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World Court Digest



I. Substantive International Law - First Part
7. LAW OF TREATIES
7.9. Specific Treaties
7.9.1. Convention on the Privileges and Immunities
of the United Nations of 1946

¤ Applicability of Article VI, Section 22,
of the Convention on the Privileges and
Immunities of the United Nations,
Advisory Opinion of 15 December 1989
I.C.J. Reports 1989, p. 177

[pp. 193-196] The Court will examine the applicability of Section 22 1 ratione personae, ratione temporis and ratione loci, that is to say it will consider first what is meant by "experts on missions" for the purposes of Section 22, and then the meaning to be attached to the expression "period of [the] missions", before considering the position of experts in their relations with the States of which they are nationals or on the territory of which they reside.
The General Convention gives no definition of "experts on missions". All it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organization, even if chosen in consideration of their technical expertise in a particular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, however, furnish any indication of the nature, duration or place of these missions.
Nor is there really any guidance in this respect to be found in the travaux préparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition.
The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them "such privileges and immunities as are necessary for the independent exercise of their functions". The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.
In practice, according to the information supplied by the Secretary-General, the United Nations has had occasion to entrust missions - increasingly varied in nature - to persons not having the status of United Nations officials. Such persons have been entrusted with mediation, with preparing reports, preparing studies, conducting investigations or finding and establishing facts. They have participated in certain peace-keeping forces, technical assistance work, and a multitude of other activities. In addition, many committees, commissions or similar bodies whose members serve, not as representatives of States, but in a personal capacity, have been set up within the Organization; for example the International Law Commission, the Advisory Committee on Administrative and Budgetary Questions, the International Civil Service Commission, the Human Rights Committee established for the implementation of the International Covenant on Civil and Political Rights, and various other committees of the same nature, such as the Committee on the Elimination of Racial Discrimination or the Committee on the Elimination of All Forms of Discrimination Against Women. In all these cases, the practice of the United Nations shows that the persons so appointed, and in particular the members of these committees and commissions, have been regarded as experts on missions within the meaning of Section 22.
According to that Section, experts enjoy the privileges and immunities therein provided for "during the period of their missions, including the time spent on journeys". The question thus arises whether experts are covered by Section 22 only during missions requiring travel or whether they are also covered when there is no such travel or apart from such travel. To answer this question, it is necessary to determine the meaning of the word "mission" in French and "mission" in English, the two languages in which the General Convention was adopted. Initially, in keeping with its Latin derivation, the word referred to a task entrusted to a person only if that person was sent somewhere to perform it. It implied a journey. The same connotation is apparent in the words, of the same derivation, "emissary", "missionary" and "missive". The French word "mission"; and the English word "mission", have however long since acquired a broader meaning and nowadays embrace in general the tasks entrusted to a person, whether or not those tasks involve travel.
The Court considers that Section 22, in its reference to experts performing missions for the United Nations, uses the word "mission" in a general sense. While some experts have necessarily to travel in order to perform their tasks, others can perform them without having to travel. In either case, the intent of Section 22 is to ensure the independence of such experts in the interests of the Organization by according them the privileges and immunities necessary for the purpose. In some cases these privileges and immunities are designed to facilitate the travel of experts and their stay abroad, for instance those concerning seizure or searching of personal baggage. In other cases, however, they are of a far more general nature, particularly with respect to communications with the United Nations or the inviolability of papers and documents. Accordingly, Section 22 is applicable to every expert on mission, whether or not he travels.
The question whether experts on missions can invoke these privileges and immunities against the States of which they are nationals or on the territory of which they reside has also been raised. In this connection, the Court notes that Section 15 of the General Convention provides that the terms of Article IV, Sections 11,12 and 13, relating to the representatives of Members "are not applicable as between a representative and the authorities of the State of which he is a national or of which he is or has been the representative". Article V, concerning officials of the Organization, and Article VI, concerning experts on missions for the United Nations, do not, however, contain any comparable rule. This difference of approach can readily be explained. The privileges and immunities of Articles V and VI are conferred with a view to ensuring the independence of international officials and experts in the interests of the Organization. This independence must be respected by all States including the State of nationality and the State of residence. Some States parties to the General Convention (Canada, the Lao People's Democratic Republic, Nepal, Thailand, Turkey and the United States of America) have indeed entered reservations to certain provisions of Article V, or of Article VI itself (Mexico and the United States of America), as regards their nationals or persons habitually resident on their territory. The very fact that it was felt necessary to make such reservations confirms the conclusion that, in the absence of such reservations, experts on missions enjoy the privileges and immunities provided for under the Convention in their relations with the States of which they are nationals or on the territory of which they reside.
To sum up, the Court takes the view that Section 22 of the General Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions. During the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel. They may be invoked as against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State.

[pp. 196-197] The members of the Sub-Commission, since their status is neither that of a representative of a member State nor that of a United Nations official, and since they perform independently for the United Nations functions contemplated in the remit of the Sub-Commission, must be regarded as experts on missions within the meaning of Section 22.
In accordance with the practice followed by many United Nations bodies, the Sub-Commission has from time to time appointed rapporteurs or special rapporteurs with the task of studying specified subjects. These rapporteurs or special rapporteurs are normally selected from among members of the Sub-Commission. However, over the past ten years, special rapporteurs have, on at least three occasions, been appointed from outside the Sub-Commission. Furthermore, in numerous cases, special rapporteurs appointed from among members of the Sub-Commission have completed their reports only after their membership of the Sub-Commission had expired. In any event, rapporteurs or special rapporteurs are entrusted by the Sub-Commission with a research mission. Their functions are diverse, since they have to compile, analyse and check the existing documentation on the problem to be studied, prepare a report making appropriate recommendations, and present the report to the Sub-Commission. Since their status is neither that of a representative of a member State nor that of a United Nations official, and since they carry out such research independently for the United Nations, they must be regarded as experts on missions within the meaning of Section 22, even in the event that they are not, or are no longer, members of the Sub-Commission. Consequently they enjoy, in accordance with Section 22, the privileges and immunities necessary for the exercise of their functions, and in particular for the establishment of any contacts which may be useful for the preparation, the drafting and the presentation of their reports to the Sub-Commission.

[pp. 210-211 S.O. Evensen] It seems obvious that the protection provided for in Article VI, Section 22, of the 1946 Convention cannot be confined only to the "expert Mazilu" but must apply to a reasonable extent to his family. This seems self-evident and has been touched upon in one special relation in Article V, Section 18 (d), of the Convention. It states that officials of the United Nations shall "be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration".
The integrity of a person's family and family life is a basic human right protected by prevailing principles of international law which derive not only from conventional international law or customary international law but from "general principles of law recognized by civilized nations".
Thus in the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948 the integrity of family and family life was laid down as a basic human right in Article 16, paragraph 3, as follows: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." This principle, which is a concrete expression of an established principle of human rights in the modern law of nations, has been similarly expressed in other international law instruments. Thus the European Convention on Human Rights (the Rome Convention) of 4 November 1950 provides in Article 8, paragraph 1: "Everyone has the right to respect for his private and family life, his home and his correspondence."
The respect for a person's family and family life must be considered as integral parts of the "privileges and immunities" that are necessary for "the independent exercise of their functions" under Article VI, Section 22, of the 1946 Convention on the Privileges and Immunities of the United Nations.

1

Section 22 provides as follows:

"Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded:

(a) immunity from personal arrest or detention and from seizure of their personal baggage;
(b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations;
(c) inviolability for all papers and documents;
(d) for the purpose of their communications with the United Nations, the right to use codes and to receive papers or correspondence by courier or in sealed bags;
(e) he same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;
(f) the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys."