Riassunto esame in inglese di "International Organizations", prof. Laura Carpaneto, libri consigliati "International Organizations" I.Hurd e "The Law and Practice of the United Nations" di Conforti e Focarelli

PRIVILEGE AND IMMUNITIES OF THE UN OFFICIALS

Privilege and immunity of the UN officials is a controversial subject, mostly because there do not

exist customary international rules which require states to grant the same treatment to the officers

and employees of IOs.

Diplomatic privileges and immunity (personal inviolability, exemption from civil and criminal

agents jurisdiction, tax exemptions) are granted under customary law

IOs immunity is granted by customary international law as well as by international

agreements

IO’s and UN it do not exist customary international rules which require states to grant

immunities and privileges to IO’s staff

staff “The

Art.105.2 Organization shall enjoy in the territory of each of its Members such privileges and

immunities as are necessary for the fulfilment of its purposes. Representatives of the Members of

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the UN and officials of the Organization shall similarly enjoy such privileges and immunities as are

necessary for the independent exercise of their functions in connection with the Organization. The

GA may make recommendations with a view to determining the details of the application of

paragraphs 1 and 2 of this art or may propose conventions to the Members of the UN for this

purpose”.

The previous article states the theory of implied powers but it would be much easier to recognize

this kind of immunity if all state would be members of the UN; however, states can also decide to

do not apply immunity at all.

There are a lot of international agreement of this issue:

 General Convention on the Privileges and Immunities of the UN 1946 (to which a large

number of States are party)

 Convention between UN and Switzerland 2002 (the main ratio is that a wide number of

offices of the UN have their seats in Switzerland)

In the absence of international agreements, there can arise problems of interpretations.

For it can be applied the general formula under art. 105.2. Representatives of the

member Members of the UN and officials of the Organization shall similarly enjoy such

states privileges and immunities as are necessary for the independent exercise of their

functions in connection with the Organization. It is difficult though to interpret and it

is not possible to extend all usual diplomatic immunities to UN officials

For Non- that are not bound by any treaty provision, there is no obligation (under customary

member law) to concede immunities and privileges.

states

Usually, treaty prevision on the immunity of the UN officials are of two types:

1) Describing in detail the kind of immunity and its scope→ Art. V of the General Convention,

states that “UN

section 18 officials shall:

a) be immune from legal process in respect of the words spoken or written and all acts

performed by them in their official capacity;

b) be exempt from taxation on the salaries and emoluments paid to them by the UN;

c) be immune from national service obligations;

d) be immune, together with their spouses and relatives dependent on them, from

immigration restrictions and alien registration…”

diplomatic immunity→

2) Referring to customary international law on Art. V of the General

Convention (section 19) providing that in addition to the immunities and privileges specified

in section 18 “the Secretary General and all Assistant Secretaries General, together with

their spouses and minor children, shall enjoy the privileges and immunities, exemptions and

facilities accorded to diplomatic envoys in accordance with international law”.

A state can also waive to privileges and immunities; in fact under art. V section 20

“Privileges and immunities are granted to officials in the interests of the UN and not for the

personal benefit of the individuals themselves. The Secretary-General shall have the right and the

duty to waive the immunity of any official in any case where, in his opinion, the immunity would

impede the course of justice and can be waived without prejudice to the interests of the UN.

In the case of the Secretary-General, the SC shall have the right to waive immunity”.

The protection of UN officials is a problem that has been arose after the attack, which took place

in 2003 on the Headquarter of the UN mission in Baghdad. Which protection do the UN granted in

case of attack against UN mission? It does exist a legislative framework:

 1994 Convention on the safety of UN and associated personnel (State parties shall

take all appropriate measures to ensure the safety and security of the UN and associated

personnel)

2005 Optional protocol (extending the convention to UN operation of humanitarian,

- political and development assistance for peace-building) ©Alice Mazzesi

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The most recent tendency states that attacks on UN personnel engaging in peacekeeping or peace

enforcement operations is seen as an «international crimes» (see art. 2 of the Statue of the ICC)

Nevertheless, there are no provision establishing a general duty to compensate either victims or

their relatives, or the UN.

Under international law and specifically under the branch of international law that concerns the

treatment of aliens, a state whose citizen has suffered injury abroad (either to his person or to his

property) has the right to act at international level against the State.

The general principle of the protection of aliens states that there are obligation existing:

towards the national State→ protection of citizen

a) towards the State of which the alien is an organ→ protection of the State function.

b)

It is not sure if the UN have a similar right with regard to its officials; the question had been

subjected to the ICJ for an advisory opinion in 1949 after the case Bernadotte.

So it can be said that there is no doubt that a duty to protect UN official exists:

 on member states, because the accepted the obligations arising from the Charter

Art. 2.5 MS shall give to the UN every assistance in any action it takes in accordance

- with the present Charter

Art. 105.2 privileges and immunities necessary for the independent exercise of their

- functions

 on non-member states, because they have agreed that a UN mission is present on their

territory

It can be asked if States have an obligation to protect the official as an individual.

The authors say that it does not exist the nationality link, which justifies the national State in acting

for the protection of individual interests; it would be contrary also to the ne bis in idem.

–

ECOSOC ECONOMIC AND SOCIAL COUNCIL

It is the main subsidiary organ created by the GA and it is competent in promoting international

cooperation in the social and economic field “under the authority of the GA”.

It is composed by 54 members who are elected for 3 years; its composition varied in the history:

1965→ from 18 to 27

1971→ from 27 to 54

14 from African States

- 11 from Asian States

- 10 from Latin American States

- 13 from Western European and other States

- 6 from the Socialist States of Eastern Europe

-

Each member has one vote and resolution are adopted by a majority of the members present and

voting since the voting procedures are the same of the GA. However, for the decision to be valid,

the majority of members of the ECOSOC must be present.

→

Art.69 state that ECOSOC shall invite any member of the UN to participate, without vote, in its

deliberations on any matter of particular concern to that Member; ECOSOC has no discretionary

power in this field.

→ and state that “The

Art. 71 is the only article in the charter that makes reference to the NGOs

ECOSOC may make suitable arrangements for consultation with NGOs which are concerned with

matters within its competence. Such arrangements may be made with international organizations

and, where appropriate, with national organizations after consultation with the Member of the UN

concerned.” In 1946 there were just 41 NGOs granted consultative status while recently there are

more than 3000. Procedure for the granting of the consultative status:

Specific ECOSOC committee on NGOs which has to make a recommendation

- ECOSOC decide

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In 1975 was created the UN Non-Governmental Liaison Service that is actually a bridge between

UN and NGOs

There are numerous subsidiary organs that have been set up by the SC over the years in

accordance with art.68 of the Charter of the United Nation; the most important are the functional

commissions and the regional commissions. A general rule state that all the UN organs operating

in the economic and social field, all organs competent in the field of development, may be

considered arranged in a hierarchy with the GA at the top and immediately below it the ECOSOC.

TRUSTEESHIP COUNCIL

It was a subsidiary organ of GA and SC based on the institute of trusteeship, consisting in a

colonial type of government of territories under the control of the UN. However, it do not exist since

1994 because of the end of colonization.

INTERNATIONAL COURT OF JUSTICE (ICJ)

Headquarter The Hague

Members 193 states parties

Mandate Settle interstate legal disputes with the consent of both parties

Key 15 international judges, elected in a personal capacity, provide definitive legal

structure judgments when requested by states

Enforcement A party that is unsatisfied with the performance of the losing party in a case may

refer the matter to the SC

The ICJ is the principal judicial organ of the UN and it was intended to settle legal disputes

between states. It is situated in The Hague such as the ICC mostly for a geographical reason.

Its organization is governed by a Statute annexed to the Charter of the United Nation.

The ICJ solve dispute just among states and not among persons or IOs.

Its main functions are: settling disputes among States by

1) Contentious jurisdiction→ applying international law (art. 38

Statute) all other organs of the UN can ask legal opinion to the ICJ something

2) Advisory under art.96→

but with the approval of the GA and within their aims. In 1996 the WHO asks to the court a

legal opinion on the legality of the use of nuclear weapons so it should be within its

competence; thus the ICJ says it was not.

It is composed by 15 judges, from every countries, that enjoy diplomatic privileges and immunities.

Judges are elected:

 considering personal capacity

 among persons of high moral character, possessing the qualifications required in their

respective countries for appointment of the highest judicial offices or are jureconsults of

recognized competence in international law

for 9 years (possible re-election)

-

The ICJ is just competent to settle cases that involved:

a) a legal disputes which is

b) between states who

c) consent to the jurisdiction of the ICJ

There are issues concerning the expression of consent of states in the ICJ, because states have

to accept expressly the jurisdi