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 |
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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.
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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."
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