNICEF property to satisfy court order—Immunity of the United Nations from civil suit—Arbitration—Article VIII, section 29(a), of the Convention on the Privileges and Immunities of the United Nations (2 February 2000)’, (2000) UNJYB 346, 347 (‘ . . . the immunity of UNICEF from every form of legal process, including the civil suit in question and all orders issued therein, including orders of execution of judgement.’). 154 See also the similar issue with regard to Art. I of the 2004 UN Convention on State Immunity (‘The present Convention applies to the immunity of a State and its property from the jurisdiction and of the courts of another State’) discussed by R O’Keefe and C J Tams, ‘Art. 1’, in R O’Keefe and C J Tams (n 9), at 36f. See also G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention, MN 30. 155 Boimah v United Nations General Assembly, 664 F. Supp. 69 (E.D.N.Y. 1987). 156 ibid. at 71. 157 De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al, U.S. District Court S.D.N.Y., 10 January 1994, 841 F. Supp. 531 (S.D.N.Y. 1994), aff ’d 41 F.3d 1502 (2d Cir 1994), writ of certiorari denied, 514 US 1051 (1995). The case against the individual UN Officials was dismissed because of their functional immunity. See R Bandyopadhyay and T Iwata, Commentary on Art. V Section 18(a) General Convention, MN 45, for further reference. 158 Cynthia Brzak and Nasr Ishak v United Nations, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), 597 F.3d 107 (2d Cir. 2010). The complaint against the UN Officials was dismissed on functional immunity grounds. See R Bandyopadhyay and T Iwata, Commentary on Art. V Section 18(a) General Convention, MN 46ff. REINISCH

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affirm the UN’s absolute immunity.159 The 2nd Circuit Court affirmed the UN’s absolute immunity from employment suits both in Brzak160 and Van Aggelen v United Nations.161 Similarly, in Lempert v Rice, United Nations, UNDP,162 a mixed contract and tort case 74 by an expert who was intended to work for UNDP, the D.C. district court held that it lacked subject-matter jurisdiction over the UN and UNDP as a subsidiary organ of the General Assembly because of the General Convention’s grant of absolute immunity.163 The same outcome was reached by a New York State court in Hunter v United Nations164 and by a Californian district court in a defamation suit in Corrinet v United Nations.165 In Nicol v United Nations Mission in Liberia,166 another federal district court dismissed a tort action against the UN and one of its peacekeeping missions.167 In an earlier case against the UN, requesting compensation for unauthorized and 75 unlawful possession of real property in Somalia during the UN’s peacekeeping activities in 1992, Askir v United Nations,168 a US district court was less unequivocal. Though the court dismissed the action, holding that ‘under the United Nations [General] Convention the United Nations’ immunity is absolute, subject only to the Organization’s express waiver of immunity’, it went on to state that it considered it ‘unnecessary to decide whether the restrictive immunity doctrine of the FSIA applies to the United Nations through the IOIA’.169 In the Court’s view ‘even if the immunity available to the United Nations and its officials is only restrictive immunity, the immunity still applies because

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Brzak v United Nations, 551 F. Supp. 2d 313, 318 (S.D.N.Y. 2008) (‘Under the General Convention, the United Nations is cloaked with absolute immunity “from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” General Convention art. II, Section 2. See also IOIA Section 288a(b); 11 Fed.Reg. 1809. Accordingly, where, as here, the United Nations has not waived its immunity, the General Convention mandates dismissal of Plaintiffs’ claims against the United Nations for lack of subject matter jurisdiction. See De Luca v United Nations Org., 841 F. Supp. 531, 533 (S.D.N.Y.1994), aff ’d, 41 F.3d 1502 (2d Cir.1994); Boimah v United Nations Gen. Assembly, 664 F. Supp. 69, 71 (E.D.N. Y.1987). All claims against the United Nations are therefore dismissed.’). 160 Brzak v United Nations, 597 F.3d 107, 114 (2d Cir. 2010) (‘As the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless “it has expressly waived its immunity.” Id. art. II, § 2.’). 161 Van Aggelen v United Nations, 2009 WL 414175 (2d Cir. 20 February 2009) (‘The United Nations enjoys absolute immunity under the U.N. Charter, the Convention on the Privileges and Immunities of the United Nations (“General Convention”), and the International Organizations Immunities Act (“IOIA”).’). 162 David H. Lempert v Susan Rice, U. S. Ambassador to the United Nations, United Nations, United Nations Development Programme, Civ. A. No. 12-01518 (CKK), 2013 U.S. Dist. LEXIS 101525 (D.C. 19 July 2013). 163 ibid. (‘ . . . under the plain language of the General Convention, the UN is immune from all legal process, including suit, and the Court therefore lacks subject matter jurisdiction over Plaintiff ’s claims against it’.). 164 Hunter v United Nations, UNICEF and ors, Judicial Review of Administrative Order, 800 N.Y.S.2d 347 (Sup. Ct. N.Y. County 2004), ILDC 693 (US 2004), 15 November 2004, Supreme Court [N.Y. Sup.] para 20 (‘Under the Convention the United Nations’ immunity is absolute. . . . ’). 165 Mark Steven Corrinet v United Nations, Hon. Boutros Boutros-Ghali, Gillian Sorensen and Ron Ginns, Judgement No. C-95-0426 SAW, Memorandum and Order of 10 September 1996 (N.D. Cal.), (1996) UNJYB 530, 531 (‘The United Nations has absolute immunity “from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” United Nations Convention art. II, S 2.’). 166 Nicol v United Nations Mission in Liberia, Civil Action No. 09-1800 (E.D. Pa. July 30, 2009). 167 ibid. at 3 (referring to the General Convention, the IOIA, and the UN Charter, the court found: ‘Plaintiff ’s claims against Defendant United Nations are barred by absolute immunity’). 168 Adbi Hosh Askir v United Nations, Hon. Boutros Boutros-Ghali, Joseph E. Connor, Brown & Root Services Corp. and ‘Doe’ Corporations, 933 F. Supp. 368 (S.D.N.Y. 1996). 169 ibid. at 371. See also MN 27. REINISCH

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the nature of the acts complained of by the plaintiff are the exercise of governmental functional rather than private commercial activity.’170 76 In one of the older domestic court cases involving the UN, Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères),171 a Brussels court accepted the UN’s plea of immunity from suit based on the absolute immunity clause of the General Convention. It held that the UN was competent to appear in legal proceedings in Belgium as a result of its legal personality according to Art. 104 UN Charter, but that as a consequence of the general and absolute wording of the immunity provision contained in the General Convention the organization could not be sued before Belgian courts without a waiver.172 77 The Dutch Supreme Court in the well-known Srebrenica case173 also relied on the UN’s immunity from legal process under the UN Charter and the 1946 General Convention.174 It specifically found that ‘Article II, § 2 of the Convention implements inter alia article 105, paragraph 3 of the UN Charter.’175 It then went on to state that . . . the only possible interpretation of the immunity defined in article II, § 2 is that the UN is entitled to the most far-reaching immunity, in the sense that the UN cannot be summoned to appear before any domestic court in the countries that are party to the Convention.176

78

It then rejected the possibility that Art. 6 ECHR might limit such unfettered immunity because in its view, Waite and Kennedy (see supra MN 33ff ) did not apply to the UN’s peace and security activities.177 Thus, it concluded with respect to the UN’s immunity that ‘[t]hat immunity is absolute.’178 79 In the final part of its judgment, the Dutch Supreme Court also rejected the argument that the UN’s immunity from legal process should be disregarded because the claim

170 ibid. at 372 (holding that ‘[a] military operation, even one directed at ensuring the delivery of humanitarian relief, is not an endeavor commonly associated with private citizens—indeed, military operations are a distinctive province of sovereigns and governments’.). 171 Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Tribunal Civil de Bruxelles, 11 May 1966, Journal des Tribunaux, 10 December 1966, No. 4553, 121; Pasicrisie Belge (1966), III, 103; (1966) UNJYB 283; 45 ILR (1972), 446–55; case note by J Salmon, De quelques problèmes posés aux tribunaux belges, 713; Cour d’appel de Bruxelles, 15 September 1969, Pasicrisie Belge (1969), 247; (1971) 25 Rev. crit. de jurisprudence belge 449; (1969) UNJYB 236; case note by P De Visscher, De l’immunité de juridiction de l’Organisation des Nations Unies (1971) 25 Rev. crit. de jurisprudence belge, 456. 172 Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Tribunal Civil de Bruxelles, 11 May 1966, 45 ILR (1972) 446, at 451 (‘In effect, under these provisions [Art. 105 UN Charter and Art. II Section 2 General Convention] the U.N. enjoys immunity from jurisdiction, except in so far as it has expressly waived it in a particular case. This provision is both general and absolute.’). 173 Stichting Mothers of Srebrenica and ors v Netherlands and United Nations (n 137). 174 ibid. para 4.2 (‘The basis for the UN’s immunity (to be distinguished from the immunity granted to its officials and to experts performing missions for the UN) is article 105 of the UN Charter and article II, § 2 of the Convention.’). 175 ibid. para 4.1.1. 176 ibid. 177 ibid. para 4.3.3 (‘It should be noted here that paragraph 67 of the judgment refers to “international organisations” without any qualification but that—in the absence of any consideration concerning the relationship between article 6 ECHR on the one hand and articles 103 and 105 of the UN Charter plus article II, § 2 of the Convention on the other—there are no grounds for assuming that the ECtHR’s reference to “international organisations” also included the UN, in any event not in relation to the UN’s activities in the context of Chapter VII of the Charter (Action with respect to threats to the peace, breaches of the peace, and acts of aggression).’). 178 ibid. para 4.3.6.

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concerned ius cogens violations. Relying on the majority view of the ECtHR’s judgment in Al Adsani179 and the ICJ’s Jurisdictional Immunities case,180 the Supreme Court concluded that [a]lthough UN immunity should be distinguished from State immunity, the difference is not such as to justify ruling on the relationship between the former and the right of access to the courts in a way that differs from the ICJ’s decision on the relationship between State immunity and the right of access to the courts. The UN is entitled to immunity regardless of the extreme seriousness of the accusations on which the Association et al. base their claims.181

The Waite and Kennedy argument (see supra MN 33ff ) to limit the scope of the UN’s 80 otherwise unlimited immunity from legal process under the General Convention also did not fare well before US federal courts in a case brought against high-ranking UN officials and the organization itself. In Brzak v United Nations et al,182 the plaintiff sought damages for alleged sexual harassment by the former United Nations High Commissioner for Refugees (UNHCR) and its subsequent cover-up. At the appellate stage, plaintiffs tried to challenge the UN’s absolute immunity from suit, arguing that such immunity was contrary to constitutional rights, in particular their ‘substantive due process right to access the courts’. The 2nd Circuit Court gave short shrift to these arguments and—reminiscent of the old position of the European Commission of Human Rights in the 1980s183— merely remarked that pre-existing immunities were not touched by the Constitution.184 Thus, any potential substantive conflicts were not even addressed. Rather, the Court reaffirmed that Art. II Section 2 General Convention means ‘absolute immunity’.185 Another US court in Bisson v United Nations186 ‘avoided’ the issue by holding that any rights under the ICCPR were not directly applicable.187 Similarly, an Israeli labour court merely noted that 81 the Courts enforced the absolute immunity of the United Nations organization despite the violation of the right to legal recourse that it entails, since against the right of legal recourse stands

179 Al-Adsani v United Kingdom, App no 35763/97; IHRL 2981 (ECHR 2001), 21 November 2001, para 61 (‘Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.’). 180 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (n 17). 181 Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012), para 4.3.14. 182 Cynthia Brzak and Nasr Ishak v United Nations, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), 597 F.3d 107 (2d Cir. 2010). 183 Ary Spaans v The Netherlands, ECommHR, Application No. 12516/86, 12 December 1988 (n 70). 184 Brzak v United Nations, 597 F.3d 107, 114 (2d Cir. 2010) (‘The short-and conclusive-answer is that legislatively and judicially crafted immunities of one sort or another have existed since well before the framing of the Constitution, have been extended and modified over time, and are firmly embedded in American law. . . . If appellants’ constitutional argument were correct, judicial immunity, prosecutorial immunity, and legislative immunity, for example, could not exist. Suffice it to say, they offer no principled arguments as to why the continuing existence of immunities violates the Constitution.’). 185 ibid. (‘As the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless “it has expressly waived its immunity.” Id. art. II, § 2.’). 186 Bisson v United Nations, World Food Program and ors (n 126). 187 ibid. para. 25 (‘When the Senate ratified the ICCPR in 1992, it declared that “Articles 1 through 27 of the Covenant are not self-executing.” . . . Therefore, even if Bisson has rights under the ICCPR that are implicated here, this Court cannot enforce them.’).

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the public interest of adherence to international obligations and defense of the State’s foreign relations.188

The absolute immunity of the UN is also recognized in a line of Israeli cases concerning employment disputes with UNDP189 and UNRWA.190 82 The view that ‘immunity from every form of legal process’ means absolute immunity is also widely adhered to by other courts191 and seems to represent the dominant opinion.192

c) Is There a Need to Invoke ‘Immunity from Every Form of Legal Process’? 83 In general, persons enjoying immunity from legal process are expected to invoke such immunity; otherwise, in particular, if they respond to the merits of a claim they may be considered to have implicitly waived any immunity they may enjoy.193 But any special appearance in domestic court proceedings in order to claim immunity will not be viewed as a voluntary submission to local jurisdiction.194 84 The formulation of Art. II Section 2 General Convention that the UN ‘shall enjoy’ immunity from every form of legal process suggests, however, that its immunity is automatically enjoyed without the need to specifically invoke it. 85 In the practice of the UN, immunity is rarely specifically invoked, though in early UN history the organization regularly filed amicus curiae briefs to this end.195 Rather, the UN normally contacts the foreign ministry of the forum State, requesting it to inform 188 Yacoub Ayoub v UNRWA, Regional Labor Court of Jerusalem, Case 24931-12-11, 24 January 2013, para 7 (on file with the author). See the similar reasoning in Dajani Pal Tourist & Travel Agency v UNDP, Magistrates Court in Jerusalem, Civil Case No. 32295-10-11, 17 June 2013, para 12 (on file with the author). 189 See n 128. 190 See n 129. 191 See eg Al-Dar Palestinian Company for Construction and Reconstruction/Dar Co. Ltd v United Nations Development Program, Palestinian People Aid Program (UNDP/PAPP), Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2009/170, Judicial Authority, 24 June 2009 (on file with the author) (referring to Art. II Section 2, the court concluded that ‘the defendant (the United Nations Development Program) enjoys absolute legal immunity’.); Yacoub Ayoub v UNRWA, Regional Labor Court of Jerusalem, Case 24931-12-11, 24 January 2013, paras 6 and 7 (on file with the author). 192 A Ziegler, ‘Article 105’, in B Simma (n 116), at 2166, MN 18. 193 Art. 8 (Effect of participation in a proceeding before a court) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12) (‘1. A State cannot invoke immunity from jurisdiction in a proceeding before a court of another State if it has: (a) itself instituted the proceeding; or (b) intervened in the proceeding or taken any other step relating to the merits. However, if the State satisfies the court that it could not have acquired knowledge of facts on which a claim to immunity can be based until after it took such a step, it can claim immunity based on those facts, provided it does so at the earliest possible moment.’) See also R O’Keefe and C J Tams (n 9), at 131. See also Firma Baumeister Ing Richard L v O (n 42), para 12 (‘[W]ith regard to the principle of good faith, which also applies under international law, immunity can also be waived by implicit behavior. Purely passive behavior, however, (such as the receipt of the claim or of a summons, non-appearance at a court hearing) cannot constitute an implicit waiver of immunity. Actions implying a waiver of immunity can be performed by the immune legal entity itself or by one of the latter’s authorized representatives.’). 194 C Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R Wolfrum (n 21), at 10, para 8 (‘Where an international organization files a response to suit, or makes an appearance solely for the purposes of asserting its immunity, it will not be deemed to have submitted to the jurisdiction.’). See also the parallel provision in Art. 3(2) European Convention on State Immunity (n 11) (‘A Contracting State is not deemed to have waived immunity if it appears before a court of another Contracting State in order to assert immunity.’); Art. 8(2)(a) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12) (‘A State shall not be considered to have consented to the exercise of jurisdiction by a court of another State if it intervenes in a proceeding or takes any other step for the sole purpose of: invoking immunity. . . . ’). 195 UN Secretariat Study 1967 (n 133), at 223.

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the court, where proceedings have been instituted against the UN, that the UN enjoys immunity and that as a result litigation should be terminated.196 This course of action is often followed in practice where courts do not grant immunity ex officio.197 The broadly shared view is that national courts are under a general duty to accord 86 jurisdictional immunity to the UN ex officio198 or at least to seriously address suggestions of immunity made on behalf of the UN by the UN Secretary-General.199 In the UN’s 196 See eg Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Netherlands Supreme Court, Final appeal judgment, 13 April 2012, LJN: BW1999; ILDC 1760 (NL 2012), para 3.2.2 (‘The State forwarded to the district court a copy of a letter of 17 August 2007 from the UN to the Dutch Permanent Representative to the UN, in which the UN drew attention to its immunity from jurisdiction and stated that it would not waive this immunity. The Public Prosecution Service moved accordingly, and the district court granted leave to proceed against the UN in default of appearance and subsequently declared itself not competent to hear the action in so far as it was directed against the UN.’); see Curran v City of New York et al, Supreme Court, Special Term, Queens County, 29 December 1947, 77 N.Y.S.2d 206, 209 (Sup.Ct. 1947), where a lawsuit against the organization and its Secretary-General was dismissed for lack of jurisdiction upholding the ‘suggestion of immunity presented by the Department of State’; see also David H. Lempert v Susan Rice, U. S. Ambassador to the United Nations, United Nations, United Nations Development Programme, Civ. A. No. 12-01518 (CKK), 2013 U.S. Dist. LEXIS 101525 (D.C. 19 July 2013) (‘In this case, the UN has not expressly waived its immunity. To the contrary, it has affirmatively requested that the United States take steps to protect its privileges and immunities in this case. See Gov’t Stmt. of Interest, Ex. A (Feb. 26, 2013 Letter from Patricia O’Brien, Under-Secretary-General for Legal Affairs, to Rice) (“[W]e wish to advise that the United Nations expressly maintains its privileges and immunities” with respect to Plaintiff ’s lawsuit, and that “we respectfully request that the Government of the United States to take appropriate steps to ensure that the privileges and immunities of the United Nations are maintained in respect of this legal action.”).’). 197 See UN Office of Legal Affairs, Note verbale to a Permanent Representative of a Member State to the United Nations regarding the freezing of bank accounts of the World Food Programme, 16 July 2004, (2004) UNJYB 326, 327 (‘The Legal Counsel kindly requests that the Ministry for Foreign Affairs take the necessary steps to inform the competent judicial authorities, of WFP’s immunity from every form of legal process and from execution, including the civil suit in question in accordance with the obligations of the Government of [State]. In particular, the Legal Counsel trusts that the case will be dismissed with prejudice in all its aspects, including the execution order, and expects that all embargoed funds will be returned as soon as possible.’); UN Office of Legal Affairs, Aide-Memoire, Court cases pending against UNDP in xxx, 1 May 2008 (on file with the author) (‘In addition, the Legal Counsel reiterates his request to the Government of xxx to take all necessary steps to ensure that the United Nations’ immunity from legal process regarding the court proceedings in question is respected, in accordance with the obligations of xxx under . . . the General Convention and the Charter of the United Nations.’); see also Basem Husein Rasheed Saleh v UNDP, Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2008/220, Judicial Authority, 6 April 2009 (on file with the author) (‘Mr. Peter Tacksou Jenson who works as the assistant secretary general for legal affairs for the United Nations Development Program, and the letter had been written in the English language and translated to the Arabic language and signed by the said Peter Jenson, requesting in it that according to the UN’s policy they shall not appear before Legal Courts in member countries. At the end of his letter he also requested of the competent Palestinian Authorities to take all necessary procedures in order to ensure complete respect for the immunity.’). See also Explanatory Note, Key privileges and immunities of UNRWA and related responsibilities and standard operating procedures of UNRWA and the Palestinian Authority, UNRWA-PA Explanatory Note of 2011, Al-Malki—Grandi, para 13 (on file with the author) (‘Should UNRWA determine that privileges and immunities apply, UNRWA will communicate the determination and explain its basis. Unless and until the Secretary-General waives applicable privileges and immunities, the Ministry of Foreign Affairs will assert these privileges and immunities through appropriate communications including to the concerned courts.’). See also A Miller (n 21), at 41. 198 M Möldner, ‘International Organizations or Institutions, Privileges and Immunities’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law Vol. VI (OUP 2012) 47, para 16; C Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R Wolfrum (n 21), at 10, para 8. See also Investment & Finance Company of 11 January 1984 Limited (Investerings- & Finansieringsselskabet af 11/1 1984 ApS) v UNICEF, First Instance, Case No U 2000 478 , ILDC 64 (DK 1999), 26 August 1999, High Court for Eastern Denmark, where the court applied UNICEF’s immunity ex officio. 199 See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, (1999) ICJ Rep 62, at 87, para 61, with regard to the immunity of a UN agent

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view, the contracting parties of the General Convention are obliged to inform their courts of suggestions of immunity.200 Where they do not live up to their obligations the UN may itself inform the court of its immunity.201

d) The Impact of Immunity from ‘Every Form of Legal Process’ on Litigation Where the UN is Not a Defendant 87 Although immunity from legal process primarily exempts defendants from the jurisdiction of national courts, it also implies that persons enjoying such immunity are not bound to comply with court orders or measures in disputes between third parties. In practice, this most frequently relates to providing evidence and to garnishment/sequestration attempts.202 Duty to provide evidence 88 The broad immunity from ‘every form of legal process’, coupled with the inviolability of its archives and documents pursuant to Art. II Section 4 General Convention,203 also implies that the UN is exempted from a duty to produce evidence that may be in its possession.204 89 This view that the UN’s broad immunity from ‘every form of legal process’ provides an exemption from any duty to provide evidence is also adhered to by national courts,205 (‘When national courts are seised of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information.’). 200 Office of Legal Affairs, Note verbale to the Permanent Representative of [Member State] to the United Nations, ‘Illegal seizure of UNICEF property to satisfy court order—Immunity of the United Nations from civil suit—Arbitration—Article VIII, section 29(a), of the Convention on the Privileges and Immunities of the United Nations (2 February 2000)’, (2000) UNJYB 346, 347 (‘ . . . the Government of [Member State] has a legal obligation to advise the competent judicial authorities, including the civil court concerned, of the immunity of UNICEF from every form of legal process,. . . . ’); UN Office of Legal Affairs, Note verbale to the Permanent Representative of a Member State to the United Nations regarding a civil suit instituted in the Conciliation and Arbitration Board, 23 May 2008, (2008) UNJYB 406, 407 (‘In accordance with article II, section 2, and article V, section 18 (a) of the Convention, the Legal Counsel hereby returns the notification of the lawsuit instituted by [Name A]. The Legal Counsel is confident that the competent [State] authorities will ensure full respect of its privileges and immunities in accordance with the obligations of [State] under international law.’). 201 UNRWA Headquarters Department of Legal Affairs, HQ Local Instruction No. 1 of 2009, Revision 1, Privileges and immunities and related responsibilities of the Agency and its staff members, reissue of 17 October 2011, para 9 (on file with the author) (‘Where a government is unwilling to intervene to assert the Agency's privileges and immunities the Agency should provide to the court or other body a letter asserting the Agency's privileges and immunities. The letter should expressly state that the letter is sent on the basis that it does not constitute a waiver of the Agency’s immunity in the matter. . . . ’). 202 See also A Ziegler, ‘Article 105’, in B Simma (n 116), at 2166, MN 20. 203 See G L Burci, Commentary on Art. II Section 4 General Convention, MN 24. 204 UNRWA Headquarters Department of Legal Affairs, HQ Local Instruction No. 1 of 2009, Revision 1, Privileges and immunities and related responsibilities of the Agency and its staff members, reissue of 2011 17 October 2011, para 6 (on file with the author) (‘ “Legal process” includes . . . summonses or orders asking the Agency to provide information.’). 205 See eg Basem Husein Rasheed Saleh v UNDP, Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2008/220, Judicial Authority, 6 April 2009 (on file with the author) (referring to Art. II Section 2 the court held that ‘ . . . the immunity includes any form of procedures . . . regardless of whether the organization itself is the

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which have recognized that the resulting exemption is equally supported by the inviolability of UN archives and documents.206 Nevertheless, the UN has adopted a practice of voluntary co-operation with domestic 90 law enforcement agencies and courts where possible.207 Stressing that because of its immunity from legal process and its inviolability it is not obliged to comply with document requests, the UN has repeatedly granted such requests ‘to facilitate the proper administration of justice’208 on a ‘strictly voluntary basis’.209 Attachment of funds Domestic courts have interpreted absolute immunity also to prevent the service of 91 garnishee orders upon the UN in salary or pension sequestration proceedings involving the organization’s officials.210 In the US, Shamsee v Shamsee211 is the leading case in which an attempted sequestration of a former UN employee’s pension benefits was rejected because of the UN’s immunity from legal process. This view has also been expressed by the defendant or whether it had been requested of it to submit information or perform some additional role’.). See also the UN Secretariat Study 1967 (n 133), at 224 (‘The Organization’s immunity from “every form of legal process” has also been regarded as extending irrespective of whether the Organization was named as defendant or was asked to provide information or to perform some ancillary role.’). 206 Mary O’Brien v Ireland, The Attorney General and the Minister for Defence, Ireland, High Court, 26 August 1994, [1995] 1 ILRM 22. (In a negligence action of the wife of an Irish soldier killed while serving in the UN peacekeeping force in Lebanon, the court confirmed the UN’s exemption from a duty to produce certain relevant documents as a matter of Irish law which generally endorsed the prerogatives contained in the General Convention. In the court’s view the Convention’s inviolability provisions regarding the archives and documents of the UN precluded an order to produce evidence.) 207 See G L Burci, Commentary on Art. II Section 4 General Convention, MN 26ff, for further reference. 208 Art. V Section 21 General Convention. See R Bandyopadhyay and T Iwata, Commentary on Art. V Section 21 General Convention for further reference. 209 See eg Assistant Secretary-General for Legal Affairs to Minister Counselor, xxx Mission to the United Nations, 5 September 2007 (on file with the author) (‘ . . . in order to facilitate the proper administration of justice, the United Nations is willing, on a strictly voluntary basis, to provide access to [workspace and items requested]’.); UNRWA Headquarters Department of Legal Affairs, HQ Local Instruction No. 1 of 2009, Revision 1, Privileges and immunities and related responsibilities of the Agency and its staff members, reissue of 17 October 2011, para 7 (on file with the author) (‘[T]he Agency should in response to summonses offer to provide information other than by court appearances, eg offer to consider requests to provide written information in relation to specific questions on a voluntary basis.’). 210 Means v Means, 60 Misc. 2d 538 (N.Y. Fam. Ct. 1969) (attempted garnishment of employees’ wages for the support of estranged wives and their children brought against the UN was dismissed for immunity reasons); Menon v Weil, Civil Court of the City of N.Y., New York County, 26 March 1971; 320 N.Y.S.2d 405, 66 Misc. 2d 114 (N.Y. City Civ. Ct. 1971), the estranged wife of a UN fieldworker stationed in South Korea brought a number of actions for support and maintenance against various UN officials as ‘agents’ of the absent Mr Menon. Default judgments and a garnishment order of the personal bank account of a UN undersecretary were vacated as a result of the State Department’s ‘suggestion’ of immunity. The court thought that even without this ‘executive intervention’ the General Convention as a treaty forming the ‘supreme Law of the Land’ requiring immunity of UN officials for their ‘official acts’ would mandate dismissal of plaintiff ’s actions. 320 N.Y.S.2d 405, at 407 (N.Y. City Civ. Ct. 1971); Anonymous v Decision of the Provincial Revenue Authority for Vienna, Austria, Administrative Court, Case No. 81/13/0031, 28 October 1981 (on file with the author) (holding that an injunction ordering UNRWA not to make payments to the plaintiff violated, inter alia, Art. II Section 2 General Convention). 211 Shamsee v Shamsee, New York Supreme Court, Appellate Division, 2nd Dept. 19 May 1980; 74 A.D.2d 357, 428 N.Y.S.2d 33 (2d Dep’t 1980), (1980) UNJYB 222, affirmed, 53 N.Y.2d 739, 439 N.Y.S.2d 356, 421 N.E.2d 848 (1981), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981) (the appellate court quashed sequestration order on UN Joint Staff Pension Fund, specifically recognizing the Fund and its Secretary immune from the sequestration under ‘under the applicable Federal law’, i.e. under the General Convention as ‘the supreme Law of the Land’ and under the IOIA).

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UN Office of Legal Affairs212 and it found application in cases involving IAEA officials.213 92 The resulting immunity protection overlaps with the immunity of the UN’s assets pursuant to Art. II Section 3 General Convention.214 93 In order to avoid a situation whereby UN officials may use the organization’s immunity from garnishment proceedings in order to evade meeting their private financial obligations, a number of informal steps, possibly leading to a voluntary deduction from their salary, are sometimes envisaged.215 ‘ . . . except insofar as in any particular case it has expressly waived its immunity.’ 94 Art. II Section 2 General Convention confirms the general principle of immunity law that the entity entitled to immunity also has the option to waive such immunity. Domestic courts often stress the need of a waiver in order to be entitled to exercise jurisdiction over the UN or its organs.216 Like most privileges and immunities instruments the

212 See the UN Secretariat Study 1967 (n 133), at 224; (1983) UNJYB 213ff, stressing that ‘[s]ervice of a garnishment or attachment order upon the Organization is a form of legal process from which the Organization is immune . . . ’; and (1968) UNJYB 216, maintaining that a court order to make UNIDO directly pay debts of one of its employees in execution of a judgment against such employee would violate UNIDO’s immunity from legal process. See also UNRWA Headquarters Department of Legal Affairs, HQ Local Instruction No. 1 of 2009, Revision 1, Privileges and immunities and related responsibilities of the Agency and its staff members, reissue of 17 October 2011, para 6 (on file with the author) (‘ “Legal process” includes . . . orders asking the Agency to perform some ancillary role, for example, to garnishee salary payments to a staff member who has incurred a private debt;’). 213 R. Peter Panuschka v Peter Schaufler, Austria, Commercial Court of Vienna, 29 November 1965, 12 Cg 802/65-2; (1965) UNJYB 246 (an attempted garnishee order to be served on the IAEA was qualified as service of legal process which—according to the applicable headquarters agreement—could not take place within the headquarters seat of the organization. It further reasoned that the issuance of such an order would be prevented by the organization’s immunity from legal process. The Commercial Court thought that although this last provision related first and foremost to measures of execution against the IAEA, its wording also covered measures of execution which were directed primarily against other persons but in which the IAEA was in some way involved). 214 See L Bartholomeusz, Commentary on Art. II Section 3 General Convention, MN 19ff. See also the UN Secretariat Study 1967 (n 133), at 224 (‘Although the specific inviolability of the Organization's financial assets is also a defence for the Organization, its immunity “from every form of legal process” in itself prevents the issue of a garnishee order and the incurring by the United Nations of any legal obligation to participate in the proceedings themselves or to abide by any judgement given.’). 215 See eg UNRWA Headquarters Department of Legal Affairs, HQ Local Instruction No. 1 of 2009, Revision 1, Privileges and immunities and related responsibilities of the Agency and its staff members, reissue of 17 October 2011, para 38 (on file with the author) (‘When an outside claimant communicates to the Agency that a staff member has failed to honour a private legal obligation, the Agency shall proceed as follows: a. The outside claimant shall be advised of the Agency’s immunity, that United Nations salaries are not subject to garnishment, and of its policy of requiring stall members to meet their private legal obligations; b. The staff member concerned shall be provided with a copy of the correspondence from and to the claimant, together with a copy of the claim or order, and shall be requested to take prompt action to resolve the matter and to advise the Human Resources Department or the local personnel office of the action taken. c. If no appropriate action has been taken within three months from the date of receipt by the staff member of the request made under the preceding subparagraph disciplinary action may be initiated. d. The Commissioner-General may consider authorizing a deduction from the salary or other emoluments of the staff member in accordance with Area Staff Rule 103.6 or International Staff Rule 103.17.’). See also A Miller (n 21), at 37. See also in regard to the Specialized Agencies G L Burci, Commentary on Art. III Section 4 Specialized Agencies Convention, MN 35. 216 See eg Al-Dar Palestinian Company for Construction and Reconstruction/Dar Co. Ltd v United Nations Development Program, Palestinian People Aid Program (UNDP/PAPP), Palestine, Ramallah’s Court of Appeals, Civil Appeal, No. 2009/170, Judicial Authority, 24 June 2009 (on file with the author) (‘ . . . we hereby find and as a general rule that the appellee organization cannot be sued before the courts of the host country, except with its approval or waiver of immunity’.).

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General Convention does not expressly specify which organ is competent to waive the UN’s immunity.217 It seems to be generally accepted that this power is given to the chief administrative officer of the UN,218 the Secretary-General,219 not to executive directors of semi-independent programs, or others.220 Nevertheless, some courts appear to have envisaged the possibility that other UN organs were also competent to waive the organization’s immunity.221 The importance of a waiver by the correct, competent organ was underlined in Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères)222 where the Belgian court rejected the plaintiff ’s contention that the Belgian Minister of Foreign Affairs had stated publicly in the Belgian Senate that the UN had waived its immunity and held that the Belgian minister ‘cannot bind the United Nations, nor its Secretary-General, through declarations he makes in the Belgian Legislative Chamber’.223 The wording ‘in any particular case’ suggests that the UN’s immunity can only be waived when a particular case is concerned, i.e. when proceedings have been instituted against the organization. This implies that advance waivers, for example, in a contract, are not possible.224 This result is also corroborated by the fact that the original draft wording of this provision expressly referred to waiver by ‘the terms of any contract’ (see supra MN 4). The deletion of this phrase in the final version of the Convention suggests that ‘it was not the intention of the Preparatory Commission or of the General Assembly, to extend the right of waiver in futuro (sic!) by the terms of a contract’.225 Given that

217 See, however, Art. 3 General Agreement on Privileges and Immunities of the Council of Europe (n 27) providing that the Committee of Ministers should expressly authorize waivers of immunity. See also Art. XV para 2 (Art. IV para 1 a) Annex I to the) Convention for the Establishment of a European Space Agency, 30 May 1975, 1297 UNTS 161, providing for the ESA Council to waive the agency’s immunity. 218 Art. 97 UN Charter. See also Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, (1954) ICJ Rep 47, 53 (‘The Secretary-General in his capacity as the chief administrative officer of the United Nations Organization, act[s] on behalf of that Organization as its representative.’); Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, (1999) ICJ Rep 62, at 87, para 60 (‘ . . . the Secretary-General, as the chief administrative officer of the Organization, has the primary responsibility to safeguard the interests of the Organization. . . . ’). 219 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 (‘This [the UN’s] immunity, however, can be waived by the Secretary-General in any particular case if it is in the interest of the Organization.’). 220 H G Schermers and N Blokker, International Institutional Law (4th edn, Martinus Nijhoff 2003) Section 1612(a), quoting (1969) UNJYB 224ff. According to an internal legal memorandum by the Office of Legal Affairs of the UN dating from 1948, a clarification of this competence in the General Convention—as in the case of waiver of UN officials’ immunities by the Secretary-General and not the officials themselves—was not deemed necessary since this authority fell within the agenda of the Secretary-General as chief administrative officer. Reprinted in part in the UN Secretariat Study 1967 (n 133), at 225. 221 Boimah v United Nations General Assembly, 664 F. Supp. 69, 72 (E.D.N.Y. 1987) (‘The court hesitates to dismiss the complaint because the remote possibility exists that the General Assembly, if it were aware of this suit, might choose to waive its immunity with respect to it.’). 222 Manderlier v Organisation des Nations Unies and État Belge (Ministre des Affaires Étrangères), Civil Tribunal of Brussels, 11 May 1966, (1966) UNJYB 283; 45 ILR (1972), 446–55. 223 45 ILR (1972), 446, at 452. 224 In the field of State immunity, this is, of course, a well-accepted form of advance waivers, see eg Art. 2(b) European Convention on State Immunity (n 11); Art. 7(1)(b) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12). 225 See UN Division of Immunities and Registration of Treaties, Waiver of Immunity—Actual and Implied, 20 December 1948 (on file with the author).

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anticipated waivers of immunity are quite common226 and are often found in contracts, this limitation is rather unusual227 and has given rise to doubts as to its effectiveness.228 99 Art. II Section 2 General Convention requires an ‘express’ waiver.229 Thus, it is unlikely that courts would accept any ‘implied’ or ‘implicit’ waivers of immunity on the part of the UN.230 US courts have therefore also refused to accept the implied waiver of immunity argument used in the context of international financial organizations to justify the exercise of jurisdiction231 also for the UN.232 100 In early UN practice, the UN Secretary-General has reportedly waived the UN’s immunity on a regular basis in order to allow legal proceedings concerning insured motor vehicle accidents to proceed.233 But taking out insurance alone has been held not to constitute an implied waiver of immunity by the UN.234

226 In the context of State immunity, forum selection clauses in contracts eg if limited to the courts of a specific State, are typically construed as a waiver of immunity before the courts of that State. They cannot, however, be regarded as expressing a general waiver of immunity before courts in other jurisdictions. See H Fox and P Webb, The Law of State Immunity (3rd edn, OUP 2013) 385. 227 See also UN Division of Immunities and Registration of Treaties, Waiver of Immunity—Actual and Implied, 20 December 1948 (on file with the author), recognizing that a non-party of the General Convention may thus disregard this limitation and accept contractual waivers of immunity. This was particularly relevant for the US which only acceded to the Convention in 1970. 228 See Legal Officer, General Legal Division, Lease of Premises by UNICEF in the xxx Free Port, 19 June 1962 (on file with the author), according to which a choice of (a national) forum clause‚ could not be permitted in a contract because ‘only the Secretary-General is authorized to waive United Nations immunities, and it is even doubtful whether the Secretary-General himself could by contract effectively agree to waive any U.N. immunity for the future’.); see also C Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R Wolfrum (n 21), at 10, para 9 (‘Whilst in the past there may have been authority to the effect that a waiver had to be in relation to particular proceedings, there is now practice to suggest that a waiver in advance, for example by means of a contractual provision submitting disputes arising thereunder to a national jurisdiction, will be given effect by a national court. . . . ’). 229 See also UN Office of Legal Affairs, Note verbale to the Permanent Representative of a Member State to the United Nations regarding a civil suit instituted in the Conciliation and Arbitration Board, 23 May 2008, (2008) UNJYB 406, 407 (‘Under article II, section 2 of the General Convention, waiver of immunity by the United Nations must be express. The United Nations, including UNDP and UNFPA, has not waived its privileges and immunities in this case.’). 230 Bisson v United Nations, World Food Program and ors (n 126), para 23 (‘ . . . express waiver may not be inferred from conduct’.). 231 According to Mendaro v World Bank, 717 F.2d 610, 613 (D.C. Cir. 1983), the World Bank has waived its immunity from suit brought by its debtors, creditors, bondholders, and those other potential plaintiffs as to whom the Bank would have subjected itself to suit in order to achieve its objectives. See E Okeke, Commentary on Annex VI (IBRD) Specialized Agencies Convention, MN 9 and MN 14. See also A Reinisch and J Wurm, ‘International Financial Institutions before National Courts’, in D Bradlow and D B Hunter (eds), International Financial Institutions and International Law (Kluwer Law International 2010) 103–35. 232 Bisson v United Nations, World Food Program and ors (n 126), para 23 (‘ . . . § 29(a) [General Convention] contains no language effecting an express waiver under any circumstances and that, even assuming arguendo that the UN failed to provide an adequate settlement mechanism, such failure did not constitute waiver because express waiver may not be inferred from conduct.’). 233 See a legal opinion of the UN Office of Legal Affairs quoted in the UN Secretariat Study 1967 (n 133), at 226 (‘As it is really not feasible to take out insurance without permitting the insurance carrier the right to defend any suits which might be brought against the United Nations, the Secretary-General clearly has the power to waive the immunity of the United Nations for the purpose of permitting such suits to be brought.’). 234 Nicol v United Nations Mission in Liberia, Civil Action No. 09-1800, at 5 (E.D. Pa. 30 July 2009) (‘ . . . the purchase of liability insurance does not establish that the United Nations expressly waived its absolute immunity.’).

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Even beyond insurance claims, it is asserted that the UN Secretary-General’s waiver 101 policy is ‘guided by a general sense of justice and equity’.235 Art. II Section 2 General Convention does not contain any wording with regard to 102 counterclaims. In State immunity law, it is generally recognized that the institution of legal proceedings exposes a State to counterclaims.236 The strict requirement of an express waiver which cannot be made in advance may 103 suggest that the UN’s immunity from legal process would not be lost by instituting proceedings and thus becoming exposed to counterclaims. However, part of UN practice suggests that the institution of legal proceedings by the UN can be regarded as a waiver of immunity exposing the organization to counterclaims.237 ‘It is, however, understood that no waiver of immunity shall extend to any measure of execution.’ This final sentence of Art. II Section 2 General Convention is not free from ambiguity. It 104 could be regarded merely as an ‘understanding’, explaining that ordinary waivers of immunity do not encompass a waiver of enforcement or execution measures.238 This limited view would accord with the general notion that every person entitled to immunity also has the right to waive it. It seems, however, that the UN Office of Legal Affairs is of the view that the UN 105 cannot waive its immunity from execution measures even if it intended to do so.239 Such a limitation on the organization’s power may be justified in the interest of the member States which will ultimately have to bear the financial consequences of any execution measure against the UN. However, more precise language in this regard would have been 235

United Nations Secretariat, Relations between States and international organizations (second part of the topic). 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—Topic: Status, privileges and immunities of international organizations, their officials, experts, etc.—Extract from the Yearbook of the International Law Commission 1985 Vol. II/Add.1 (UN-Doc. A/CN.4/L.383) 162 (‘In practice, the Secretary-General has determined in all cases whether or not the immunity of the Organization should be waived. In the instances where the Secretary-General judged it proper to waive the immunity of the United Nations from legal process, he was guided by a general sense of justice and equity.’). 236 See Art. 9 (Counterclaims) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12) (‘1. A State instituting a proceeding before a court of another State cannot invoke immunity from the jurisdiction of the court in respect of any counterclaim arising out of the same legal relationship or facts as the principal claim.’). See also Art. 1 European Convention on State Immunity (n 11). 237 Memorandum to the Deputy Director, Environmental Law and Institutions, Programme Activities Centre, United Nations Environment Programme, ‘Authority of the United Nations Environmental Programme to take direct legal action against private entities of states member of the United Nations’, 17 November 1995, (1995) UNJYB 411, 412, para 5 (‘Pursuant to the provisions of article II, section 2 of the Convention on the Privileges and Immunities of the United Nations, the Organization enjoys immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. By filing a lawsuit, the Organization, acting through UNEP, would in effect waive its immunity and therefore would no longer be immune from counter claims which could be filed by defendants.. . . . ’). 238 See the clarification in Art. 20 (Effect of consent to jurisdiction to measures of constraint) United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 (n 12) (‘Where consent to the measures of constraint is required under articles 18 and 19, consent to the exercise of jurisdiction under article 7 shall not imply consent to the taking of measures of constraint.’). 239 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 General Convention then established that no waiver of immunity can be extended to any measure of execution.’); Legal Counsel of the United Nations, 19 September 2008 (on file with the author), (‘Moreover, the United Nations enjoys an absolute immunity from “any measure of execution” to which no waiver can be extended under the General Convention. . . . ’). REINISCH

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preferable. It is unclear what consequences would stem from an attempted waiver, whether it would be regarded as an ineffective ultra vires act or merely as unlawful. 106 There seems to be no case law in point. Apparently, the UN does not waive its immunity from execution measures in practice.240 107 What is clear, however, is that even where the UN waived its immunity from legal process and ultimately faced a national court judgment against it, such waiver does not mean that it had already waived its immunity from enforcement measures. Thus, in effect the UN remains free to decide whether and how to comply with such court decisions.241

E. Conclusion 108 Art. II Section 2 has become one of the central provisions of the General Convention. Immunity from legal process has always been considered a crucial tool to guarantee the independent functioning of international organizations. While an outright exemption from the jurisdiction of national courts has become problematic, in particular, in situations where no alternative dispute settlement mechanisms have been made available, judicial practice tends to recognize the UN’s ‘immunity from every form of legal process’ as enshrined in Art. II Section 2 General Convention.

240 To the contrary, the UN usually insists on immunity from execution measures. See eg UN Office of Legal Affairs, Note verbale to a Permanent Representative of a Member State to the United Nations regarding the freezing of bank accounts of the World Food Programme, 16 July 2004, (2004) UNJYB 326, 327 (n 197). 241 UN Secretariat Study 1967 (n 133), at 226 (‘In the understanding of the Secretariat the words are to be interpreted in their plain meaning, namely, that even in the event that the Organization does waive its immunity in a particular case, no judgement given against the Organization can be enforced by court orders or by actions taken by the executive or other authorities and directed against the Organization itself, or its property and assets. In short, the manner of compliance with any decision remains within the discretion of the United Nations, even though the United Nations may have agreed to submit to the substantive provisions of national law as regards the issue in dispute.’).

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Immunity of Property, Funds, and Assets (Article III Section 4 Specialized Agencies Convention) Gian Luca Burci ARTICLE III PROPERTY, FUNDS, AND ASSETS SECTION 4. The specialized agencies, their property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunities. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

A. Introduction As in the case of the corresponding section from the General Convention,1 Art. III 1 Section 4 is the core provision of the Specialized Agencies Convention, setting out the immunity of Specialized Agencies from legal process in broad and absolute terms. Unlike the General Convention, however, the diversity of the Specialized Agencies and of their respective constitutive treaties, host agreements, and similar legal instruments compounds the difficulty in obtaining a coherent and uniform vision of their legal protection from the exercise of national jurisdiction. This commentary is complementary to other chapters in this volume and will try as far 2 as possible not to repeat the general considerations contained in the introduction as well as in the commentary on Art. II Section 2 General Convention—including the scope of immunities and recent trends towards limiting them with regard to access to justice concerns—which in principle are applicable also to the Specialized Agencies.2 It has proved difficult to obtain a representative sample of the practice of Specialized 3 Agencies and of the challenges faced by them. Moreover, the case law concerning the immunities of the Specialized Agencies directly or indirectly based on the Specialized Agencies Convention appears to be limited when compared to litigation against non-UN system organizations or in countries that are not parties to the Specialized Agencies Convention such as the US. Even in a host country to no less than six Specialized Agencies such as Switzerland, the published case law almost entirely concerns non-UN organizations such as the European Organization for Nuclear Research (CERN) and the Bank for International Settlements (BIS) or the Arab League.3 This commentary also excludes the practice of organizations other than Specialized Agencies as well as litigation not based directly or indirectly on the Specialized Agencies Convention, such as that against the International Civil Aviation Organization (ICAO) based on Canada’s 1991

1

See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention for further reference. ibid. MN 10ff. 3 See T Neumann and A Peters, ‘Switzerland’, in A Reinisch (ed), The Privileges and Immunities of International Organizations in Domestic Courts (OUP 2013) 241. 2

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Foreign Missions and International Organizations Act (FMIOA)4 as well as court cases in the US related to the World Bank or the IMF and based on the 1945 International Organizations Immunities Act (IOIA).5 As a consequence, the review of the available practice is somehow limited.6

B. Drafting History 4 The question of a convention on the privileges and immunities of Specialized Agencies was considered by the Preparatory Commission of the United Nations, and later by the General Assembly, from the perspective of co-ordination and unification of the principles underlying the international legal protection of the organizations of the UN system. The fundamental justification, both in the case of the General as well as the Specialized Agencies Convention, was to protect the unimpeded exercise of the functions of the UN and its Specialized Agencies, thus the immunities to be granted would have to be tailored to the specific needs and functions of each organization. 5 The elaboration of a system of privileges and immunities for the Specialized Agencies was based on the General Convention which provided parameters, within which the agencies would have enjoyed the privileges and immunities necessary for the fulfilment of their functions. UNGA Res 22 (1) D, adopted on 13 February 1946—the same day of the adoption of the General Convention—states in the relevant part that: . . . not all specialized agencies require all the privileges and immunities which may be needed by others, and that certain of these may, by reason of their particular functions, require privileges of a special nature which are not required by the United Nations itself. . . . The privileges and immunities of the United Nations should be regarded, as a general rule, as a maximum within which the various specialized agencies should enjoy such privileges and immunities as the appropriate fulfillment of their respective functions may require . . . 7

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The Sub-Committee of the Sixth Committee tasked with considering the approach to be followed with regard to the privileges and immunities of the Specialized Agencies, recommended the adoption of a single convention containing standard clauses applicable to all Specialized Agencies and providing ‘a complete statement of the privileges and immunities . . . apart from any special agreement concluded with the country in which their seat is established’.8 Individual annexes recommended to each agency for adoption would complement the standard clauses. Upon approval of this approach by the Sixth Committee, the Sub-Committee submitted on 15 November 1947 the text of a draft convention largely modelled on the General Convention, and nine annexes for the Specialized Agencies then in existence.9 The Sixth Committee adopted the report of the

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Foreign Missions and International Organizations Act, SC 1991 (FMIOA), c-41. Canada is a Party to the General Convention but not to the Specialized Agencies Convention, and the FMIOA uses the General Convention as a template to grant privileges and immunities to international organizations through orders. See P Saunders, ‘Canada’, in A Reinisch (n 3), at 73. 5 International Organizations Immunities Act (IOIA) 1945, 59 Stat. 669, 22 U.S.C.A. Sections 288ff. 6 It therefore relies to a large extent on the practice of WHO in view of the professional affiliation of the author of this commentary. 7 UNGA Res 22 D (I), 13 February 1946, UN-Doc. A/RES/22(I)D. 8 UN-Doc. A/C.6/148, 2. 9 UN-Doc. A/C.6/191. BURCI

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Sub-Committee with only a brief discussion and the Convention was finally adopted by the General Assembly on 21 November 1947.10 It is noteworthy, in this connection, that the Sub-Committee adopted verbatim the 7 language of Art. II Section 2 General Convention with regard to the jurisdictional immunities of the Specialized Agencies, and that the text was adopted in turn by the Sixth Committee and the General Assembly without any problem. The only deviation concerned Annex VI on the IBRD, since Art. VII of the Bank’s Articles of Agreement establishes a narrower regime of immunity from legal process.11 Notwithstanding the differences in functions and expected activities and besides the special case of the IBRD, therefore, it was generally accepted that all Specialized Agencies should enjoy the same complete protection from legal process as that enjoyed by the UN as one of their core immunities and as an essential element for the protection of the unimpeded exercise of their functions.

C. Background As noted in the Introduction and the Commentary on Art. II Section 2 General Conven- 8 tion,12 the privileges and immunities of international organizations are based on international agreements and national legislation rather than customary international law. As a consequence, the legal protection of Specialized Agencies may depend on the applicability of a multiplicity of legal sources: their constitutive instruments, the Specialized Agencies Convention, host agreements concluded with regard to the headquarters and offices of the agencies, bilateral agreements regulating their activities in member States—for example, technical co-operation or the holding of conferences—as well as national legislation. The applicability of any such source depends on a number of circumstances such as membership in the agency concerned of a particular State and participation in the Specialized Agencies Convention in its regard, as well as the monist or dualist approach of national legal systems and consequently the direct applicability of international agreements or the need for enabling legislation. The overall picture is therefore one of fragmentation, which requires a case-by-case approach to reconstruct the actual legal framework applicable to a Specialized Agency in a particular country and sometimes for particular transactions or functions. The relevance and applicability of the Specialized Agencies Convention, in general as 9 well as specifically with regard to Art. III Section 4, depends therefore on a number of factors such as the existence of more specific and/or subsequent legal instruments that prevail over the Convention, whether such instruments cross-refer to the Convention or contain identical or very similar provisions, and whether applicable national legislation incorporates the provisions of the Convention, deviates from them, or makes their application and the scope of protection dependent on specific executive acts of the government concerned. In other words, the substance of the provisions of the Specialized

10

UNGA Res 179 A to C (II) (21 November 1947) UN-Doc. A/RES/179(II)A–C. See E Okeke, Commentary on Annex VI (IBRD) Specialized Agencies Convention, MN 4ff. The same limited immunity regime is laid down for two other World Bank Group institutions, the International Finance Corporation (IFC) and the International Development Association (IDA). See also M Feldman, C Franzetti and M M Chiquier, Commentary on Annex XIII (IFC) Specialized Agencies Convention and E Okeke, Commentary on Annex XIV (IDA) Specialized Agencies Convention. 12 See A Reinisch, Introduction to the General Convention, MN 7ff. 11

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Agencies Convention and the level of protection they establish may be ‘applied indirectly’ in practice through the operation of different international or national legal instruments. 10 An example of incorporation of the Specialized Agencies Convention in a bilateral instrument is the ‘Basic Agreement for the establishment of technical advisory cooperation relations’13 concluded by the World Health Organization (WHO) with States in which the organization provides technical advisory services and normally establishes an office to manage and co-ordinate those services. Art. V para 1 of the model agreement used until 2011 provides that ‘the Government, insofar as it is not already bound to do so, shall apply to the Organization, its staff, funds, properties and assets the appropriate provisions of the Convention on the Privileges and Immunities of the Specialized Agencies’, thus incorporating the Specialized Agencies Convention by cross-reference including those WHO member States not parties to it.14 Seemingly there have been no challenges as to whether only some provisions of the Specialized Agencies Convention are ‘relevant’ for WHO’s functions or whether the bilateral obligation for non-parties to the Specialized Agencies Convention to apply the latter raises constitutional problems, since it arguably bypasses national accession procedures. It should be noted, however, that this issue was raised in the Governing Body of the International Labour Organization (ILO) with regard to the corresponding bilateral agreements concluded by that organization; in that case, the ILO’s Deputy Legal Adviser recalled the long-standing and unchallenged practice of the ILO, UNDP, and other UN entities in this regard as evidence of its legal acceptability.15 In the case of the World Intellectual Property Organization (WIPO), the host agreement it concluded with Brazil on the status of its office provides in Art. II that ‘the WIPO Office shall enjoy such privileges and immunities identical to those granted to specialized agencies of the United Nations’.16 11 An exception to the applicability of the Specialized Agencies Convention by crossreference is represented by the 1992 Italian case International Centre for Advanced Technical and Vocational Training (International Labour Organization) v Tirone Rosangela et al decided by the Court of Cassation.17 The legal status of the Centre was regulated by an agreement concluded in 1964 between Italy and the ILO that granted to the latter the WHO Model Basic Agreement for the establishment of technical advisory cooperation relations (on file with the author). 14 The model basic agreement was thoroughly revised in 2011, see 2011 Revision of the WHO Model Basic Agreement for the establishment of technical advisory cooperation relations (on file with the author). Art. VIII of the 2011 Revision provides as follows: ‘1. The Government shall apply the Convention to WHO, its Country Office, property, funds, assets and archives, as well as to its officials and experts on mission, in the Country. 2. In so far as the Government has not already acceded to the Convention with respect to WHO, the Government shall apply its provisions to WHO, its Country Offices, property, funds, assets and archives and to its officials and experts on mission in the Country.’). 15 ILO, ‘Minutes of the 317th Session of the Governing Body of the International Labour Office’ (2013) GB.317/PV, para 493. See also G L Burci and E Granziera, ‘Privileges and Immunities of the World Health Organization: Practice and Challenges’, (2014) 10 International Organizations Law Review 349, also more generally with regard to the practice and challenges faced by WHO to secure the respect of its privileges and immunities. The model basic agreement developed by WHO is not publicly available. However, the basic agreements concluded are registered with the United Nations upon their entry into force in accordance with Art. 102 of the Charter and thus available in the UNTS. See eg the Basic Agreement between the World Health Organization and the Government of the Democratic Republic of East Timor for the establishment of technical advisory cooperation, 20 May 2002, 2189 UNTS 357. 16 Quoted in E Kwakwa, ‘The Privileges and Immunities of the World Intellectual Property Organization— Practice and Challenges’, (2014) 10 International Organizations Law Review 373. 17 (1992) UNJYB 506. 13

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privileges and immunities enjoyed by the ILO under the Specialized Agencies Convention.18 The Court rejected a request by the Centre (now called the International Training Centre of the ILO) to quash an order of attachment by a lower court of its bank account on the ground that Italy at the relevant moment in time had not been bound by the Specialized Agencies Convention and thus had not granted any immunity to the ILO as such. The cross-reference to the Specialized Agencies Convention contained in the 1964 agreement was thus not seen as a sufficient legal basis for Italy’s obligation to respect the Centre’s immunity from legal process. On the basis of the available practice, the Specialized Agencies Convention seems to 12 represent in many cases a default legal basis for the privileges and immunities of Specialized Agencies in the absence of more specific sources, whether or not the latter incorporate or cross-refer to the substantive provisions of the Convention. The available case law reveals a limited number of such cases; in the Philippine case United States Lines Inc. v World Health Organization,19 for example, the appellate court upheld the dismissal by the court of first instance of a claim against WHO for its failure to remove cargo from the port of Manila after ten days. Even though the court considered the host agreement between the Philippines and WHO inapplicable for lack of proper ratification, it still upheld WHO’s immunity from legal process on the basis of the Specialized Agencies Convention, which the Philippines had acceded to and which was directly applicable to WHO. In a number of cases, national courts referred jointly to the Specialized Agencies 13 Convention as well as to other agreements as sources of the immunity of the organization concerned from legal process. In the Argentine employment case Duhalde v Pan-American Health Organization, for example, the Supreme Court of Argentina relied at the same time on the Specialized Agencies Convention as well as on the host agreement for the local office of the organization of 21 August 1951.20 Switzerland acceded to the Specialized Agencies Convention on 25 September 2012 14 without any reservation or declaration, with regard to all Specialized Agencies. Until 31 December 2007, the Swiss Federal Council was authorized to conclude individual headquarters agreements with international organizations having their seat in Switzerland and that appeared to be a conscious policy to define its specific obligations vis-à-vis international organizations on a case-by-case basis. Since 2008 a comprehensive federal law, the Host State Act,21 provides a general legal basis for the status, privileges, and immunities of a broad range of international organizations and other legal entities with an international status in Switzerland. That law aimed at rationalizing Switzerland’s practice and providing predictability in terms of what international organizations could expect from the Federal Government. Consequently, Switzerland’s accession to the Specialized Agencies Convention raised questions as to the applicable regime in view of the overlap of

18

Agreement between the Italian Government and the International Labour Organization on the International Centre for advanced Technical and Vocational Training, 24 October 1964, in ‘International Training Centre of the ILO—Basic Documents’, CC/LEG.1/Rev.6, undated, 10. 19 United States Lines Inc. v World Health Organization, Intermediate Appellate Court, 30 September 1983, (1983) UNJYB 232, 107 ILR 182. 20 Duhalde, Mario Alfredo v Organizacion Panamericana de la salud—Oficina Sanitaria Panamericana s/Accidente—ley 9688, CSJN, 31 August 1999. See a comment to that case in R E Vinuesa, ‘Argentina’, in A Reinisch (n 3), at 23. 21 Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, 22 June 2007, RS 192.12. BURCI

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different legal sources. Art. X Section 39 Specialized Agencies Convention states that the latter is without prejudice to the privileges and immunities that a State may accord to a Specialized Agency having its seat or regional office in its territory and that may therefore differ from the standard clauses of the Convention.22 Notwithstanding this, Switzerland has—for example in the case of WIPO—clarified that the host agreement and the Specialized Agencies Convention will be applied in a joint and complementary manner without restricting the scope of either instrument.23 15 In dualist countries, courts and governments apply the relevant national legislation rather than the international instruments that that legislation is implementing. The immediate connection between the Specialized Agencies Convention and the immunity enjoyed by a Specialized Agency is therefore lost or mediated by the courts’ application of the national legislation. In the case of India, for example, the privileges and immunities of Specialized Agencies are regulated by the United Nations (Privileges and Immunities) Act 1947.24 Even though India is a Party to the Specialized Agencies Convention and Indian courts have on occasion referred directly to it, the 1947 Act reproduces the text of the General Convention in a schedule annexed to it and provides for its application to organizations other than the UN through governmental notifications published in the Official Indian Law Gazette. The provisions of the General Convention as reproduced in the Schedule were extended mutatis mutandis to ten Specialized Agencies by various such notifications. In the case of P.S. Ochani v World Health Organization,25 for example, the Delhi High Court recognized that WHO figured among the Specialized Agencies listed in Art. I Section 1 Specialized Agencies Convention and proceeded to quote the text of Art. III Section 4 as well as the identical provision of Art. IV Section 5 of the host agreement between India and WHO related to the Regional Office of WHO for SouthEast Asia. However, the Court then proceeded to apply the 1947 Act and the provision of Art. II Section 2 General Convention as extended to WHO by a notification of 16 December 1948 pursuant to the Act. The reason for not applying the provisions of the Specialized Agencies Convention through a separate act or a separate schedule of the 1947 Act is not clear and leads from a legal point of view to the application by India of an international instrument different from that acceded to with respect to Specialized Agencies based and/or operating in the country. Even though it does not make a practical difference in the case of the immunity from legal process given to the identity between the two Conventions, the approach followed by India may lead to broadening or narrowing the legal protection enjoyed by Specialized Agencies as compared with the General Convention, for example with regard to the exemption of officials from national service obligations. 16 In the case of the UK, the 1968 International Organizations Act (amended in 2005) relies on Orders in Council to grant international organizations of which the UK is a member the privileges and immunities listed in Part I of Schedule 1 to the Act.26 The immunities provided therein include ‘immunity from suit and legal process’. The 1974 22

See B Moradi, Commentary on Art. X Section 39 Specialized Agencies Convention for further reference. E Kwakwa (n 16), at 376. 24 Act No. 46 of 1947. The text is available at last accessed 6 August 2014. 25 Delhi High Court, 4 December 2001, available at last accessed 9 August 2014. 26 International Organizations Act 1968 (IOA), 26 July 1968, [1968] c 48 [UK]. 23

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Specialized Agencies of the United Nations (Immunities and Privileges) Order supplements that provision with specific regard to the Specialized Agencies by adding in para 7 of Part II that ‘Except in so far as in any particular case it has expressly waived its immunity, the Organization shall have immunity from suit and legal process. No waiver of immunity shall be deemed to extend to any measure of execution’.27 The UK is a Party to the Specialized Agencies Convention and it is significant that the combined language of the Act and the Order fully reflects the scope of Art. III Section 4 Specialized Agencies Convention. It is also interesting that, even in a dualist legal system such as that of the UK, courts have occasionally referred to the Specialized Agencies Convention as a source of immunities rather than only relying on implementing legislation. In the High Court case of Entico Corp Ltd v UNESCO and Another,28 for example, Tomlinson J remarked that: This case concerns a challenge to UNESCO’s immunity from legal process, bestowed upon it by United Kingdom legislation pursuant to the UK’s obligation undertaken by access to the [Special Convention] . . . These provisions apply to UNESCO under Annex IV of the 1947 Convention, to which the United Kingdom has notified its acceptance as a member of UNESCO . . . I have already set out the source of [the UK’s] obligation . . . , the 1947 Convention.29

D. Key Elements ‘The specialized agencies . . .’ As in the case of the UN, the term ‘specialized agencies’ includes subsidiary bodies and special 17 programmes established by the main organs of the organizations.30 The available practice does not reveal many cases instituted against specific organs or programmes that may raise issues of attribution or questions about the separate personality of the entity in question. The only known exception to this general statement is the case International Centre for 18 Advanced Technical and Vocational Training (International Labour Organization) v Tirone Rosangela.31 The Italian Court of Cassation rejected a request by the Centre to respect its immunity of execution against an order of attachment on the argument inter alia that under the host agreement concluded between Italy and the ILO in 1964, the Centre had a distinct legal personality from that of the ILO and thus the privileges and immunities granted to the latter could not be extended to the Centre.32 The conclusion reached by the Court seems legally incorrect as the agreement limited itself to recognizing the legal capacity of the Centre in Italy without intending to establish it as a separate institution from the ILO.

27

The Specialized Agencies of the United Nations (Immunities and Privileges) Order 1974, SI 1974/1260, Art 6. 28 Entico Corp Ltd v United Nations Educational, Scientific and Cultural Organization and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 531 (Comm) (18 March 2008). 29 ibid. paras 2, 17. 30 See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention, MN 50, for further reference. 31 See n 17. 32 The Court noted that under Art. 2 of the 1964 host agreement the Centre was recognized as having a legal personality of its own and that, though linked to the ILO, it was clearly distinct from it. As recognition of immunity from legal process had been excluded by the 1964 host agreement, there was ‘evidently no legal link that would have permitted the extension of the immunity—now unconditionally recognized for the International Labour Organization—also to the International Centre’. ibid. BURCI

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19

An issue that has gained some prominence since the end of the 1990s concerns the emergence and proliferation of innovative governance structures in several areas of international relations such as education, health, and environmental protection that are commonly referred to as ‘public–private partnerships’ (PPP). Even though that term has been applied indiscriminately to a wide range of diverse initiatives and entities, the relevant issue for the purpose of this commentary is the establishment of long-term initiatives by a range of public and private actors such as governmental agencies, international organizations, non-governmental organizations, commercial companies, philanthropic foundations, and scientific institutions. Those actors, often organized in constituencies of groups of stakeholders represented by one of them on a rotational basis in the PPP’s governance, take a long-term commitment to act jointly and to contribute their resources and comparative advantage for the pursuit of a specific purpose. Such commitment is expressed through the conclusion of constitutive acts which can either be contractual instruments under national law or ‘soft’ forms of engagement such as memoranda of understanding or even joint declarations. The two distinctive features for present purposes are, first, the fact that a number of PPPs have concluded hosting arrangements with some Specialized Agencies rather than establishing themselves as separate international agencies or national corporations. Secondly, they have developed complex and independent governance structures comprising the partners or their constituencies which take decisions on behalf of the PPP on budget, programme of work, activities, grants, etc. 20 In the case of hosted PPPs, the hosting agency typically participates in the PPP’s governance and its decision making and at the same time provides the secretariat of the PPP which thus forms an organic part of the hosting institution. While the implementation of the decisions of the PPP’s governance by the secretariat must be carried out in compliance with the rules and accountability mechanisms of the hosting organizations, the governance of the PPP remains largely independent from that of the hosting organization and is often hardly controllable by it notwithstanding its participation in decision making.33 21 From a formal point of view, the actions taken by the PPP secretariat are attributable to the hosting organization and are thus protected by its immunities. However, the independence of many hosted PPPs and their reluctance at being identified with the hosting organizations have raised questions as to the acceptability of assuming that the Specialized Agencies concerned could or should invoke their immunities for activities that may not fall squarely within their functions and that were taken by entities purporting to act like separate legal persons. Such questions, coming at times from host countries of some of the Specialized Agencies concerned, have led to recent policy developments. In the case of WHO, for example, the 2010 ‘Policy on WHO Engagement with Global Health Partnerships and Hosting Arrangements’ states the following as a condition for WHO’s hosting of PPPs: The hosting of a partnership by WHO goes beyond the simple provision of administrative services. The secretariat of a hosted partnership is part of WHO’s Secretariat and, as such, shares the legal identity and status of the Organization. In particular, the staff of the partnership will, as staff members of WHO, enjoy the applicable privileges and immunities for the protection of their

33

On the implications of PPPs hosted by WHO, including for its immunities, see G L Burci and E Granziera (n 15), at 368–71. BURCI

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functions. To this end, it is essential that the function of the secretariat be, and be seen as, part of the functions of WHO. This consideration is particularly relevant for Switzerland, the host country of WHO’s headquarters, which has granted privileges, immunities and facilities to the Organization and its staff for the performance of its constitutional mandate. In order to comply with the host agreement between WHO and the Swiss Federal Council, the functions of the partnership secretariat must be part of the overall functions of WHO and may not be seen as separate from them. The Director-General will consult with the Swiss authorities when considering the hosting of formal partnerships.34

The complexity of the consequences arising out of hosting or housing arrangements 22 with Specialized Agencies and other organizations are confirmed by the 2010 advisory opinion of the ICJ in Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development.35 The Court upheld the jurisdiction of the ILO Administrative Tribunal in a complaint brought by a staff member of the Global Mechanism of the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (the Mechanism) against the International Fund for Agricultural Development (IFAD). The Mechanism was established by the Conference of the Parties to the Convention but hosted by IFAD through a memorandum of understanding and integrated in the administrative and institutional structure of the Fund. The Court rejected IFAD’s argument that the Mechanism legally belonged to the governance of the Convention and therefore was not covered by IFAD’s acceptance of the jurisdiction of the ILO Tribunal. It found instead that the administrative integration of the Mechanism into IFAD made it a part of the latter with regard to the applicability of IFAD’s rules and its system of administration of justice. Even though the Court was not directly concerned with the immunities enjoyed by the Mechanism and referred to them only in passing,36 the conclusions reached by the Court have evident implications in terms of the applicability of the immunities enjoyed by IFAD under the Specialized Agencies Convention to the Mechanism, its assets and its staff, even though arguably the functions that the latter discharged are institutionally closer to the purposes of the Convention rather than those of IFAD. ‘their property and assets wherever located and by whomsoever held,’ The general considerations under the commentary to Art. II Section 2 General Conven- 23 tion concerning the interpretation and scope of this part of the provision also apply to the Specialized Agencies, in particular the consideration that the clause in question aims at protecting the assets of Specialized Agencies from execution since properties and assets do not enjoy a separate legal personality and cannot be sued or subject to legal process as such.37 This interpretation is strengthened by the specific protection offered by Art. III Section 5 to property and assets from ‘search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative 34

World Health Assembly Res WHA63.10, in WHA63/2010/REC/1, 17. Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, (2012) ICJ Rep 10. 36 ibid. at 29. 37 See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention, MN 61, 69ff, for further reference. 35

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action’. Moreover, the formulation makes it clear that the protection of the property and assets continues even when they are not held physically by the agencies, for example, bank accounts and investments in commercial banks owned by a Specialized Agency. Thus, in a note verbale of 2003, the Ministry of Foreign Affairs of France stated that the International Labour Office (the Secretariat of ILO) did not have legal capacity and that the enjoyment of privileges and immunities was linked to the organization’s headquarters. Referring to Art. III Section 4 Specialized Agencies Convention, the Office replied that the text of the Convention and the practice of its implementation did not allow any distinction between property, funds, and assets located at headquarters and those located in separate offices or elsewhere.38 24 The immunity of property and assets from legal process and other forms of interference is legally and logically predicated on the legal capacity of Specialized Agencies to acquire and hold in their own name ownership over movable and immovable goods. Such capacity is, in the case of the Specialized Agencies Convention, based on Art. II Section 3,39 but also often appears in the constitutive instrument of several Specialized Agencies and directly or by cross-reference, in bilateral host and co-operation agreements.40 25 The fact that States recognize and grant to Specialized Agencies legal personality and capacity to operate within their respective legal systems raises the complex question of the applicability of national law to international organizations as well as their transactions and activities.41 That question cannot be discussed in any detail in the present commentary; however, in principle the applicability of national law to the holding of both movable and immovable property appears inevitable from both a logical and legal point of view. If a Specialized Agency, for example, purchases a building for its own use, it is difficult to argue that it would or should be exempted from the procedural and public law provisions applicable in the territorial State, or that the scope of the rights of ownership enjoyed by the agency would not be regulated by the substantive law of that State. Nothing in the Specialized Agencies Convention, the constitutive instruments of the agencies, or applicable host agreements suggests that a different legal regime would apply; consequently, by default, the law of the State where the immovable property concerned is located would normally apply. This conclusion is strengthened by the reservations that certain States have made without any objection upon their accession to the Specialized Agencies Convention with the purpose of regulating or limiting the right of Specialized Agencies to acquire certain categories of goods on constitutional grounds.42 Correspondence on file with the author. See N Blokker, Commentary on Art. II Section 3 Specialized Agencies Convention for further reference. 40 An example of a clause contained in a constitutive instrument is Art. 39 Constitution of the International Labour Organisation, 15 UNTS 35 (‘The International Labour Organisation shall possess full juridical personality and in particular the capacity: (a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to institute legal proceedings.’). 41 The sole elaborate analysis of this issue to the knowledge of this author is A Reinisch, ‘Accountability of International Organizations According to National Law’, (2005) 36 Netherlands Yearbook of International Law 119, and other literature cited there. An important statement in terms of the applicability of national law to contracts concluded by international organizations is the 1977 Resolution of the International Law Institute on ‘Contracts Concluded by International Organizations with Private Persons’, (1977) 57 Annuaire de l’Institute de Droit International 333. 42 In the case of Indonesia eg ‘The capacity of the specialized agencies to acquire and dispose of immovable property shall be exercised with due regard to national laws and regulations’; in Lithuania, ‘the specialized agencies shall not be entitled to acquire land in the territory of the Republic of Lithuania, in view of the land regulations laid down by the Article 47 of the Constitution of the Republic of Lithuania’; finally, South Africa 38 39

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The subjection of the ownership or possession of the property, funds, and assets of 26 Specialized Agencies to the lex loci, however, is unrelated to the enjoyment by the agencies concerned of immunity from legal process and execution. In other words, the fact that the acquisition and enjoyment of ownership may be regulated by the law of a State, does not turn them into transactions or situations iure gestionis such that the State could exercise jurisdiction over them. The formulation of Art. III Section 4 Specialized Agencies Convention together with that of Art. II Section 3 Specialized Agencies Convention leads to the conclusion that the immunity from legal process protects the use of the property, funds, and assets of the Specialized Agencies for the performance of their constitutional functions, whatever the legal regime applicable to their acquisition, enjoyment, holding, and disposition may be. The question is rather whether such functional immunity is absolute or limited.43 While this particular issue will be discussed in the next section, it should be noted that 27 certain States have taken a position with specific regard to properties, funds, and assets. France, in particular, made a number of reservations upon its accession to the Specialized Agencies Convention in 2000. Under the first reservation, ‘only property, funds and assets belonging to agencies, administered by them and earmarked for the functions assigned to them under the agreements by which they were established, and to which France has acceded, shall enjoy the privileges and immunities provided for in the Convention’.44 The reservation implies that Specialized Agencies could hold property, funds, and assets for purposes other than the discharge of the functions entrusted to them under their constitutive instruments. An explanatory memorandum did not accompany the reservation and its actual meaning and purpose remains unclear. The Specialized Agencies covered by France’s accession considered objecting to the reservation as incompatible with their functional nature;45 however, the problems and uncertainties created by France’s non-participation in the Specialized Agencies Convention for the Geneva-based Specialized Agencies, due to the fact that many of their officials resided in the French region adjoining Geneva, discouraged them from objecting to the reservation. The general nature of the term ‘asset’ suggests that intangible forms of property such as 28 intellectual property rights could also fall within the scope of Art. III Section 4 Specialized Agencies Convention. This possibility seems to depend on whether registering and owning intellectual property rights such as patents, trademarks, or copyrights could arguably fall within the ambit of the functions entrusted to the individual Specialized Agencies. This assessment, in turn, should be based on an explicit decision or policy by the governing body or the agency concerned or, in its absence, by the functional link between the constitutional mandate of the agency, the nature of the right, and the use to

filed a reservation ‘in so far as it relates to the buying, selling and holding of gold as certain limitations exist in the Republic regarding the buying, selling and holding of gold’. The reservations are available at last accessed on 31 August 2014. See also C Binder, Commentary on Final Article Sections 31–36 Specialized Agencies Convention, MN 4ff, for further reference. 43

See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention, MN 13ff, for further reference. 44 France’s reservation is available online at last accessed 13 June 2015. 45 France’s reservation implies that Specialized Agencies could use their properties, funds, and assets for reasons unrelated to their statutory functions, which conflicts with the purely functional nature of their legal personality and of all their activities. BURCI

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which it would be destined. In the case of WHO, for example, the World Health Assembly adopted in 1982 a policy under which the Director-General could ‘obtain patents, investors’ certificates or interests in patents on patentable health technologies developed through projects supported by WHO . . . ’.46 Even though WHO eventually applied for a very limited number of patents (subsequently discontinued) and does not appear to have been the object of legal challenges or lawsuits, it could arguably have invoked its immunities under Art. III Section 4 Specialized Agencies Convention to protect its patents as forming part of its assets. ‘ . . . shall enjoy immunity from every form of legal process’ 29 As in the case of the corresponding provision of the General Convention, Art. III Section 4 is formulated in unqualified and absolute terms. Its language is repeated verbatim in a number of instruments such as, in particular, headquarters or host agreements.47 In some cases, however, the formulation agreed upon by the Specialized Agency and the host State may deviate from the model offered by the Specialized Agencies Convention. In the case of WHO, for example, Art. 6 of the 1948 host agreement with Switzerland utilizes the term ‘action judiciaire’ which appears to be narrower that ‘legal process’.48 The difference in terminology, however, does not seem to have had any practical consequence in the relationship between WHO and its host country. 30 The term ‘judicial process’ proposed during the negotiation of the General Convention, was eventually replaced by the expression ‘legal process’ which arguably has a broader scope and may refer to any form of exercise of jurisdiction by a state of an adjudicatory or similar nature. Moreover, as in the case of Art. II Section 2 General Convention,49 a systematic reading of the provision under review points to the fact that the immunity from legal process extends not only to adjudicatory jurisdiction but also to execution. As noted earlier (see MN 23), the explicit inclusion of property and assets as the object of protection, as well as the reference to execution with regard to the waiver of immunities, justifies such a conclusion. The consistent and unequivocal practice of Specialized Agencies confirms the assumption that immunity from legal process includes protection from executive or enforcement acts, otherwise the very purpose of the immunity would be negated.

a) The Scope of ‘Legal Process’ 31 While it is clear that Art. III Section 4 Specialized Agencies Convention mostly addresses processes of a judicial or quasi-judicial nature, the question remains as to what its scope is besides the case of judicial processes instituted against Specialized Agencies. 32 As in the case of the corresponding provision of the General Convention, the broad terminology of ‘legal process’ points to the applicability of the immunity also in cases of legal process not directed against a Specialized Agency but related to disputes between 46

World Health Assembly Res WHA35.14, 12 May 1982, WHA35/1982/REC/1, 9. See eg Art. VIII Section 16 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. 48 Agreement between Switzerland and the World Health Organization concerning the legal Status of the World Health Organization, 21 August 1948, 26 UNTS 331. 49 See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention, MN 69ff, for further reference. 47

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third parties. The practice of the UN and of the Specialized Agencies confirms this interpretation. The most frequent such instances are requests addressed to Specialized Agencies to provide documentation related to, or that could assist in, litigation between third parties; requests addressed to the agencies to allow officials to participate as witnesses or experts in litigation; and attempts to attach the funds of agencies in the context of civil litigation, especially with regard to alleged non-compliance by officials of the organization with their private obligations.50 In cases of requests by a judicial authority, or directly by one of the parties to a dispute, 33 to produce documents, the immunity of the organization from legal process overlaps with the inviolability of archives under Art. III Section 6 Specialized Agencies Convention and will be discussed in that context.51 Both in this instance as well as in requests for providing witnesses, the immunity from 34 legal process has to be seen in the context of each agency’s policies and practices concerning participation in, or support to, litigation between third parties. WHO and WIPO, for instance, have observed a consistent if informal approach to decline to support litigation in order to maintain its impartiality as an international agency. In the case of WHO, exceptions have been very infrequently made when the Director-General has determined that providing support was in the overwhelming interest of the organization, when WHO’s position had been misrepresented, and WHO was the sole actor with the required knowledge or information. In some cases, moreover, and based on a case-by-case assessment, WHO has voluntarily provided the requestor with publicly available technical WHO publications relevant for the subject of the dispute. With regard to court orders to garnish wages of officials to fulfil private obligations, 35 especially with regard to alimonies or child support in the context of divorce proceedings, Specialized Agencies share the UN’s position that this would constitute a form of legal process and seizure of the agency’s funds.52 In order to avoid abuses of the organization’s immunity as a device to elude private obligations, WHO has amended its Staff Rules to enable the Director-General to make deductions from salaries, wages, and other emoluments on the basis of a final judgment or an executive court order against a staff member.53 Similarly, WIPO has amended its Staff Regulations to allow deductions from salaries to satisfy private obligations of staff on the basis of either a court order in case of spousal or child support; or when the deductions have been agreed upon by the staff member concerned.54

50

See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention, MN 83–9. See G L Burci, Commentary on Art. III Section 6 Specialized Agencies Convention, for further reference. 52 See A Reinisch, Commentary on Art. II Section 2 Specialized Agencies Convention, MN 91–3 and (1983) UNJYB 213. 53 See WHO Staff Rule 380.5 (on file with the author) (‘Deductions from salaries, wages and other emoluments, including terminal entitlements, may be made only in the following cases: . . . for indebtedness to third parties when any deduction for this purpose is authorized by the Director-General.’) Staff Rules, however, are not publicly available. 54 WIPO, ‘Staff Regulations and Rules of the International Bureau of WIPO’ (1 November 2014); Regulation 3.18 allows monthly deduction from salaries inter alia for the following purposes ‘(d) payments on any debt due to third parties when such debt comprises a court order against a staff member to make payments for the support of his or her spouse or former spouse and/or dependent children (“family support orders”) under the conditions prescribed in an Office Instruction, when such deduction has been authorized by the Director General; (e) repayments on any other debts due to third parties when a deduction for that purpose has been authorized by the Director General and the staff member concerned.’). 51

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The UN has broadly interpreted ‘legal process’ to include ‘every form of process before national authorities’ not only of a judicial nature but also administrative or executive.55 Specialized Agencies have followed this interpretation of the scope of their immunities. The practice of WHO, for example, shows that it has considered certain non-judicial processes as being covered by its immunity, in part because of their analogy with judicial processes, in part because of their possible legal consequences, and in part because they may represent forms of interference under Art. III Section 5 Specialized Agencies Convention with the unfettered exercise of WHO’s functions and with the application of its own rules. In a recent case,56 the District Labour Office of a State summoned several times the head of the local WHO office to inquire about the contractual conditions of a consultant hired on a short-term contract. The letter threatened legal action in accordance with the applicable law in case of non-compliance. The head of the WHO country office addressed himself to the Ministry of External Affairs, invoking WHO’s immunities under the basic agreement on technical co-operation with the country concerned which was not a Party to the Specialized Agencies Convention. The summons from the District Labour Office appeared to have stopped after that intervention.57 37 Another example of non-judicial process relates to requests addressed by national parliaments to have WHO officials participate as witnesses or experts in parliamentary inquiries, discussions over pending legislation, or reviews of the implementation of existing legislation. For some of these requests, participation would require the official taking an oath and thus placing him/her and the organization under the jurisdiction and the applicable law of the country in question, for example, with regard to allegations of perjury or false testimony. At the same time, WHO’s mission includes supporting member States in developing appropriate public health and related legislation; this may imply contributing evidence and information to parliamentary bodies and being prepared to engage in a dialogue with them. A balance between these potentially conflicting considerations requires a case-by-case assessment of the nature of the request, of the political context surrounding it and of the interest of the organization in contributing to a national process of a political/technical character. When WHO accepts an invitation to contribute to a parliamentary process, every effort is made to avoid negative implications in relation to its immunities, such as providing its contribution in writing only or accepting to have an official participate on a purely voluntary basis, without the requirement of an oath and without prejudice to the immunities of the organization and the official. 36

b) Does ‘Immunity from Every Form of Legal Process’ Mean Absolute Immunity? 38 The available practice of the Specialized Agencies shows that most States applying either the Specialized Agencies Convention or bilateral instruments containing an identical formulation to Art. III Section 4 Specialized Agencies Convention recognize explicitly or implicitly the absolute immunity of Specialized Agencies from legal process. Functional immunity in such cases corresponds to absolute immunity. An exception, of course, is the

55 56 57

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See eg (1968) UNJYB 215. Case on file with the author. Correspondence on file with the author.

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IBRD since Annex VI to the Specialized Agencies Convention reproduces the text of Art. VII Section 3 of the Bank’s Articles of Agreement that reads as follows: Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.58

It should also be recalled that published court cases against Specialized Agencies are 39 relatively limited when compared with litigation against the UN or organizations outside the UN system, even in countries such as Belgium and Italy with a tradition of judicial activism against international organizations, in particular for employment disputes. The courts that have interpreted the clause in question in a restrictive manner with 40 regard to Specialized Agencies have done so, by and large, on two different grounds: they have either applied to the agencies the distinction between acts iure imperii and iure gestionis deriving from State immunity; or they have subordinated the respect for judicial immunity to the availability of legal remedies in order to safeguard the right of access to justice by the plaintiff.59 Both arguments are well exemplified by the jurisprudence of Italian courts, both lower courts as well as the Court of Cassation, with regard to the Food and Agriculture Organization (FAO). At the outset, it should be recalled that Italy submitted an instrument of accession to 41 the Specialized Agencies Convention in 1952 containing two reservations; pursuant to one of them Italy would grant to the Specialized Agencies the immunities provided for in Art. III Section 4 Specialized Agencies Convention only insofar as those immunities are accorded to foreign States in accordance with international law.60 The UN SecretaryGeneral refused to deposit the instrument on the basis of objections by the Specialized Agencies that considered the Italian reservation incompatible with the object and purpose of the Specialized Agencies Convention.61 Such incompatibility derived from equating functional entities such as the agencies that could only act at any time in pursuit of their constitutional mandate (with the obvious exception of ultra vires acts), with States that may choose to behave like a private actor in the territory of other States. Consequently, from the Specialized Agencies’ point of view Italy did not become a Party to the Specialized Agencies Convention until 1985, when it deposited a new instrument of accession without reservations but with a declaration under which it reserved the right 58 Articles of Agreement of the International Bank for Reconstruction and Development, 2 UNTS 134. For a detailed discussion of this particularity see E Okeke, Commentary on Annex VI (IBRD) Specialized Agencies Convention. 59 See A Reinisch, Commentary on Art. II Section 2 General Convention, MN 29–49. Within the growing body of literature on the limitation of international immunities for the protection of the right to access to justice, see C Ryngaert, ‘The Immunity of International Organizations Before Domestic Courts: Recent Trends’, (2010) 7 International Organizations Law Review 121; A Reinisch and U A Weber, ‘In the Shadow of Waite and Kennedy. The Jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’, (2004) 1 International Organizations Law Review 59. 60 Adesione dell’Italia alla Convenzione sui privilegi e le immunità della istituzioni specializzate delle Nazioni Unite, Gazzetta Ufficiale della Repubblica Italiana, Part I, No. 173, 28 July 1952, 2791. See also (1963) UNJYB 188. 61 (1963) UNJYB 190.

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to apply supplemental agreements under Art. X Section 39 of the Convention with Specialized Agencies that established their headquarters or a regional office in the Italian territory.62 The attitude of Italian courts with regard to the applicability of the Italian reservation is not clear, but they appear to have considered Italy as a Party to the Convention subject to its reservation. 42 The landmark case in this connection (that caused years of tensions between FAO and Italy) arose out of a lawsuit by the ‘Istituto nazionale di previdenza per i dirigenti di aziende industriali’ (INPDAI) against FAO, seeking an increase in the rent paid by FAO for the lease of office space. The rental contract provided for settlement of any dispute by arbitration and FAO invoked the lack of jurisdiction of Italian courts pursuant both to Art. XV of the FAO Constitution and Art. VIII of the Headquarters Agreement between Italy and FAO; given the position taken by the Specialized Agencies with respect to Italy’s reservation, FAO did not invoke the Specialized Agencies Convention as a legal basis for its immunity.63 The Court of Cassation confirmed the jurisdiction of the lower courts.64 The arguments relied upon by the Court were essentially three: 1) any immunity granted to States or international organizations had to be subordinated to the right to access to justice guaranteed under Art. 24 of the Italian Constitution; 2) FAO’s immunity was limited to the seat of the organization in Rome and its assets rather than being of a general nature; the capacity of FAO under Art. VIII of the Headquarters Agreement to institute legal proceedings automatically implied its subjection to the jurisdiction of the Italian courts and rendered irrelevant the provision for alternative modes of dispute settlement contained in the lease contract and required under Art. IX Section 31 Specialized Agencies Convention; and 3) FAO’s immunity had to be restricted to activities designed to achieve its public aims and denied for transactions of a private nature not directly related to the pursuit of its institutional aims, similarly to the immunities of foreign States under customary international law. 43 Italy’s main concern in the ensuing discussions appeared to be the lack in FAO’s Headquarters Agreement of a legal requirement to settle disputes between FAO and private parties including officials; this raised the constitutional concerns referred to by the Court of Cassation. The jurisprudence of Italian courts vis-à-vis other international organizations headquartered in Italy also showed their readiness to reject immunities for employment disputes.65 After a few years of negotiations and a threat by the FAO Council to seek an advisory opinion of the ICJ, the dispute was settled through Italy’s withdrawal of its reservation and its accession to the Specialized Agencies Convention in 1985. At the

62 A Reinisch, International Organizations Before National Courts (CUP 2000) 187. The attitude of the UN Secretary-General was based on a long-standing practice to refuse the deposit of instrument of accession to the Specialized Agencies Convention containing reservations deemed by the agencies concerned as incompatible with the object and purpose of their immunities. The UN Secretary-General applied a similar approach in at least one case of accession to the General Convention with a reservation excluding privileges and immunities for officials and experts on mission of the nationality of the reserving State, see (1963) UNJYB 188. 63 For a full history of the litigation and the ensuing diplomatic controversy between FAO and Italy, see A Reinisch (n 62), at 131 and 186. 64 Food and Agriculture Organization of the United Nations v Istituto Nazionale di Previdenza per i dirigenti di aziende industriali, Court of Cassation, 18 October 1982, Case No. 5399, (1983) Rivista di diritto internazionale privato e processuale 151; (1982) UNJYB 234. 65 R Pavoni, ‘Italy’, in A Reinisch (ed), The Privileges and Immunities of International Organizations in Domestic Courts (OUP 2013) 173ff; and B Bonafe, ‘Italian Courts and the Immunity of International Organizations’, (2014) 10 International Organizations Law Review 521.

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same time, FAO and Italy exchanged notes through which the organization clarified the modalities of its implementation of Art. IX Section 31 Specialized Agencies Convention. FAO noted that its immunities were based not only on its Constitution and Headquarters Agreement but also, on the basis of Italy’s accession, on Art. III Section 4 Specialized Agencies Convention and its unambiguous grant of absolute immunity from legal process; its note avoids any implication that the provision of modes of settlement of disputes arising out of contracts and other disputes of private character could be seen as a precondition for the enjoyment of its immunity. The main modalities of dispute settlement offered by FAO, which reflect in general the practice of the UN and of other Specialized Agencies, is the subjection of employment disputes with officials to the jurisdiction of the ILO Administrative Tribunal, the provision of conciliation and international arbitration for contracts, and insurance coverage as well as conciliation and arbitration for the unlikely cases of tort claims against the organization. The Court of Cassation consciously reversed its previous jurisprudence in an employ- 44 ment dispute of 1992, FAO v Colagrossi.66 The Court recognized FAO’s immunity and the lack of jurisdiction of Italian courts based on the following main arguments: 1) the capacity to institute legal proceedings does not imply a lack of immunities, thus reversing the erroneous findings in the INPDAI case;67 2) the Court abandoned its previous analogy with sovereign immunities under customary international law and based its analysis on Art. VIII Section 16 of FAO’s Headquarters Agreement, that has to be interpreted with the equivalent provision of the Specialized Agencies Convention no longer affected by Italy’s previous reservation. The distinction between ‘public’ and ‘private’ acts is not even mentioned in the judgment; 3) given the conventional, rather than customary, source of FAO’s immunities, the Court also relied on the aforementioned exchange of notes between FAO and Italy as an agreed interpretation of the scope of FAO’s immunity and its connection with FAO’s compliance with its obligations under Art. IX Section 31 Specialized Agencies Convention; 4) on this basis, the Court excluded a conflict between the lack of jurisdiction of Italian courts over employment disputes and the right of access to justice enshrined in Art. 24 of the Italian Constitution, given the adequacy of the alternative mode of settlement consisting of the referral of such disputes to the ILO Administrative Tribunal. It appears from the available court cases that the tendency to subject the recognition of 45 the immunities of international organizations to the availability of ‘reasonable alternative means’ of dispute settlement, most visible in the jurisprudence of the ECtHR since the 1999 case of Waite and Kennedy v Germany68 and in a number of national judgments in countries such as Belgium, France, Germany, and Italy, has not had a notable impact on the Specialized Agencies.69 This is arguably due to the mechanisms for dispute settlement available to both officials and third parties and to their developed systems for internal and external accountability such as audits and oversight, and ethics reviews. 66 Food and Agriculture Organization of the United Nations v Paola Colagrossi, Court of Cassation, 18 May 1992, No 5942, (1995) 101 ILR 386–94. 67 See n 64. 68 Waite and Kennedy v Germany, Application No. 26083/94, European Court of Human Rights, 18 February 1999, [1999] ECHR 13; Beer and Regan v Germany, Application No. 28934/95, European Court of Human Rights, 18 February 1999, [1999] ECHR 6. 69 See the literature at n 59. See also K Schmalenbach, Commentary on Art. IX Sections 31–32 Specialized Agencies Convention for further reference.

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In the case of officials, all Specialized Agencies have first established various forms of internal administrative recourses and, secondly, have accepted the jurisdiction of either the ILO Administrative Tribunal or of the UN Dispute and Appeals Tribunals, or have established their own administrative tribunals in the case of the World Bank and the IMF. With regard to third parties, the Specialized Agencies customarily provide for international arbitration, sometimes preceded by conciliation, in their contracts with individual or corporate contractors. With regard to contracts, the Specialized Agencies have adopted a number of standard clauses reflecting the specific transaction and the nature and legal situation of its counterparts. For example, WHO contracts with commercial companies provide for conciliation followed by arbitration in accordance with either the rules of arbitration of the International Chamber of Commerce or those of UNCITRAL; contracts with US universities (which are often barred by their statutes from agreeing to arbitration) instead provide for good faith negotiation and conciliation.70 WIPO’s General Conditions of Contract contain a clause that must be included in all letters of award and contracts, providing for arbitration under UNCITRAL Arbitration Rules in case of failure of amicable settlement within 60 days.71 Tort claims are usually addressed through insurance arrangements covering traffic accidents and third-party liability. 47 While some of the available court cases, like the Italian cases summarized earlier (see MN 42–4), explicitly or implicitly link their respect for the immunities of the Specialized Agencies with the protection of the right of access to justice, this is not a unanimous attitude. In the 2008 case Entico Corporation v UNESCO72 before the UK High Court, for example, Justice Tomlinson stated that 46

there is nothing in the Convention to make enjoyment of the privileges and immunities conferred by Section 4 and 5 dependent upon compliance with Section 31 . . . section 31 does not say that the mode of settlement for which provision is made must be effective.73

The lack of an explicit connection between immunity and dispute settlement, and the clear language of Art. III Sections 4 and 5 of the Specialized Agencies Convention made UNESCO’s absolute immunity from legal process prevail in the eyes of the Court. In an

The more frequent standard clause reads as follows: ‘Any dispute relating to the interpretation or application of this Agreement shall, unless amicably settled, be subject to conciliation. In the event of failure of the latter, the dispute shall be settled by arbitration. The arbitration shall be conducted in accordance with the modalities to be agreed upon by the parties or, in the absence of agreement, in accordance with the UNCITRAL Arbitration Rules as at present in force. The parties shall accept the arbitral award as final’ (on file with the author). The model clause for contract with US universities reads as follows: ‘Any dispute relating to the interpretation or execution of this Agreement shall, unless amicably settled, be subject to conciliation. In the event of failure of the latter, and without prejudice to the privileges and immunities enjoyed by WHO, the parties agree to negotiate in good faith to find another means of finally settling the dispute.’ 71 Art. 7.3 WIPO ‘General Conditions for the Purchase of Services’ (‘Any dispute, controversy or claim arising out of or relating to the contract, or the breach, termination or invalidity thereof, shall, unless settled amicably under the preceding paragraph within sixty (60) days after receipt by one Party of the other Party’s request for such amicable settlement, shall be referred by either Party to arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The appointing authority shall be the Secretary General of the Permanent Court of Arbitration. The number of arbitrators shall be one. The place of arbitration shall be Geneva, Switzerland. The language to be used in the arbitral proceedings shall be English. The Parties agree to be bound by the arbitration award rendered in accordance with such arbitration, as the final adjudication of any such disputes, controversy or claim.’ See last accessed 5 January 2015. 72 See n 28. 73 ibid. 70

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interesting variation, the Delhi High Court in the aforementioned Ochani v WHO74 case did not hesitate to dismiss the suit for lack of jurisdiction but added that . . . to be fair to the plaintiff and on the premise of equity and natural justice . . . the Central Government is requested to settle the matter amicably by using its office and getting the grievance of the plaintiff redressed, if any.75

c) Is There a Need to Invoke Immunity from Every Form of Legal Process? As in the case of the corresponding section in the General Convention, the provision that 48 Specialized Agencies ‘shall enjoy’ immunity from every form of legal process suggests that each party to the Specialized Agencies Convention is under a positive obligation to respect such immunity with regard to the agencies to which it applies the Convention.76 In principle, the courts of those States are supposed to be cognizant of the relevant immunities and to apply them ex officio. In a case concerning WIPO, for example, the Court of Justice of Geneva dismissed ex officio without even notifying WIPO a lawsuit trying to enjoin the organization from publishing a patent application after the expiry of the statutory secrecy period.77 However, that hardly ever occurs in practice and courts have to be advised of their lack of jurisdiction, either by government or, as a last resort, by the Specialized Agency concerned. The practice of WHO in this respect is, first of all, that officials of the organization 49 should not accept to be served legal process in order to avoid any implication of acquiescing to local jurisdiction; they should instead request that any form of legal process be served through the Ministry of Foreign Affairs. If judicial acts are received regardless of the modalities and channels, the organization brings it to the attention of the Ministry of Foreign Affairs with a request that the latter advise the court of WHO’s immunity and request it to dismiss the case. In case the organization is seized at the last moment and proceeding through diplomatic channels is not practically possible because of lack of time or an impending deadline, WHO addresses itself directly to the relevant court with a copy to the Ministry of Foreign Affairs. WHO follows the practice of the UN in avoiding as much as possible retaining counsel and appearing in any court proceedings. This is largely to avoid raising any doubt as having waived immunities and accepted the court’s jurisdiction; not to dilute the primary obligation to assert the immunities of international organizations, which rests with the government concerned; and in view of the financial implications of retaining legal counsel. Ministries of foreign affairs are required to inform the courts of the immunities of the 50 Specialized Agency concerned, to transmit any finding by the executive head of the Specialized Agency concerned as to the applicability of the immunity of the organization, and to act as their agents in seeking dismissal of the claim for lack of jurisdiction. As the ICJ stated in the Cumaraswamy advisory opinion, [The Secretary-General’s] finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by 74 75 76 77

See n 25. ibid. A Reinisch, Commentary on Art. II Section 2 General Convention, MN 83–6. Case unpublished, cited in E Kwakwa (n 16), at 389. BURCI

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national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information.78

51

In practice, agencies are confronted with a variety of possible scenarios. While courts occasionally recognize ex officio the immunities of a Specialized Agency and national governments frequently honour their obligation to notify the courts of the applicable immunity, that is not always the case and the Specialized Agency concerned may have to enter an appearance before the court to raise its lack of jurisdiction and seek the dismissal of the case. Thus, for example, in a note verbale of 24 January 2012 addressed to the head of the WHO country office, the Ministry of Foreign Affairs of a member State advised that WHO may claim immunity in court through its lawyers; the note added that ‘the Ministry of Foreign Affairs has not been pleaded in the case and therefore . . . has no locus standi . . . ’.79 ‘ . . . except insofar as in any particular case they have expressly waived their immunities ...’

52 As in the case of the corresponding provision of the General Convention,80 Art. III Section 4 Specialized Agencies Convention confirms the general principle that the holder of an immunity can dispose of it through its waiver. At the same time, it should not be forgotten that the immunities enjoyed by international organizations have been granted for the protection of international functions to be exercised in the interest of its members besides those of the organization as such. Consequently, it is not surprising that most of the international instruments on the immunities of international organizations, including the General and Specialized Agencies Convention, impose some conditions that narrow the scope of any waiver. The two main conditions emerging from the language of the provision in question is that a waiver cannot be implied from the behaviour of a Specialized Agency or from the circumstances surrounding a specific legal process but must consist of an express affirmative action by the agency concerned; and that a waiver should be limited to a particular instance of legal process rather than being given in general terms in advance. However, the consequences, for instance of a general waiver given in advance—for example, in a contract or agreement—are not as clear. The formulation of Art. III Section 4 Specialized Agencies Convention could point to the invalidity of an implied or general waiver, but the author of this chapter has been unable to find court cases or practice supporting such conclusion. On the contrary, the Specialized Agencies and other international organizations are careful to include in their contracts and agreements clauses excluding any waiver of their immunities under their terms.81 Similarly, a standard contractual clause—at least in the practice of WHO—excludes the submission of the contract or agreement to any national law in order to avoid the possibility of a

78 See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, (1999) ICJ Rep 62, at 87, para 61. 79 On file with the author. 80 See A Reinisch, Commentary on Art. II Section 2 General Convention, MN 94–103. 81 One of the standard clauses used by WHO eg reads as follows: ‘Nothing in or relating to this Agreement shall be deemed a waiver of any of the privileges and immunities of WHO in conformity with the Convention on the Privileges and Immunities of the Specialized Agencies approved by the General Assembly of the United Nations on November 21, 1947 or otherwise under any national or international law, convention or agreement’ (on file with the author).

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blanket choice of law clause being interpreted as including or implying the acceptance of the jurisdiction of the State whose law would be incorporated by reference. WHO’s contracts, for example, typically contain the following clause: ‘Any matter relating to the interpretation or application of this Agreement which is not covered by its terms shall be resolved by reference to the law of [ . . . ].’ As a matter of principle and as an additional safeguard, the law of reference should be of a State that has acceded to the Specialized Agencies Convention with regard to WHO, for example, Switzerland or the UK. The available jurisprudence shows that courts are generally firm in requiring an express 53 waiver from a Specialized Agency as a condition for confirming jurisdiction and instituting proceedings, and that a waiver could not be inferred from either the behaviour of the agency or of other actors or the terms of the underlying transaction. In the aforementioned Ochani case,82 the High Court of Delhi observed that the mere fact that the Government of India requested WHO to co-operate and assist the High Court cannot constitute a waiver of WHO’s immunity. In a ruling issued with regard to an alleged breach of contract for the procurement of security services, a local High Court in a member State of WHO rejected the claim that a contractual clause granting either party the right to seek interlocutory relief pending the institution of proceedings constituted a waiver of WHO’s immunity. The Court argued that the provision of arbitration as the sole proceedings allowed under the contract confirmed the lack of a waiver of immunity. A recent development in the contractual practice of international organizations that 54 raises concerns in terms of its implications for their immunities consists of the procurement of on-line services or the use of social media or web tools and platforms. The range of services includes Twitter, Facebook, YouTube, Google Maps, and RSS-Feeds. The pervasiveness of such on-line services and platforms, their ease of use, and the need to reach out to a broader audience through social media has led international organizations and even individual officials in the course of their functions to use and procure them as a matter of course and without always being aware of possible legal risks. In most cases, the very act of using the services constitutes acceptance of terms and conditions that typically include the application of national or local laws (in several cases the laws of California) and the acceptance of national or local jurisdiction.83 In many cases, the providers of the services in question do not seem inclined to negotiate special conditions for international organizations and have not reacted to written communications qualifying the acceptance of contractual terms to the respect of their immunity. Even though there is no evidence of litigation arising from the services in question for the time being, their widespread and massive use and the unco-ordinated manner in which they are being procured raise

82

See n 25. By way of example, Google’s terms and conditions read in relevant part as follows: ‘The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or State courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.’ Available at , last accessed 5 January 2015. The terms and conditions of YouTube contain the following clause: ‘14.6 The Terms, and your relationship with YouTube under the Terms, shall be governed by English law. You and YouTube agree to submit to the exclusive jurisdiction of the courts of England to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that YouTube shall still be allowed to apply for injunctive remedies (or other equivalent types of urgent legal remedy) in any jurisdiction.’ Available at last accessed 5 January 2015. 83

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questions and uncertainties as to whether the Specialized Agencies could successfully assert their immunity. 55 Art. III Section 4 Specialized Agencies Convention is silent as to the authority competent to waive the immunity of the Specialized Agencies. The consistent practice points to the executive heads of the agencies as the competent authorities. In the case of WHO, however, the Director-General has delegated to regional directors the authority to waive the immunities of officials. In the case of the ILO International Training Centre in Turin, Italy, authority to waive immunities rests with the Director pursuant to the Complementary Agreement on the privileges and immunities of the Centre.84 ‘ . . . It is, however, understood that no waiver of immunity shall extend to any measure of execution.’ 56 As in the case of Art. II Section 2 General Convention, the language of the final part of Art. III Section 4 Specialized Agencies Convention is not free from ambiguity. The construction of the phrase could be interpreted as a reminder that a waiver of immunity from execution cannot be implied but must be express and separate from a waiver of immunity from jurisdiction. As noted in the commentary to the General Convention with regard to the UN,85 though, the most plausible interpretation from the point of view of the Specialized Agencies is that the Convention simply excludes the possibility of a waiver of immunity from execution. 57 This conclusion seems unfair from the point of view of a successful claimant that may be confronted with the impossibility of enforcing a judgment. At the same time, it falls within the same considerations of legal policy that may explain the conditions necessary for a valid waiver: the funds and assets of an international organization are owned and used by it for the implementation of its constitutional mandate and not in its own exclusive interest. It would run counter to the interests and functions pursued by the organization if the discharge of its activities could be impeded by the forcible execution of legal judgments on its funds, properties, and assets. Instituting this ultimate legal protection over the resources necessary for the life of the organization, even against a decision by the organization itself to waive its immunity from execution, seems consistent with the functionalist approach that inspired the establishment of the UN system. The inability of a third party to execute a judgment is counterbalanced by the requirement under Art. IX Section 31 Specialized Agencies Convention to provide alternative modes of dispute settlement,86 and by the possibility for the national State of the successful claimant to invoke an abuse of privilege under Art. VII Section 24 of the Convention.87 58 There does not seem to be any jurisprudence on waivers of immunity from execution. In practice, the Specialized Agencies such as WHO are careful in wording their waivers by specifying that the latter only apply to adjudicatory jurisdiction. The lack of case law leave uncertain the consequences by a Specialized Agency of a waiver of its immunity from execution, in particular whether it should be considered invalid and null and void, or Report from the Legal Adviser of ILO (on file with author). See A Reinisch, Commentary on Art. II Section 2 General Convention, MN 105ff. 86 See K Schmalenbach, Commentary on Art. IX Section 31 Specialized Agencies Convention for further reference. 87 See C Ryngaert and S Barros, Commentary on Art. VII Section 24 Specialized Agencies Convention for further reference. 84 85

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simply unlawful and engaging the accountability of the executive head vis-à-vis the oversight bodies of his/her organization. Finally, it should be underlined that the absolute immunity of Specialized Agencies 59 from execution is not always respected. Countries that are inclined to exercise jurisdiction over international organizations, either as a policy or in specific cases, would probably also allow the execution of a judgment in case the organization concerned does not voluntarily comply. Besides some of the early cases in Italy against FAO (see supra MN 42ff ), a more recent case concerned the office of the ILO in Madrid. A former consultant of the organization sued the ILO in labour court alleging improper termination of his employment. Simultaneously, he filed an appeal with the ILO Administrative Tribunal which eventually dismissed the case.88 The Labour Court of Madrid on 16 January 2006 passed a judgment against the ILO, arguing succinctly by analogy with State immunity that the ILO’s immunities under the Specialized Agencies Convention did not apply to labour relations. The judgment and the possibility of its execution were confirmed by the High Court of Justice of Madrid in 2009, once again dismissing the ILO’s immunities and authorizing execution on the assets not protected by its immunities such as those unequivocally destined to the performance of economic activities. The ILO’s assets in a Madrid bank were eventually seized in the amount of almost 43,000 EUR notwithstanding numerous communications from the ILO to the Ministry of Foreign Affairs invoking its immunities from jurisdiction and execution.89

E. Conclusion This review of the interpretation and implementation of Art. III Section 4 Specialized 60 Agencies Convention confirms the initial observation above about the fragmentation of the legal regime providing immunity from legal process to the Specialized Agencies, which relies on a mix of multilateral and bilateral agreements as well as national legislation and regulations. The Specialized Agencies Convention, based on the findings summarized here, plays a 61 more or less prominent role in the countries that have acceded to it, depending on the other applicable legal instruments and the characteristics of the national legal system concerned. The available case law points to a generally complementary or default role for the Specialized Agencies Convention, which is mentioned as the source of the immunity from legal process together with other instruments (as in the Ochani v WHO90 and Entico v UNESCO91 cases) or when no other instruments are applicable (as in the United States Lines v WHO case).92 As noted above, moreover, the substantive scope of Art. III Section 4 Specialized Agencies Convention is indirectly applicable by the fact that its language (and that of the corresponding provision in the General Convention) has been used more or less unchanged in many host agreements with the Specialized Agencies.

88

J. B. v. International Labour Organization (ILO), ILOAT Judgment 2797, 4 February 2009. Babe Nunez v International Labour Organization, Juzgado de lo Social. Número 21—Ayuntamiento de Madrid, 16 January 2006 (on file with author together with a written report from the Legal Counsel of the ILO). 90 See n 25. 91 See n 28. 92 See n 19. 89

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62

The available case law also shows that the general attitude of courts has been to accept the absolute nature of the immunity of the Specialized Agencies. The main example of a restrictive interpretation of the functional immunity of a Specialized Agency based on an analogy with sovereign immunities has been later overcome in the case of FAO’s immunity in Italian courts. Also the limitation of immunities of international organizations to safeguard the right of access to justice of officials or third parties does not seem to have had a significant impact on the Specialized Agencies, arguably in view of the developed and credible mechanisms for dispute settlement customarily envisaged under their rules. 63 It appears that, when Specialized Agencies have experienced problems in asserting their absolute immunity from legal process, those difficulties arose from the attitude of governmental authorities (eg with regard to the role to be played by ministries of foreign affairs in seeking the dismissal of cases), from erroneous interpretations occasionally given by courts (eg in the International Centre for Advanced Technical and Vocational Training (International Labour Organization) v Tirone Rosangela et al case)93 or from the failure of the Specialized Agencies to properly assert their immunities in a timely manner, rather than from systemic issues about the nature and scope of the immunity.

93

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B I N V I O L A B I L I T Y OF PR E M I S E S

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Inviolability of Premises (Article II Section 3 General Convention) Lance Bartholomeusz ARTICLE II PROPERTY, FUNDS, AND ASSETS SECTION 3. The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.

A. Introduction Art. II Section 3 General Convention is essential to the operations of the UN and 1 vouchsafes its autonomy, its independence, and its ‘privacy’.1 Art. III Section 5 Specialized Agencies Convention contains a provision identical to Art. II Section 3.2 Under the Vienna Convention on Diplomatic Relations (VCDR) ‘(t)he premises of the mission shall be inviolable’.3 While somewhat different in origin, the principles on diplomatic inviolability are widely recognized as applicable to the premises of international organizations.4 Inviolability of premises is a concept that is fundamental to ‘such privileges and 2 immunities as are necessary for the fulfilment of [the United Nations’] purposes’ under Art. 105 of the UN Charter. The relevant drafting committee of what would become Art. 105 of the UN Charter considered it ‘superfluous’ to specifically list ‘inviolability of buildings [and] property’ as an immunity, respect for which the draft article would impose on member States.5 Inviolability of premises can be seen therefore as an obligation on 1

UNGA Res 68/101, 13 Dec 2013, UN-Doc. A/RES/68/101, op para 3 (‘Strongly urges all States . . . to respect and ensure respect for the inviolability of United Nations premises, which are essential to the continuation and successful implementation of United Nations operations’); Fourth report on relations between States and international organizations (second part of the topic) by Mr Leonardo Diaz Gonzalez, Special Rapporteur, Yearbook of the International Law Commission (1989), Vol. I Part 2, 164, para 88. 2 See R Pavoni, Commentary on Art. III Section 5 Specialized Agencies Convention for further reference. 3 Art. 22(1) 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95 (‘1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’). Consular premises have a more limited inviolability than diplomatic mission premises, see eg Art. 31 1963 Vienna Convention on Consular Relations, 596 UNTS 261. 4 Fourth report on relations between States and international organizations (n 1), at 163–5, especially paras 89, 100 (‘The legal literature is almost unanimous in recognizing that all the principles on diplomatic inviolability are applicable to the premises of international organizations. The practice followed by States confirms this.’). 5 See report of the Rapporteur of Committee IV/2 of the Conference of the United Nations at San Francisco, as approved by the Committee, presented to the Commission on Judicial Organization and provided to the Delegates, UNCIO Doc. PC/LEG/22 of 22 Dec 1945, 3–4 (‘The draft article proposed by the BARTHOLOMEUSZ

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members of the UN flowing from the UN Charter. Inviolability also underpins the humanitarian principle of operational independence.6 Inviolability is a concept that also underpins other sections of the General Convention relating to the UN archives and documents and the papers and documents of representatives of experts on mission for the UN.7 The principle of inviolability is embodied in almost all the legal instruments relating to privileges and immunities of international organizations.8 3 Inviolability does not depend on an assumed fiction of extraterritoriality.9 It is simply an immunity derived from treaty law obligations on the Parties to the General Convention and inherent in the privileges and immunities necessary for the fulfillment of the purposes of the UN set out in its Charter.

B. History and Drafting of the Provision 4 An important antecedent of Art. II Section 3 General Convention was in the Covenant of the League of Nations, which addressed the inviolability of League premises as follows: The buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable.10

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Art. II Section 3 General Convention changed only slightly during the drafting process. In the Report of the Preparatory Commission of the United Nations the draft of what would become Art. II Section 3 provided that The premises of the Organization shall be inviolable. The property and assets of the Organization wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and from any other seizure whether by executive, administrative or legislative action or otherwise.11 Committee does not specify the privileges and immunities respect for which it imposes on the member States. This has been thought superfluous. The terms privileges and immunities indicate in a general way all that could be considered necessary to the realization of the purposes of the Organization, to the free functioning of its organs and to the independent exercise of the functions and duties of their officials: exemption from tax, immunity from jurisdiction, facilities for communication, inviolability of buildings, properties, and archives, etc.’). 6 Operational independence is one of four humanitarian principles. See UNGA Res 58/114, 17 December 2004, preambular paras 4 and 5; UNOCHA, OCHA on Message: Humanitarian Principles, April 2010, available at last accessed 9 December 2015. 7 Art. II Section 4 General Convention; Art. IV Section 11(b) General Convention; Art. VI Section 22(c) General Convention. See G L Burci, Commentary on Art. II Section 4 General Convention; U Kriebaum, Commentary on Art. IV Section 11(b) General Convention; R Bandyopadhyay and T Iwata, Commentary on Art. VI Section 22(c) General Convention for further reference. 8 ILC Yearbook 1989 (n 1), at 164, paras 90–1. 9 ibid. para 105. See also R Pavoni, Commentary on Art. III Section 5 Specialized Agencies Convention, MN 12ff. 10 Art. 7(5) Covenant of the League of Nations, LNJ, 1920, at 3. The modus vivendi of 1926 dealt with inviolability of premises in Part II (Communications du Conseil fédéral Suisse concernant le régime des immunités diplomatiques du personnel de la Société des Nations et du Bureau international du Travail), Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations, Vol. II, United Nations Legislative Series, UN-Doc. ST/LEG/SER.B/11, p 134. For relevant drafting history and antecedents, see further A Miller, ‘The Privileges and Immunities of the United Nations’, (2009) 6 International Organizations Law Review 7–115, at 10–11, 42. 11 See Report of the Preparatory Commission of the United Nations, UN-Doc. PC/20, 23 Dec 1945, Ch VII, Appendix B (‘Draft Convention on Privileges and Immunities’), 72, Art. 2(2). The provision was the

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This provision was based closely on a provision in the constitutive documents of the IMF and IBRD, with the addition of references to inviolability of premises found in the constitutive documents of UNRRA, FAO, and the European Central Inland Transport Organization.12 The proposal was also based on text proposed in a 1945 memorandum from the ILO Secretariat that was known to the members of the Preparatory Commission.13 After considering the Preparatory Commission’s report, the Sixth Committee proposed 6 a provision that changed the word ‘seizure’ to ‘interference’ and added the term ‘judicial’ after ‘administrative’.14 The effect was to slightly broaden the scope of the provision. The Sixth Committee’s proposal for Art. II Section 3 was adopted by the General Assembly.15

C. Key Elements The immunities granted by Art. II Section 3 are in two related but distinct parts. The first 7 accords inviolability to UN premises. The second part is complementary: it elaborates on the immunity from interference enjoyed by the UN, and applies more broadly than premises to encompass property and assets of the UN.16 ‘The premises of the United Nations . . .’ The ‘premises of the United Nations’ refer to buildings occupied in whole or in part by 8 the UN, and areas under its control.17 It does not matter whether the premises are owned or rented by the UN.18 If a building is shared by both the UN and another entity, only

same in earlier documents: see UNCIO-Doc. PC/LEG/17, 30 Nov 1945, 3 (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); UN-Doc. PC/LEG/34, 8 Dec 1945, 4 (Committee 5, Sub-Committee on Privileges and Immunities, Draft recommendation on Privileges and Immunities); UNCIO-Doc. PC/LEG/42, 4 (Committee 5, Recommendation on Privileges and Immunities). 12 See Report of the Preparatory Commission of the United Nations, UNCIO-Doc. PC/20, 23 Dec 1945, Ch VII, Annex to Study on Privileges and Immunities, 64–5, para 11 (‘International Monetary Fund’ (Article IX—Section 4) and ‘International Bank for Reconstruction and Development’ (Article VII—Section 4): ‘Property and assets of the Fund/Bank, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation, or any other form of seizure by executive or legislative action.’) and paras 12–14. 13 See Art. 3(2) (‘The Members of the Organization should accord to the property and assets of the Organization, wherever located and by whomsoever held, immunity from search, requisition, confiscation, expropriation or any other form of seizure by executive action whether under legislation or otherwise.’) See General Note: Third Item on the Agenda: The Status, Immunities and Other Facilities to be Accorded to the International Labour Organisation, ILO Official Bulletin, Vol. XXVII, No. 2, 10 December 1945, 197–223. As to the significance of the ILO memorandum, see A Miller (n 10), at 17. 14 Report of the Sixth Committee to the General Assembly, Annex 22, Privileges and Immunities of the United Nations, UN-Doc. A/43/Rev.1, A/43/Rev.1/Corr.1, A/43.Rev.1/Corr.2, A/43/Corr.1. 15 See UN-Doc. A/C.6/28, 5 Feb 1946, 2; UNGA Res 22(I) of 13 February 1946. 16 Compare C W Jenks, International Immunities (Oceana 1961) 53 (‘The protection for property and assets conferred by these provisions, while closely related to inviolability, is in reality distinct from inviolability and gives a much wider protection in respect of property rights.’). 17 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—Extract from the Yearbook of the International Law Commission 1967 Vol. II (UN-Doc. A/CN.4/L.118) (hereinafter: UN Secretariat Study 1967) 227, para 90. 18 ibid. at para 91. See also (1965) UNJYB 219–20.

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those parts used exclusively by the UN are ‘premises of the United Nations’ considered inviolable.19 A parallel may be drawn with the definition of the term ‘premises’ contained in Art. 1(i) VCDR.20 9 UN premises fly the UN flag and usually bear distinctive markings.21 UN practice is to communicate the location of UN premises to host authorities, either through a procedure established in a bilateral agreement or on an ad hoc basis.22 In situations of armed conflict the UN has communicated the GPS co-ordinates of its installations to the concerned parties in order to ensure respect for their inviolability during the conduct of hostilities.23 While such notification and distinctive marking of UN premises promote their inviolability, they are not preconditions for the enjoyment of inviolability under the General Convention. Bilateral agreements may require immediate notification.24 10 Ordinarily inviolability of UN premises commences when it occupies them and ceases upon their vacation. Thus, a practice of the UN is to send an official notification to the authorities of the host country when it occupies or vacates certain premises.25 11 The UN may lease part of its premises to contractors, with or without fee, to perform services for the UN, its officials, or representatives, for example cafeterias and banking services at major UN duty stations, and canteens at UNRWA schools.26 Where the UN retains control of the leased space, and the lease’s purposes are for the UN, there will be no impact on the inviolability of the premises. The contractors would of course have to observe local law. If the UN were to sub-lease space to a private concern for business unrelated to the UN, that leased space would no longer be inviolable.27

19 See A S Muller, International Organizations and their Host States: Aspects of their Legal Relationship (Kluwer Law International 1995) 187–8 (‘the supplemental agreements to the UN–USA host agreement exclude the “stairways and elevators giving public access to other floors” from the addition to the UN premises effectuated by these agreements’.). 20 See Yearbook of the International Law Commission (1990) Vol. II Part Two, Chapter VI, Relations between States and International Organizations (Second part of the topic), para 433. For a commentary on the definition of ‘premises’ under the VCDR, see E Denza, Diplomatic Law (3rd edn, OUP 2008) 20–3. 21 See para 4(1)(a) of the United Nations Flag Code and Regulations, UN-Doc. ST/SGB/132, as amended on 11 November 1951 and 1 January 1967, respectively (‘The flag shall be flown . . . from all buildings, offices and other premises occupied by the United Nations.’). 22 See ILC Yearbook 1989 (n 1), at 165, para 102 (‘The agreement concluded between the United Nations and the United States in 1966, following the acquisition by the United Nations of premises outside the Headquarters district as originally defined, established the obligatory nature of notification both when the premises begin and when they cease to be occupied.’). 23 See ‘A Historic Moment: UNRWA Commissioner-General briefing to the UN Security Council’, 31 July 2014, available at last accessed 20 February 2015. Letter of 4 May 2009 from the Secretary-General addressed to the President of the Security Council, UNDoc. A/63/855, S/2009/250, 15 May 2009, paras 5, 19, 29, 46, 57, and 70. 24 See ILC Yearbook 1989 (n 1), at 165, para 102. 25 ibid. para 101. See also A S Muller (n 19), Chapter 4, Section 2.3. 26 A S Muller (n 19), at 101. 27 This opinion is expressed in A Miller (n 10), at 45. In an advice on the use of a portion of UNCTAD premises by two NGOs, the UN Office of Legal Affairs was of the view that such use was ‘incompatible with the status of the United Nations and its privileges and immunities’ and such commingling would jeopardize or at least confuse that status. See (2005) UNJYB 450–5. See also a 1969 European Council of Ministers Report of the Sub-Committee on Privileges and Immunities of International Organizations of the European Committee on Legal Cooperation, which agreed that ‘for the purpose of inviolability “premises” should be understood to include the land, buildings and parts of buildings, by whomsoever owned, used exclusively for the exercise of the official functions of the Organization’ (emphasis added): EU-Doc. Addendum to CM (69) 92. See also A S Muller (n 19), at 187–8.

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Where, owing to security reasons such as the conduct of hostilities, the UN abandons 12 premises, or they become inaccessible, the continued inviolability enjoyed by the premises must be assessed on a case-by-case basis.28 Ultimately, in such circumstances, it will be for the UN to authoritatively determine whether its premises remain inviolable or not.29 During the hostilities in the Gaza Strip in July and August 2014 the UN informed Israel that owing to declarations of ‘no-go’ zones and evacuation warnings by the former, the UN would no longer have control of its premises in the relevant areas but expected the parties to respect and ensure respect for the inviolability of its premises.30 During the same hostilities the UN discovered weapons components in three UN schools during its own routine inspections. The schools were not in use as either shelter for displaced persons or as schools at the time but had not been abandoned. The UN condemned the placement of such weapons components as a breach of inviolability of UN premises.31 During the brief June 1967 hostilities, UNRWA lost control of its field office compound in Jerusalem during fighting between the Israeli and Jordanian sides. Notwithstanding the temporary loss of control, the UN claimed compensation from Jordan and Israel based on the breach of inviolability of UN premises.32 ‘ . . . shall be inviolable’ Art. II Section 3 General Convention lays down, but is not limited to, the classic principle 13 that UN premises may not be entered by a State’s officials without the UN consent and that the UN must itself be permitted to control activities occurring on those premises unless it requests the local authorities to intervene.33 Inviolability of the premises also obliges the State to afford active protection of the premises from any threat or disturbance from the outside that might affect them.34 The classical conception of inviolability has been expanded by both contemporary UN and diplomatic practice, notably to include strikes by military ordnance on or affecting premises (see MN 16). Art. II Section 3

28 See further L Bartholomeusz, ‘The Legal Framework for Protection of UN Humanitarian Premises During Armed Conflict’, (2014) 18 Max Planck Yearbook of United Nations Law, 68–108. 29 By way of analogy the position of the UN is that it is for the Secretary-General to determine whether an official’s acts are performed in his or her official capacity or not; see R Bandyopadhyay and T Iwata, Commentary on Art. V Section 18(a) General Convention. If it were otherwise, and States could ultimately authoritatively determine whether inviolability applied or not, the operational independence of the UN would be left to the subjective interpretation and whim of States and therefore undermined. In case of a request for an opinion in accordance with Art. VIII Section 30 General Convention, the ICJ’s opinion would be decisive for the parties to the difference. 30 Letter from UNRWA to Israeli Defense Forces, 1 August 2014 (on file with the author). 31 See Statement of the Commissioner-General of UNRWA, 3 August 2014, available at