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Privileges and immunities of international organizations and their personnel

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Privileges and immunities of international organizations and their personnel

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Content PRIVILEGES AND 11'™1.JNITIES OF INTERNATIONAL
ORGANIZATIONS AND THEIR PERSONNEL
by
Nouri Mahmoud Al-Kadhim
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements ror the Degree
DOCTOR OF PHILOSOPHY
(Political Science)
August 1957
This dissertation ) ritten by
Nouri M ahmoud Al-K adhim
under the direction ofh.is Guidan e C onZ1nittee
and approved by all its m emb e As has been pre sented to and accepted by th e J1'acu lty of th e
Graduate S cho ol) in partial f ulfillment of re
quirements for th e d gree of
DOCTOR O F PHILO OPHJ
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TABLE OF CONTENTS
CHAPI'ER PAGE
I. STATE:t1ENT OF THE PROBLEM, DEFINITIONS OF
TERMS USED, AND SURVEY OF LITERATURE.
• •
The Problem • •
• • • • • • • • • • • • •
Purpose and scope •••••••••••
Survey of the Literature •••••••••
Definitions of Terms Used.
• • • • • • •
International organizations.
International official ••••
• •
• •
• • •
• • •
The representative of a member-state to
1
1
3
5
1
7
7
an international organization~ • • • 7
I • HISTORICAL DEVELOPME NT OF THE THEORY AND
PRACTICE. •
• • • • • • • • • • • • • • •
8
Commissions for Navigation of the Rhine. 8
The European Danube Commission. • • • • • 11
The In·ternational Institute of Agricul-
tu.re.
• • • • • • • •
• • • • • • •
··r • PRIVILEGE AND IMMUNITIE OF THE LEAGUE
OF NATIONS AND ITS O FFICIALS •••
The Legal Status of the League of
• •
• •
• •
Nations ••••••••••••
• • • •
The Modus Vivendi of 1921 with
19
23
23
CHAPrER
Switzerland ••••••.••
The Modus Vivendi of 1926 •••
Privileges and Immunities of the
• • • •
• • • •
League's Officials ••••••.••••
First Category Officials not of Swiss
Nationality ••••••.••••••
Personal inviolability ••••••••
Immunity from jurisdiction ••
• • • •
Tax exemption ••••
Customs facilities ••
Visa facilities •••
• • • • • • • •
• • • • • • • •
• • • • • • • •
Privileges of the families of
• • • •
officials •••••••••
Second Category Officials not of
Swiss Nationality • • • • • • • •
Personal inviolability ••••••
• •
Tax exemption •••
• • • • • • • • •
Customs facilities ••••••••••
Visa facilities •••••••.•••
Families of Second Category officials
Some privileges of less importance ••
League Officials of wiss Nationality.
Tax exemption ••
• • • • • • • • • •
iv
PAGE
24
27
28
29
29
33
40
40
42
43
43
43
45
45
46
46
47
49
49
C Pl' R
Military service •••••••••••
mmunity from j risdiction ••••• ~
or sidency permits required ••••
Passport privileges •••••••••
IV. PRIVILEGES OF THE LEAGUE AND ITS OFF C ALS
IN OTHER COUNTRIES .
• • • • • • • • • • •
League Officials in Territories of
Member-States •
• • • • • • • •
• • • •
The League High Commissioners .
• • • •
V
PAGE
51
52
54
54
56
59
59
Commissions of nqu ry. • • • • • . • • 60
The astorn Epidemiological Intelli -
gence Bureau. • • • • • • . • • • • • 61
The Branch Offices •••
• • • • • • • •
61
nternational Institutes under League
Control. • • • • • • • • • • • • • • 62
The Lea ~ ue Special Agreements. • • • • 64
League Status in the Territories of
on-Member States ••••••
• • • •
The Case of the United States •
• • • •
The Caqe of Russia ••••••• : •••
Lea u Ofricials in Their Home Countries~
T X
Jur
xempti on • • • • • • • • • • • • •
diction 1 Immunities ••
• • •
65
66
68
69
70
71
vi
CHAPrER PAGE
Exemption from Military Service. • • • • 72
Travel Facilities for League Officials. • 73
Passports and Visas. • • • • • • • • • • 74
League Passport. • • • • • • • • • • • • 77
Lettre de Mission. • • • • • • • • • • • 79
Customs and Transportation Facilities. • 81
The Experience of the Permanent Court of
International Justice ••
• • • • • • • •
Judges and Officials not of Netherlands
Nationality ••••••••••••••
Judges and Registrar •••••
Other Court officials •••••
• • • •
• • • •
Judges and Officials of Netherlands
83
84
84
87
Nationality. • • • • • • • • • • • • • 90
V. PRIVIL GES AND IMMUNITIES OF THE UNITED
NATIONS •••
• • • • • • • • • • • • • • •
Legal Status of the United Nations ••••
The Case of Bernadotte ••
• • • • • • •
Privileges and Immunities of the
Organization ••••••••••••••
Inviolability ••••••••••••••
Tax Exemption ••••••••••••••
Freedom from Financial Control •• • 9 •
Freedom of Communications ••••
• • • •
93
93
95
99
100
103
104
105
vii
CHAPTER PAGE
Privileges and Immunities of the Officials 107
Immunity from Legal Process . • • • • • 109
Tax Exemption. • • • • • • • • • • • • 113
Military Service Obli gation. • • • . • 115
Customs Facilities .
Travel Facilities.
• • • • • • • •
• • • • • • • •
• •
• •
United Nations Laissez-Passer.
• • • •
United Nations Interest Distinguished
from Personal Benefit.
• • • • • • • •
The Case of Valentin A. Gubitchev.
• •
VI. STATUS OF THE UNITED -ATIONS AND ITS
OFFICIAL FUNC IONING OUTS DE THE UNITED
STATES OF AMERICA.
• • • • • • • • • • •
Status in Terri tori es of M ember-States.
•
The Uni tad Nations in France.
• • • • •
The Uni tad Nations in Egypt
• • • • • •
The United Nations in Other Member-
States •••••
• • • • • • • • • • •
Case of Interest •••
• • • • • • • • •
The United Nations Status in the Terri-
tori es of Non-Member-States
• • • • • •
Italy and the United Nations.
• • • • •
Israel.
• • • • • •
• • • • • • • • •
•
115
117
118
119
120
127
128
129
131
134
135
139
139
141
CHAPTER
VI.
Case of Interest.
• • • • • • • • • • •
The Case of the orean Employees of
nited ations Commission on Korea
taff • • • • • • • • • • • • • • •
The International Court of Justice ••
Article 19 of the Statute of the
• •
T -:,
C curt • • • • • • • • • • • • • • • •
rticle 42(3) of the Court Statute •••
Article 32(8) of the Statute ••••
• •
Resolution of the General Assembly on
the Privileges and Immuni es of
the Court ••••••••••
• • • •
The Status of the Court in the ether-
lands • • ,,
• • • • • • • • • • • • •
The tatus of the Court in Other
Countries •
• • • • • • • • • • • • •
PE'C AL ZED A ~ C ES .
• • • • • • • • •
viii
PAGE
142
146
148
150
150
151
153
158
Convention on rivileges and Immunities. 160
The International Labour Organ zation. • 164
Juridical ersonality and Immunity. • • 167
mmunity from Legal Process. • • • • • 169
Other Privileges and Immunities. • • • 170
Other Specialized A encies. • • • • • • • 173
CHAPI'ER
VIII.
I X.
I
The International Refugee Or aniza-
tion. • • • • •
• • • • • • • • •
• •
The International Monetary Fund
• •
• •
The International Bank for Reconstruc-
tion and Development.
• • • • • • • •
ER A TIO AL O -GOVERN
1
AL ORGA ZA-
0 ~ • • • • • • • • • •
• • • • • • • •
The Legal ettlement of isputes ••
• • •
International Non-Governmental Organiza
tions' rivileges Through the League
ix
PAGE
175
178
180
184
188
of Nations. • • • • • • • • • • • • • • 192
International on- overnmental Organiza-
tions' Privileges Through the United
Na t ions ••
• • • • • • • • • • • • • •
The Lea ue of Red Cross ocieties ••
• •
InternationaY Alliance of omen for
uffrage and Equal Citizenship •••••
Institute of International Law ••••••
196
201
205
208
R 'GIOl AL A . R GE 'lENTS • • • • •
• • • • • •
214
The Organization for European Economic
Cooperation ••••••••••••
The
1
uropean Coal and Steel Community
( C C) • • • • • • • • • • • • • • •
• •
216
• •
219
CHAPT
•
X
PAGE
The North Atlantic Treaty Organization. • 227
The League of Arab States. • • • • • • • 237
The Organization of American States •
INTERNATIONAL FUNCTIONARIES ••••••
• •
• •
Experts on Missions • • • • . • • • • • • 249
The Expert W orking Group on Inland
Water Transport from Asia and the
Far East. • • •
• • • • • • • • • • •
.
Permanent Central Opium Board.
• • • •
Commission of Inquiry on Cocoa Leaf ••
Advisory Council for omaliland ••••
Technical Assistance Appointees ••••
United Nations Tribunals . • • • • • ••
Representatives of the Press •••••••
The Problem of Access •••
• • •
• • •
The Problem of the Tax Status •
• • • •
Exchange Problem of Foreign Corre-
253
256
259
260
261
263
264
265
271
spondents. • • • • • • • • • • • • • 274
Problem of Administrative and Tech-
nical Facilities . • • • • • • • • • • 276
~I . CONCLUSIONS. • • • • • • • • • • • • • • • 285
BIBLIOGRAPHY • • • • • • • • • • • • • • • • • • • 296
APP NDIX I. The Provisional Modus Vivendi of
CHAPrER
1921 With the ~w i s s Federal
Council ••••••••
• • • • •
APPENDIX II. The Modus Vivendi of 1926 ith
the Swiss Federal Council ••
• •
APPENDIX III. General rinciples and Rules of
Application Regulating the
External tatus of the Members
or the Permanent Court of
APPENDIX IV.
APPENDIX V.
International J us t ice .
• • • • •
Convention on the Privi l e es and
Immunities of t he United ations.
Agreement Between the nited
Nations and the U nited States of
America Re ardi ng the Headquar-
xi
AGE
317
327
333
338
ters of the Uni t ed ations. • • • 347
APPENDIX vr.
Convention on the ri vileges and
Immunities of the pecialized
Agencies. • • . . . . . . • . • • 360
CHAPTER I
STATElv'.iENT OF THE PROBLEM, DEFINITIONS OF TERMS USED, AND
SURVEY OF LITERATURE
According to the rule of territorial supremacy one
of the basic principles of general international law
provides that a state rules supreme over all persons and
things within its territorial jurisdiction. One of the
few exceptions to this principle, however, is the special
status of diplomatic representatives. They, under interna
tional law, are granted certain privileges and immunities
from the jurisdiction of the state to which they are
accredited. Such privileges and immunities are regulated
by the operation of the principle of reciprocity, which is
as old as international law itself.
In recent years, however, the creation by govern ments of international organizations, with an international
rather than sovereign character, has developed an increas
ing concern, b ,, students and practitioners of international
law, with respect to the privileges and immunities for
these organizations.
I. THE PROBLEM
One of the major problems resulting from the recent
development of granting privile es and immun1t es for
2
international organizations and their personnel is that
which directly affects the states, especially the state
upon whose territory the organization located its head
quarters. It is obvious that national states are reluctant
to relinquish their control over persons, nationals and
aliens alike, who are affiliated with international organ
izations and who must be independent to function exclusive
ly in the international interest. Problems of public
welfare, justice, and national security may be involved
when a state exempts a group of individuals residing in,
and working on, its territory from the normal functioning
of its institutions. The problems become even more com
plicated when many of the individuals, requiring exemptions
from national jurisdiction, happen to be citizens of the
state on whose territory the international organization
operates .
As a consequence, a new and more complicated problem
has emerged. It stems from the efforts of the interna
tional organization to maximize privileges and immunities
by appropriate exemptions from local laws and authorities
i n order to maximize freedom and indeperrlence in its
international functions, and the desire of the state con
cerned to rninimize the loss of control and authority over
persons residing in,and working on, its territory. This
is one of the most practical and pressing problems of
i nternational organizations today and of the states upon
3
whose territory functions of the international organizations
are carried out.
Purpose_and scope. tis the purpose of this study
(1) to analyze, in detail, the specific privileges and immu
nities of international organizations and their personnel;
(2) to show the advantages and disadventages of experiences
under the League of Nations and their impact on the present
practices of the United ations and the pecialized Agencies.
While the granting of privileges and immunities to in
ternational organizations has had in the past, and still has,
the same reasons and is based on the same purposes, namely to
secure for them both legal and practical independence, so
that these international o ganizations shall be able to ful
fill their task, in recent years the standa~d has changed for
calculating the actions to be taken. The older principle,
as applied in the case of the European Danube Commission, was
formulated by reference to complete independence from the
territorial authority, and the benefits of neutrality. From
the beginning of the nineteenth century onward the principal
standard was that of diplomatic privileges and immunities.
The whole problem then developed historically as one of ex
tending diplomatic privileges and immunities to non-diplo
matic functionaries . Durin the period between the two orld
ars this standard also prevailed, according to Article VII,
4
paragraph 4, of the Covenant of the League of Nations.
This system, however, broke down when Switzerland attempted
to assimilate the status of officials of the League to that
of the various ranks of diplomatic envoys accredited to
t he Swiss Capital (Berne). The United Nations Charter
r evised this practice and adopted the "functional approach."
There are two important categories of individuals
who require a special legal status as a consequence of
thei r affiliation with international organizations, namely,
i nternational officials themselves and representatives of
member-states accredited to such international organiza
ti ons. For a clear understanding of the problem of estab
lishing privileges and immunities for such individuals, a
shar p distinction is made in this study between the status
and functions of representatives of member-states and the
sta t us and functions of international officials. The
s t atus and functions of an international official and of a
state representative to an international organization is
also distinguished from that of diplomatic representative
ac cr edited to a foreign government. Confusion of the
t hree types of officials can, and often does, lead to
serious misunderstanding in the minds of students of inter
nat ional orga izations.
The development of a suitable legal status for
orficials of, and representatives to, international organ-
5
izations represents a new trend. The legal basis for the
privileges and immunities of the international officials
rests entirely on conventional, or treaty, law. No provi
sions exist in international customary law for diplomatic
immunities of international officials. While the emphasis
of this study is on the status, privileges, and immunities
of the international officials, appropriate attention and
consideration is also given to international organizations
themselves.
II. URVEY OF THE LITERATUR ◄
M uch has been written in regard to the privileges
and immunities of diplomatic envoys accredited to foreign
states; but only a few authors have made studies of the
privileges and immunities of international organizations
and their personnel.
Hill, in his book Immunities and Privileges of
nt ernational Officials, The Experience of the League of
ations, concentrated attention mainly on experience under
the League of Nations. Only in a brief summary of his
work did he discuss the United Nations and some of the
spec ·alized agencies.
1
1
Martin Hill, Immunities and Privileges of Inte na
tional Officials, Th9 Experience of the League of Nations
( ashington, n.c.: Carnegie Endowment for International
Peace, 1947).
6
The extensive and authoritative study of Feller and
Hudson, A Collection of the Diplomatic and Consular Laws
and Regulations of Various Countrie.!_, is mainly concerned
with privileges and immunities of diplomatic missions
accredited to a foreign country. The same was found in
the Harvard studies in international ·1aw of 1932.
2
Crosswell, in his book Protection of International
Personnel Abroad, was mainly concerned with the present
practice of the United Nations, with very little considera
tion in regard to the League's experience or that of the
specialized agencies.3
Some research on privileges and immunities of inter
national organizations and their personnel was made by The
Hague Academy of International Law, but, until now, it was
only provisional and not for publication. Fjnally, the
most recent work on this particular topic was that of the
legal department of the United Nations Secretariat. It is
no more than a collection of conventions, agreements, and
regulations of the privileges and immunities of the United
Nations and some of the specialized agencies.
---------
2A. H. Feller and Manley o. Hudson, A Collection of
the Diplomatic and Consular Laws and Regulations of Various
Countries (Washington, n.c.: Carnegie Endowment for Inter
national Peace, 1933).
3carol M. Crosswell, Protection of International
Personnel Abroad (New York: Delano Publications, l952J.
7
I II. DEFINITIONS OF '1
1
ERMS USED
International organizations . . International organ
izations are, according to Crosswell, "agencies with an
international status akin to corporate personality set up
by inter-governmental agreement for the performance of
specific functions which have been assigned to each organ
ization by the participating governments."'4
International official. The international official
is a staff officer of an international organization
elected or appointed by the organization, or by one of its
organs, to carry out functions for the organization. He
is responsible to the organization alone for his official
activities.
The representative of a member-state to an interna
tional organization. This is a per son selected by the
government which he represents . H e is directly responsible
to his home-government and hi s acts and statements are
ordinarily imputed to his home-state.
CHAPrER II
HISTORICAL DEVELOPMENT OF THE THEORY AND PRACTICE
Whereas the law or diplomatic immunity is as old as
the early beginnings of international law, the laws regu
lating the privileges and immunities of international
organizations and their personnel ara a relatively new
development. The greater part of the history of interna
tional organizations falls in the late nineteenth and the
twentieth centuries.
During the early part of this history, however,
little effort was made to define the status of internation
al organizations, or their officials, in terms of privi
leges and immunities necessarv to the independent exercise
of their functions. The functional approach, as such, was
not adopted until the establishment of the United Nations.
Before then, the tendency was to seek a solution by trans
planting the body of "diplomatic privileges and immunities"
to international organizations, and their officials, by
means of treaty provision. This was the formula adopted
in the Covenant of the League of Nations. Prior to the
League there were certain precedents for this formula.
I. COMlfl: S ONS FOR NAVIGATION OF THE RHINE
Perhaps the first international official was the
Director General of an international commission established
9
to administer the navigation of the Rhine in accordance
with a treaty concluded between the German Empire and
France on August 15, 1804.
1
Only Article 131 of this
treaty suggested any possible sort of special status for
those employed in the administrative funct ions . The
Article provides that "the vessels and persons employed by
the custom-houses shall enjoy all the rights of neutrality."
The formula., "all rights of neutrality," therefore, was to
be standard for the protection of international officials
and delegates to the River Commission until the Treaty of
Berlin of' July 13., 1878, which regulated the navigation of
the Danube.
The Charter f or the administration of navigation on
international rivers was the Final Act of the Congress of
Vienna, concluded June 9, 1815.
2
Annex 16 of this Act
provided for a Central Commission to administer the naviga
tion of the Rhine. I n the Annex, the chief inspector, the
sub-inspectors, and employees were granted "the rights of
neutrality," which was the same indecisive provision of
the 1804 treaty. Political difficulties hindered the
cooperative efforts of the Commission, and in the Treaty
1
J. P. Chamberlain., The Regime of International
Rivers: Danube and Rhine (New York: Fredrick A. Stokes
Company, 1923), PP• 117-19.
2
Edward Hertslet, The M ap or Europe b! Treaty
1875-1891 (London: British Foreign office, 925) , , 208-
74.
10
of Mainz of March 31, 1831, common toll collection and
maintenance functions were discontinued.
Articles 354-364 of the Treaty of Versailles are
entitled "Clauses Relating to the Rhine and the Moselle."
The clauses extended the right in the ·rreaty of Mannheim,
April 17, 1869, until such a time as a new Central Commis
sion of the Rhine could meet to revise it. Any revision
made by the new nineteen member Commission was to conform
to the provisions of the General Convention relating to
international waterways. According to Article 338 of the
Treaty of Versailles such a body was to convene within one
year .
The Central Commission of the Rhine established its
headquarters on French territory in Strasbourg. The French
government was under no obligation to extend special privi
leges or immunities to the personnel of the Commission.
H owever, the Commission appealed to the French government
asking that a status equal to that of an accredited diplo
matic legation be granted to it and its members. The
Commission was liberally granted its request in 1922,
indicating French appreciation of the international charac
ter of the Commission and its members. Thus, finally,
the status of the members of the Rhine Commission as state
representatives, and of the members of the Secretariat
as international officials, was clariried, and basic
11
independence of action was, at least partially, achieved.
It was, perhaps, illustrative of an evolving trend that
the Commission asked for such status and the French
government conceded it, even though no legal obligation
compelled France to do so. The method employed to achieve
legal status was neither by custom nor convention. It
was by national legislation, enacted to meet the stated
requirements of the institution. Such legiclation, how
ever, is subject to change or restriction at the pleasure
of the national government concerned.
II . THE EUROPEAN DANUBE cor-n«SSION
The sovereignty over the mouth of the Danube passed,
at the end of the Crimean War , rrom Russia to Turkey.
Thus, the general principles laid down at the Congress of
Vienna were applied to Danubia11 navigation. The Treaty of
Paris of 1856 established a European Danube Commission,
composed of representatives of Great Britain, France,
Russia , Austria, Sardinia, Prussia, and Turkey, which was
to plan and supervise the maintenance of the shipping lanas.
The legal status of the Commission was clarified by the
European Danube Commission Public Act, which was signed
November 2 , 1856. Article 21 of the Danube Commission
established the neutrality of the works and establishments
12
of the Commission.3 It extended this neutrality,
••• with the obligations which spring from it, to
the general inspection of the navigation, to the
administration of the Port of Sulina, to the staff
of the Navigation Cash Office and Seaman's Hospitai.4
The European Danube Commission was intended as a
temporary arrangement. But its life, functions, and
authority were prolonged. The protection of its staff was
extended by the Treaty of London, March 13, 1871.5
Article 7 of the Treaty provided that:
All the works and establishments of every kind
created by the European Commission in execution of
the Treaty of Paris of 1856, or of the present treaty,
shall continue to enjoy the same neutrality which has
hitherto protected them, and which shall be equally
respected for the future, under all circumstances, by
the High Contracting Parties. The benefits of the
immunities which result therefrom shall extend to the
whole admin~strative and engineering staff of the
Commission.
It is clear, therefore, that the wording of these
treaties relative to the Danube follow the pattern set by
those for the Rhine--the provision of neutrality. Regard
ing the Danube, the Treaty of Berllni July 13, 1878, did
much to clarify the uncertain status of the Commission and
3Lawrence Preuss, "Diplomatic Privileges and
Immunities of Agents Invested with Functions of an Inter
national Interest," American Journal of International Law,
25:696, 1931.
4rbid.
5
Great ritain, the British Foreign Office, British
and Foreign tate Papers, LV, 93 .
6
bid., P• 9 •
13
the officials a ppointed by it. Article 53 pr ovi ed that:
The European Commission or the Danube on which
Rau.mania shall be represented is maintained i n its
functions, and shall exercise them hencef orth as far
as Galatz in complete independence of the terri t orial
authorities. All the treaties, arrangements, a cts
and decisions relating to its rights, privileges ,
prerogatives and obligations are confirmea.7
The Commission, therefore, was, in additi o n to its
status of neutrality·, to enjoy "complete independence of
territorial authorities." Its personnel were, a s Preuss
h~s pointed out, the first such agents awarded diplomatic
prerogatives by international agreement.8
The government of Roumania, upon whos e territory
the Commission had its headquarters, granted, by agr eement,
to the functionaries of the Commission a status equal to
that of accredited diplomatic missions. The Roumanian
Court of Cassation recognized this view in an i ncome tax
case involving an international official of the Commission.
It decided that the functionary in question "belonged to
the personnel of the European Commission of the D anube
which is considered as and treated as a diplomat ic mis
sion."9
In the early days of World War I the Commission of
the Danube was in possession of jurisdictional power on the
7
Hertslet, op. cit., IV, 2793.
8
Preuss, op. cit., p. 699.
9Research in International Law--Diplomatic Privi
leges and Immunities (Cambridge: Harvard Law School, 1932 ),
P• 32.
14
waterway downstream from Braila. It had enjoyed a long
period of successful operation, and had erected numerous
navigation aids, lighthouses, two hospitals and a head
quarters building at Galatz. The Commission's membership
consisted of France, Germany, Austria-Hungary, Great
Britain, Italy, Russia, Turkey an. d Rau.mania. The Commis
sion and all its property enjoyed immunities equivalent
.to those granted to diplomatic missions, and the status of
international officials was established reasonably well
on the territories of those states where they carried out
their functions. During the war, however, the river became
an active theater of operations. The neutrality provision
was consistently violated, and considerable dam.age was
done to the installations. The invasion of Roumania
brought all activities of the Commission to an end.
But, in spite or that, the Treaty of Versailles
gave special attention to the Danube in Articles 346-353.
The Articles, among other things, provided ror the estab
lishment of a new body, to be known as the International
Commission. This Commission is to administer those parts
of the Danube not under jurisdiction or the European Com
mission, which is re-established according to the same
a ticles of the treaty. Those articles are of special
inte est in this study. While Article 10 defined the
uties of' the new Commission, Article 27 prov~.ded that it
15
establish such administrative, technical, sanitary and
financial servi ces and define their duties.
Articles 29 and 37 are of special interest and suf'
ficient importance to warrant quotation.
Article 29:
Riparian states shall afford the Commission's func
tionaries all necessary facilities for the accomplish
ment of their duties. These functionaries, who shall
be in possession of a warrant from the Commission
setting forth their official position, shall have the
right to circulate freely on the river and in the
ports and other places where public loading and dis
charging is carried out; the local authorities in every
riparian state shall afford them assistance in the
execution of their duties.
Article 37:
The property of the International Commission and the
person of the Commissioners are entitled to the privi
leges and immunities which are accorded in peace and
war to accredited diplomatic agents.
The Commission shall have the right to fly on its
buildings and vessels a flag, of which it shall itself
determine the description and colour.
From Article 37 a conclusior1 may be drawn to the ef
fect that only property of the nternational Commission and
the person of the Commissioners were accorded diplomatic
privileges and immunities . The status of other'~unction
aries" of the Commission was not defined. According to
Article 27 of this Agreement, the functionaries were to be
given assistance and granted certain facilities by the au
thorities of the contracting states. They were to be sub
jected to police and customs formalities but this was not to be
16
dor1e in such a manner as to interfere with their duties.
Various reasons were advanced for granting the higher
functionaries and the officials of the International Com
mission adequate immunities And recognition of the special
international nature of their functions, but disagreements
prevented any conclusion of a convention. Instead, the
International Co~~ ~ ~ion followed the precedent set by the
Rhine Commission of Strasbourg. The first headquarters
site of the International Commission was at Bratislava,
Czechoslovakia. Immediately the Commission opened negotia
tion with the Czechoslovak Government in order to reach an
understanding of the status of the Commissioners and of
the Commission staff. The Czech Government was very co
operative in its interpretation and granted all interna
tional officials of non-Czech nationality the status of
members of accredited diplomatic missions. In addition to
jurisdictional immunities, international officials were
exempted from payment of direct taxes and from payment
of customs duties on articles brought in at their first
installation. as members of' the permanent staf't.
10
In 1927, the headquarters of the International Com
mission was transferred to Vienna for the following five
10
A. H. Feller and Manley o. Hudson, A Collection of
the Diplomatic and Consular Laws and Regulations of' Various
Countries (Washington, D.C.: Carnegie Endowment for Inter
national Peace, 193j.
17
years period. Upon arrival there, the International Com
mission applied to the Austrian Government for a defini
tion of a legal status for itself and its officials. An
agreement was reached similar to that which the Interna
tional Commission had concluded before with Czechoslovakia.
The Eu.ropean Commission., meanwhile, had been re
established on Roumanian territory, as it continued in its
functions to enjoy diplomatic status and privileges and
immunities.
An agreement between Hou.mania and the Commission
called Arrangement Relative to the Exercise of the Powers
of the European Commission of the Danube was signed on
August 18, 1938. This was designed to alter certain pro
visions of the Public Act of November 2, 1865, the Naviga
tion Act of May 28, 1881, and the Navigation Regulations.
Article 19 of the Arrangement provided that the European
Commission was to enjoy in respect of its property as well
as of the person of its members (Delegates, Deputy
delegates, and Delegation Staffs) the privileges and im
munities accorded in time of peace and war to diplomatic
missions.
The status of the international officials was con
sidered by an Agreement between the European Commission
and the Roumanian Government, annexed to the Arrangement.
The Agreement provided a more stable legal basis for the
18
status of the international officials of the European
Commission because it was formalized in a bilateral agree
ment which could be altered only with the consent of the
two parties, the European Commission and the Roumanian
Government. It provided that the Chiefs and Under-Chiefs
of Service should enjoy immunity from civil and criminal
jurisdiction in Hou.mania unless their immunity was waived
by a decision of the Commission. Those officials of
Roumanian nationality were immune from local jurisdiction
for their official acts only.
11
The remainder of the
personnel were to enjoy the same privileges and immunities
in respect of acts performed in an orficial capacity, but
they were to be subject to the local laws and courts in
respect of all private acts.
12
The higher ranking offi
cials, mentioned as Chiefs of Service, were exempt from
all taxation except land taxes levied on the ownership or
real property. The lower officials of the permanent starf
were to be exempt from tax on their salary. Non-Roumanian
officials were exempt from customs duties on any personal
effects brought into the country during the first six
months after assuming their duties. The higher personnel
were to enjoy similar exemption during the entire perioa
11
Articles 1 and 3 of the Agreement.
12
Article 2 of the Agreement.
19
of their employment on such articles as were imported for
their own--or their family
1
s--personal use.
III. THE INTERNATIOliAL INSTITUT OF AGRICULTURE
This Institute was established by a General Conven
tion in June 7, 1905, which was attended by representatives
of thirty-eight states and dependencies.
1
3 Its purpose
was to collect inrormation and to propose recommendations
for treaties and legislative measures relative to agricul
tu:re. Any political or commercial activities were for
bidden. T~.1.e Institute consisted of two main bodies--a
General Assembly, c. omposed of' delegates from the members
of the Institute, which was given supreme control, and a
Permanent Committee, made up of one representative from
each member of the Institute, which was the executive organ.
The Convention of 1905 did not contain any provision
on the juridical status of the rnstitute or its personnel.
And from 1905 until 1930 the legal position of Institute
personnel remained undefined. There were, however, two
views on the legal status of the Institute and its offi
cials which prevailed during all those years.
1
4 One main
tained that in the absence of a special treaty provision,
1
3Text of the Convention, American Journal of Inter
national Law, Special Supple1ne'iit No. II, 1908, P• 358.
1
4 orman Hill, International Administration (New
York: McGraw Hill Book Company, 1931), P• 358.
20
the Institute had to be considered a national corporate
person under the jurisdiction or the laws or Italy. This
view was entertained by the Italian Government, upon whose
territory the Institute headquarters was located .. In 1911,
the Vice-President of the Institute, M. Louis-Dope,
approached the Italian Government with a request that the
organization and its personnel be granted diplomatic im
munities, since that was the only manner by which the
proper independence of the Institute could be assured. His
request was refused on the basis or the rirst stated
view.
1
5 The second view was based on the following argu
ment: Since the Ins ti tut;e was international in its origin
and activities, conducted without profit, and functioned
in the common interest of all member states, its status
was inconsistent with that of a national corporate person.
However, the Institute, in practice, held a posi
tion somewhere between these two views. No special status
was provided by treaty or by Italian legislation, but the
Institute was not treated as an ordinary national corporate
person. The overnment or Italy had neither granted nor
recognized special privileges and immunities for the
Institute and its personnel. But neither did it subject
them to national laws governing national corporate bodies,
private citizens and aliens. ince most of the members
15
Ibid., P• 371•
21
of the governing body were members of the diplomatic mis
sions accredited to the Italian Government at Rome, they,
consequently, enjoyed diplomatic immunities. Salaries of
the Secretariat officials wer e not taxed. The premises
occupied by the Institute were donated by the King of Italy
and were placed under the contro l of an Italian commission.
Thus, the Institute enjoyed the use of the facilities at
the pleasure of the host state.
There was no question about the fact that the
Institute possessed an international character. But the
problem of whether or not the talian Government committed
itself to recognize certain limitations of territorial
jurisdiction as a consequence of inviting the Institute
to establish its headquarters in Italy, was a basic one.
The Permanent Committee of the Institute finally resolved
to settle the issue by direc t negotiation with the Italian
authorities. In 1923 a negotiating comnittee, headed by
M. Louis-Dope, was appointed. With the precedent of the
League or Nations behind it, the committee requested that
the Institute be granted the same privileges and immunities
as those enjoyed by the I nternational Labor Office in its
relations with the Swiss Government. The committee, in
December, 1923, was assur ed that its request would receive
favorable consideration. In September, 1929, the Italian
Council of Ministers adopted a decree meeting the reques
22
of the negotiating committee. After it had been approved
by the Italian Chamber of Deputies ani the Senate, in
June, 1930, the law was effective by its publication in
the Official Gazette, the official Italian Journal, as
Law Number 75 on August 14, 19JO.
The status of the International Institute of Agri
culture was clarified, even more, when it was brought into
relationship with the League of Nations and its regulations
were approved by the League Council Assembly. Article 15
of the Staff Regulations then went into effect, providing
that "the higher officials of the Institute shall enjoy
diplomatic privileges and immunities in accordance with the
practice of the League of Nations.
11
16
l61ea ue of Nations, Official Journal, 1928,
P• 1753•
CHAPI'ER III
PRIVILEGES AND IMMUNITIES OF THE LEAGUE OF NATIONS
AND ITS OFFICIALS
I. TKE LEGAL STATUS OF THE LEAGUE OF NATIO S
The immunity of international organizations is dealt
with by a very close network of legal provisions such as
constitutive acts, multilateral conventions, bilateral
agreements, modi vivendi, and municipal laws and regula
tions. All public, general , international organizations
are created by constitutive acts; therefore we are struck
by the importance of the legal position of the organization
as well as its privileges and immunities. To many experts
in the field, the League of Nations was the first "general
international organization," and with this fact in view
we shall, in this chapter, attempt to survey both its legal
status and privileges and immunities it enjoyed.
The question of the legal capacity of international
organizations is one that has, indeed, long concerned
students and practitioners of international law. It is
obvious that an international organization may be serious
ly hampered in the performance of its functions by not
being able to possess legal capacity in the territory of i1B
members. This capacit is indispensahle, inasmuch as these
organizations have to "enter into innumerable transactions
governed by the municipal laws of different countries
which are incidental to their daily operations.
111
Such
legal capacity has indeed always been granted by the state
of the situs and it can be said that state was under an
international obligation to grant it, so far as it was
necessary for the fulfillment of its functions and not
beyond the powers granted to it by its national constitu
tion.2
It is true that Article 7, paragraph 4 of the Cove
nant of the League of Nations related only to the staff and
the premises of the League, but the practical experience
between the League of Nations and the Swiss Federal Govern
ment has laid the foundation for the legal status of the
League. As a result of such experience, the Swiss Federal
Gove nment has literally recognized the League of Nations
as poss essing "international personality and legal capac
ity.113
The l odus Vivendi of 1921 with Switzerland
Prior to the transferring of the League of Nations
1
c. w. Jenks, The Head uarters of International In
stitutions, A Study of Their Locat on and Status London:
The Roy~l Institute of International Affairs, 1945), P• 39.
Josef L. unz, "The Pan American Union in the Field
of International Administration," Iowa Law Review, Jl:58-
89 , 1945.
3Lea ue of Nations Document c.555.1926.v. League of
ations , Official Journal, 1927, P• 1422.
25
Secretariat from London to Geneva, there was no record of
any agreement between the British authorities and the
League regarding the scope of privileges ana immunities
of the League and its officials. The only privilege
granted by the British Government to the League was the
exemption of the League officials' salaries from income
tax, including thos~ of Britinh nationality.4 Shortly
after the arrival of the ecretariat in Switzerland,
however, the Secr etary-General, acting on behalf not only
of the
1
ecretariat but also of the International Labour
Office, entered into negotia t ions with the Federal oliti
cal Department leading to agreement on a number of impor
tant points, including the recognition of the League as
an "international personality.
st
The Swiss Federal Council, in its message of
August, 1919, wrote: "It is natural that the League of
Nations should enjoy the same privileges and the same
immunities as any state with which we entertain diplomatic
relations.
11
5
In line with this attitude, the basic principle of
the 1921 Modus Vivendi, such a principle may be found in
~he exemption meant that the League salary was
deductible from total income of the official. Records of
the First Assembly, Meetings of the Committees, League of
Nations, Official Journal, 1922, P• 12.
5
bid., P• 51.
26
the official letter, which constitutes a part of the
agreement, from the head of the Federal Political Depart
ment to the Secretary-General of the League of Nations,
July 19, 1921, which in part stated.:
Although Article 7 of the Covenant of the League 0£
Nations relates only to the staf£ and the premises of
the League, it should be recognized that, in applica
tion, 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 recog
nized in international law, e.g., in regard to suits
concerning real property, etc.).b
This provision had, indeed, and for the first time, estab
lished the juridical basis ror the League of Nations as
an international personality possessing legal capacity.
The provision further stated:
A - The premises in which the services of the
League of Nations (Secretariat and International
Labour Office) are installed (in the case of buildings
occupied by League offices, the buildings themselves,
together with gardens and annexes) will be inviolable,
by which should be understood that no agent of the
pubiic authority will be entitled to enter them in
the exercise of his duties, without the consent of
the Secretariat or of the International Labour Office.
B - The archives of the League of Nations will be
inviolable.
6
Martin Hill, Immunities and Privileges of Inter
national Officials The Ex erience of the Lea ue of
ations Was ngton, D.C.: Carnegie Endowment for Inter
national Peace, 1947), P• 126Q
21
C - n application, by analogy of the right en
joyed by diplomatic missions to correspond freely with
their governments, the Secretariat and the Interna
tional Labour Office will be entitled to use official
couriers for the transmission of their official cor
respondence to their agents abroad (and vice versa);
reference should, in this connection, be made to the
correspondence exchanged between the Foreign Affairs
Division and the Secretariat concerning the details
of the arrangements for the service of couriers
between Geneva and Paris.
D - The League of Nations will enjoy complete exemp
tion from customs duties in respect of all articles
which are its own property (as distinct from the
property of the members of its staff) and are intended
solely for the use of the Secretariat or of the Inter
national Labour Office (furniture, equipment, office
supplies ••• etc •••• ).7
The Modus Vivendi of 1926
The Modus Vivendi o 1926 with the Swiss Federal
Council summarized and completed the arrangement of 1921
regarding the recognition of the status of the League of
ations as an international entity with a legal capacity.
But, unlike the 1921 agreement, this Modus Vivendi was
submitted to the League Council for approval and published
in the League's Official Journa1.
8
It may be of interest
to mention that the ne~ Modus Vivendi, like its predeces
sor, represented no relation or connection to Article 7,
paragraph 4, of the Covenant of the League. To quote the
7
Ibid., PP• 125-26.
8Lea ue of Nations, Official Journal, 1926,
PP• 1422-24.
28
report adopted by the Council on September 20, 1926:
Avoiding all discussion on the legal interpretation
of Article 7, paragraph 4, of the Covenant, the Agree
ment contains practical rules on all of which the
Swiss Federal Government, the Secretary-General of
the League of Nations, and the Director of the Inter
national Labour Office have declared their agreement.9
One important aspect of the 1926 Modus Vivendi,
however, is its contractual nature, and therefore its
binding character which clearly appears from its Article
14, which reads in part as follows:
The above rules of the Modus Vivendi can only be
modified by agreement between the Organizations of
the League or Nations and the Political Department.
If, however, an agreement cannot be reached, it shall
always be open to the Federal Government or the Organ
izations of the League or Nations to denounce the
whole or part of the rules of the Modus Vivendi. In
this case the rules mentioned in the denouncement
shall remain in for3e for one year from the date of
such denouncement.
1
This provi~ion, without doubt, placed the League
of Nations in the family of nations as an international
personality possessing a legal capacity, and in some
important aspects treated as any other soveralgn entity in
the eyes of the law of nations.1
1
II . P IVILEGF.S AIID Il1.MUNITIES OF THE LEAGUE'S OFFICIALS
PJrhaps the only juridical foundation regarding the
privileges and immunities of the League officials is to
9 10
Hill, op. cit., P• 19. Ibid., P• 141.
11
Se e Appendix II, Modus Vivendi of 1926.
29
be found in Article VII, paragraph 4 of the Covenant of
the League, which reads:
Representatives of the Members of the League and
officials of the League when engaged on the business
of the League shall enjoy diplomatic privileges and
immunities .12
But the main difficulty which Article VII, para
graph 4 has left is whether or not all officials, in their
various categories, enjoy the same privileges. This has
been a question of a special importance in the case of
the Secretariat and the International Labour Organization.
The Covenant made no distinction between officials of
different status, but it was evident from the outset that
the full prerogatives appropriate in the case of the
Secretary-General and other high officials could not be
extended to the humblest clerk in the League.
First Category Officials not of Swiss Nationality
Personal inviolability. The officials not of Swiss
nationality are divided into two main classes, namely, the
First and the Second Categories. The Modus Vivendi of
1921 granted officials o:f the First Category
11
inviolabil
i ty" in the same technical meaning given to this w,1rd in
1
Zrhe League of Nations Covenant, Article VII,
para rapl1 4.
JO
international law.
1
3 Under this term, officials of the
First Category enjoy freedom from any form of duress or
compulsion by the local police or other administrative
authorities. The question of freedom from police juris
diction in general will be discussed below in connection
with the exemption from criminal jurisdiction. Freedom
of the "control of the aliens,tt special protection, and
inviolability of residence will also be discussed.
1. Freedom from the "control of aliens." Officials
of the League were not subject to expulsion from the
Canton of Geneva or, for that matter, from the Conf'edera
tion. They did not have to obtain residence permits or
report personally to the Swiss authority like other
foreigners in Switzerland, and, for that matter, in many
other countries. The Federal authority had provided them
with specia l cards which took the place of cards issued
to regular or ordinary aliens residing in Swiss territory.
These cards were issued on the basis of the list submitted ·
by the Secretary-General of the League and the Director or
the International Labour Office. The cards indicated to
13
In the early years or the League a case involving
the word "inviolability" was decided by a Swiss court.
See Charles H. Levermore, Second Yearbook of the League
of Nations, January 1
1
1921 - February b, 1922· (New York:
Brooklyn Daily Ea gle Company, 1923), P• 117.
31
police and other authorities the quality of the officials
concerned and the types of privileges and immunities to
which each was entitled throughout his or her stay in
Switzerland.
2. Special protection. The juridical basis of the
special protection may be found in Article VII, paragraph
4, of the Covenant of the Lea ue. To illustrate this
point further, we may cite the de Justh v. Bethlen case
of 1928. Count Bethlen, who had been attending a meeting
of the Council's Committee on H ungary, was assaulted in
the Lea gue's building on leaving the meeting room. The
Swiss Federal Court which passed judgment on the assailant,
a certain de Justh, based its decision on Arti cle 43 of the
Federal Penal Code. I t ruled that the protection which
this Article grants to
representatives of a foreign power accredited to the
Swiss Con.federation, was extended to representatives
of members of the League of N ations by Article VII,
paragraph 4, of the Covenant of the League, which has
received force of law in Switzeriand by its publica
tion in the Official Registrar.14
It is of interest to menti on that Count Bethlen was
not a League official. H e was only a representative of a
member of the League. But one of the judges argued that
1
4A. H. Feller and M anley o. H udson, A Collection
of the Di lomatic and Consular Laws and Re ulations of
Various Countries ashington, D. C.: Carnegie Endowment
for International Peace, 1933 ) , II , 1178.
32
if the special protection granted by Article 43 of the
Penal Code to heads of foreign missions (not to counsel
lors, secretaries, and attaches) were extended to repre
sentatives of the members of the League, League officials,
to whom the Covenant granted the same privileges and
immunities as to those representatives, would necessarily
enjoy the same protection.
3. Inviolability of private residence. Inviola bility of private residence of officials of the League
was not mentioned in the Modus Vivendi. But, in 1921,
the Committee on Amendments to the Covenant, a League
Committee, dealt with it under Article 7, paragraph 5 of
the Covenant. The Committee, having noted the discrepan
cies between the English and French texts of that Article,
pointed out that only the English text provided for
inviolability of buildings occupied by representatives of
member states attending a meeting of the League.
1
5 The
Committee's interpretation was that if the English text
granted inviolability of residence to the representatives
of the members, clearly League officials should enjoy the
same prerogative. The Committee also noted that the
erfect or the discrepancy between the :English and French
15
The League or Nations Covenant, Article VII,
paragraph 4•
33
texts was greatly reduced by the provision of the preced-
ing paragraph of Article 7. The diplomatic privileges
and immunities which the representatives of the members of
the League enjoy when engaged on the business of the
League include, according to the general usage, inviola
bility of domicile. This statement would imply that the
residences of the League officials who enjoy diplomatic
prerogatives are likewise inviolable.
Immunity from jurisdiction. Extraterritorial
officials , according to the Modus Vivendi of 1921, should
enjoy ":tmmunity from civil and penal jurisdiction, as this
is understood in international law." The Modus Vivendi
of 1926 provides, in Article VII, that they shall "enjoy
immunity from civil and penal jurisdiction in Switzerland
unless such jurisdiction is waived by decision of the
Secretary-General of the League, or Director of the Inter
national Labour Office."
16
Immunity from penal jurisdic
tion implies immunity from police jurisdiction.
It is very important to indicate that these immuni
ties were "not to give any excuse to the officials who
enjoy them for non-performance of their private obligations
or failure to observe laws and police regulations ."
1
7 This
16
s ee Appendix II, Modus Vivendi of 1926, Article
VII .
17
ill, Immunities and Privileges of International
Officials, P• 136.
is also plain in the last part of Article VII of the
M odus Vivendi of 1926 which reads:
34
It is clearly understood, however, that the organ
izations of the League of Nations at Geneva will
endeavor to facilitate the proper administration of
justice ~nd execution of police regulations at
Geneva.lti
The observation of the Swiss law and Swiss police
regulations was not of less concern to the International
Labour Office, which was included with the League in
:tvlodus Vivendi of 1921 and Modus Vivendi of 1926. It is
of importance in this connection to quote M . Albert Thom.as ,
the first Director of the International Labour Office,
who stated:
It might be thought by some that the privileges
thus ranted to international officials place them
above the law, and above any legal penalty for the
non-execution of their obligations; that, in short,
the immunities place them permanently beyond the reach
of justice. Such an idea would be entirely wrong. It
may be stated on the contrary that in no case has the
possession of diplomatic immunities resulted in an
official of the Office evading legal responsibility
for his personal action.19
1. Regulations short of court action. According
to the arrangement of 1921, the Swiss Government reserved
the general right to call the attention of the Secretary
General of the League, or the Director of the International
18
Hill, loc. cit.
l9rnternational Labour Conference, Report of the
Director, Ei hth Session, Montreal, 1926, P• 50 .
35
Labour Office, to the conduct of any official, if such
conduct gave ground for complaint. The Swiss authorities
could also ask for the application of disciplinary meas
ures, including the dismissal of the official concernea.
20
But the Geneva authorities, in the meantime, laid down
special rules and regulations re _arding the relations of
the Swiss police and the League officials. All police
officers were informed by their superiors of the following
rule:
The police officer who is confronted with a viola
tion of a law or regulation committed by an official
of the Secretariat or of the International Labour
Office will confine himself to making a circumstantial
report, which will be transmitted, with as little
delay as possible, to his superior, who will decide
in each
1
ase what action should be taken on that
report.
2
·
It is of importance to realize that officials were
privileged in the sense that they received from the police
a standard of courtesy appropriate to their official
statu~. But, it is equally true, the same officials could
be reported to the League authorities not only for unlaw
ful or illegal acts, but also for any improper conduct.
This fact had indeed guaranteed their ood behavior. The
Personnel Office and the Legal Advisers of both the
20
rn a letter of July 19, 1921 from the Head of
the Swiss Federal Political Department to the Secretary
General of the League of Nations. See Appendix I, Modus
Vivendi of 1921.
21
staff Regulations of the Secretariat.
36
ecretariat and the International Labour Offrce were
always on the job. They examined any case brought to
their attention and if they were satisfied that the charge
was justified, they could advise the Secretary-General,
or the Director of the International Labour Office, on the
disciplinary or other measures that seemed most appropri
ate. The offenses, in the majority of instances reported,
were not at all serious. Therefore, nothing more than a
warning or rebuke has been called for.
The good will, the cooperation, and the close con
tacts established between the Secretariat of the League,
the International Labour Office, and the Swiss Police
Department were important in smoothing the working of
these arrangements. Article XII of the Modus Vivendi of
1926 provided:
Correspondence relating to the application of the
rules of the Modus Vivendi between the organizations
of the League of Nations and the Swiss authoritie~
shall be exchanged through the intermediary of the
Federal Political Department, except in cases in which
som.e other procedure has been prescribed.22
Very few cases have resulted in which the above
provision had to be invoked, and the Geneva Cantonal
Department of Justice or the Police Department had to com
municate directly with the Secretary-General or the Direc
tor of the International Labour Office.
22
Appendix II, Modus Vivendi of 1926.
37
Still fewer were the cases involving the First
Category officials with civil law. In case of complaint,
for example, of non-payment of debt or violation of con
tract on the part of the official, if the League authori
t i.es have been convined that the official was at fault,
they put the strongest pressure on him to meet his obliga
tions in full. In some cases involving debts, officials
personally had authorized the League to pay their creditors
directly part of their monthly salaries until the extinc
tion of the debt.
2. Extraterritoriality and jurisdictional domicile.
First Category officials were described, in the 1921 and
1926 agreements , as "extraterritorial" staff. In the
first Modus Vivendi (1921) "extraterritoriality" was used
as a general term to indicate the prerogatives and immuni
ties of those officials. It was assumed, therefore, that
a person enjoying this status continued to be domiciled
in his own country. The Modus Vivendi of 1926 again
applied the term "extraterritoriality" to the officials
of the First Category. The legality of the principles
of extraterritoriality has been abandoned in modern
times as the basis of the prerogatives granted to diplo
matic a ents under international law. To illustrate this
38
principle further, the summary of a case brought before
the Court of First Instance, July, 1927, in Geneva, may
be quoted:
The Facts: On 23 March 1927, Mrs. P., wife of
s. P., a first category official of the International
Labour Office, of British nationality, commenced
divorce proceedings against her husband. By a letter
of 21 June the Deputy Director of the International
Labour Office waived s. P.
1
s immunities on behalf of
the office in respect of civil proceedings, and by a
letter of the same dates. P. him.self renounced the
benefit of his immunities in respect of the proceed
ings instituted by his wife. On 5 July the Procureur
General, Geneva, submitted 'to the Court that it was
incompetent on the ground that the defendant being a
representative of a foreign country must be deemed
never to have left his country and to retain his
domicile there in virtue of the legal fiction of
extraterritoriality.
Held: That the Court was competent on the following
grounds:
(1) Extraterritoriality was a fiction. It was
merely the ensemble of the privileges and immunities
of the diplomatic agents and of the officials of the
League of Nations and International Labour Office
who were assimilated to such agents.
(2) On the waiving of diplomatic immunity the
Court of the place of residence of the diplomatic
agent became competent to take jurisdiction of any
dispute which did not affect the performance of his
o.fficial duties.
(3) That as the defendant had lived in Geneva as
an official of the International Labour Office since
1923 and had taken a flat until 14 February, 1928,
and as there was nothing to show that he intended to
leave his official position he mu.st be considered to
be resident at Geneva with the intention of r·emaining
there . He was therefore domici ed in the Canton, and
the Swiss authorities had jurisdiction. The argument
that in view of his exemption from taxes s. P. was
39
not domiciled at Geneva was not decisive seeing that
the non-extraterritorial staff of the League also
enjoyed such exemption.23
This case has not only illustrated the decline of:
the fiction of "extraterritoriality," but also has clearly
explained the importance of waiving the immunities them
selves. The case has illustrated the fact that the
immunities of the League officials are subject to waiver
by the Secretary-General of the League or the Director
of the International Labour Office. We may indicate, too,
that a great importance has always been attached by both
League and Swiss authorities to the waiving of immunities.
Waiver has been allowed freely whenever the interests of
the League institution conce~ned would not be injured
thereby.
The following article appears in the Staff Regula
tions of the International Labour Office, arrl the General
Instructions relating to the Immunities of Members of
the Office Staff:
It is evident that the Director can in no circum
stances permit the exercise of the immunities for
other than their legitimate urpose, and he will
have no hesitation i:n ••• waiving them in every
case where they constitute an obstacle to justi.fied
demands that do not affect th
4
e interests of the
International Labour Office.2
23Annual Digest of Public International Law Cases,
Bein _ a Selection from the Decisions of International and
ational Courts and Tribunals London: Longmans, Green and
Co., 1929), pp. 316-17. (Hereinafter r eferred to as:
Annual Digest of Public International Law Cases.)
24
eneral Instructions, March, 1936, Part I.
40
Tax exemption. Officials belonged to the First
Category and have always enjoyed complete exemption from
direct taxes as "extraterritorial., members of diplomatic
missions. Fiscal immunity was also granted to them,
under the Modus Vivendi of 1921. Regular direct taxes
in Switzerland at that time WP .. :·e not federal but cantonal,
or local. The First CategorJ officials were duly exempted
b y several decrees, among which were two dated June 14,
1921 and April 18, 1922.
The Modus Vivendi a greement of 1926, between the
League of Nations and the Swiss authorities provided
that "Officials of the organizations of' the League of
Nations who are members of the First Category enjoy fiscal
imm.unity.
112
5 Consequently, they were exempted from all
direct taxes with the exception of the charges attaching
to immovable property {such as the land tax~
In 1934, officials of the First Category were also
exempted from the then newly introduced "Federal Emergency
Tax" as well as the various special federal taxes levied
during and after the war. Naturally no private investment
or holdings of the officials were exempted from taxation.
Customs facilities. Article 14, paragraphs 5 and
25
Appendix II , Modus Vivendi of 1926, Artlcle VIII.
41
8 of the Swiss Federal Customs Law of ovember 1 , 1925 ,
together with a decree of the Federal Council dated
July 8, 1926, defined the scope of the facilities to be
accorded to the different categories of the League offi cials . 26 But , on this matter , the officials of the
First Category were divided into two main groups . Those
of the first group , including the Secretary-General , the
Deput and Under Secretaries-General , Directors in the
League ecretariat , the Director of the International
Labour Office , Deputy Director , and Chiefs of Divisions
in the International Labour Office , are assimilate d to
heads of diplomatic missions accredited to the Swiss
Confederation. They are granted exemption from lug a~e
examination and complete customs exemption in respect to
articles and supplies de tined for the use of or consump tion by themselves and their households . Officials who
belong to th second group of the First Category enjoy
limited facilities only. rior to the Modus Vivendi of
---------
1926 , any forei ner taking up residence in Switzerland
is allowed to bring his used furniture and belongings
into witzerland free of duty within one year of his
taking up residenc e in the country.
2
7 Therefore , m1der
26
Feller and Hudson, op . ci ., PP• 1178- 79 .
27
ec et ry- eneral'~ Circular, 1922.
this arrangement , officials of the League mi ht "intro duce free of duty only used articles when they first estab lish a home in Switzerlanct .
1128
But, in 1926 , and after .,
facilities were extended to permit them to bring new as
well as used articles and to include automobiles , bicycles ,
etc., as well as furniture . A reservation was attached
to this privilege in the case of all First Category offi cials . The official i~porting an automobile $ for example,
duty- free , had to give an assurance to the Swiss authori
ties that he would not dispose of the automobile in
Switzerland without having paid the duty. However , if he
had disposed of it two years after importation ., only
one - half of the duty would have been payable ; four years
after importation the customs exemption, even in the
case of sale of the automobile, was complete .
Visa facilitie . Due to the fact that visa require
ments have been generally abolished by Switzerland , this
matter was dealt with in the Modus Vivendi of 1921 only.
Officials of the First Category were entitled to diplo-
matic visas on their passports .
29
uch a visa,issued by
the Foreign Affairs Divis i on of the Federal Political
Department , was to be used either for a single journey or ,
28
rbid .
29
Appendix I , Modus Vivendi of 1921.
43
on request, for unlimited numbers of journeys . JO
Privileges of the families of officials . Wives
and children of the First Category officials were also
granted privileges and immunities , according to the Modus
Vivendi of 1921 . 3
1
Such privileges and immW1ities could
be enjoyed by the family of the official only if the
family lived with him and did not exercise any profession
in Switzerland. Subject to the same provision were the
parents and parents-in- law of the official . They, how
ever, had no other prerogatives . In the case of members
of an officials family traveling for more than thre e
months to a place in Switzerl nd outside the Canton of
Geneva , arrangements were made by the Swiss authorities
whereby, subject to due notification being given to the
Federal Political Department, the persons concerned were
not asked to take out residence permits or pay taxes .
Officials of this category were allowed to bring to
Geneva from any country , or wiss canton, their "private
s tes ,
11
which included secretaries , chauffeurs , servants ,
etc .
econd Category Officials no~ of Swiss Nationality
Personal inviolability. Officials or the Second
44
Category did not enjoy, theoretically, any inviolability
except as a result of the immunity from jurisdiction.
This immunity involved freedom from administrative or
polic e interference which those officials enjoyed "in
respec t of acts performed by them in thair official
capacity and within the limits of their functions.
11
32
Exactly like the officials of the First Category, the
officials of the Second Category were not subject to the
,
11
police de etrangers" and carried special identity cards
issued to them by the Swiss federal authorities. hile
the identity cards of the officials of the First Category,
as explained above, entitled the holders to enjoy general
immunity from legal process, civil or criminal, without
any qual fication, the officials of the Second Category
only enjoyed such immunity in respect of acts per£ormed
by them in their official capacity and within the limits
of their functions. "They shall remain subject to local
laws and jurisdiction in respect of acts performed by
them in their private capacity.
0
33 This limitation is
mainly arranged because of the large number of officials
involved. It was also because of the inclusion of sub
ordinates as well as part of the administrative starr in
3
2
Appendix II, Modus Vivendi of 1926.
JJibid.
45
this category. But as a matter of practice, if judicial
or police measures taken against a member of the Second
Category officials were of such a nature as to affect
the work of the Lea ue services, the Secretary-General or
the Director of the International Labour Office could
bring the matter to the attention of the authorities.
The Swiss authorities were to take account of such repre
sentation so far as was compatible with public order.
Tax exemption. The officials of the Second Cate
gory were exempted, according to the Modus Vivendi of
1921
1
from the tax on fortune or income granted only in
so far as the income did not exceed the amowit of tha
official's regular salary. But the Modus Vivendi of 1926
provided that officials of the Second Category would be
exempt (1) from the tax on salary, (2) from the tax on
capital or income, and (3) from the Emergency Federal War
Tax.34 They have also been exempt from paym.ent of the
various federal taxes.
Customs facilities. Officials of the Second Cate-
gory were not provided with customs facilities under the
~odus Vivendi of 1926.
-
But, like the official of the
First Category, they enjoyed some minor facilities
J4Appendix II, Modus Vivendi of 1926, Article VIII.
46
regarding customs formalities under the agreement of 1921
and some of the courtesy privileges. These are, for
example, the privileges of obtaining non-quota licenses
for the purpose of importing goods subject to licenses.
This could be arranged only if the importation of such
goods was considered for personal use.
Visa facilities. Prior to the abolishment of the
visa requirements by the Swiss authorities, the officials
of the Second Category used to be provided with a "non
diplomatic11 visa. These visas, like the First Category
diplomatic visas, were issued by the Foreign Affairs
Division of the Federal Political Department.35 Like the
diplomatic visa, this visa was either a visa for a par
ticular journey, or a permanent visa, with the same maxi
mum period of validity.3
6
Families of Second Category officials. Members of
the families of the Second Category officials, their
wives, their children, their parents and their parents-in
law, enjoyed t he same privileges granted to the families
of the First Category officials. This was recognized by
the Modus Vivendi of 1921 and the Modus Vivendi of 1926.
35Appendix r, Modus Vivendi or 1921, A letter from
the Head of the Swiss Federal Political Department to the
Secretarr-General of the Lea ue of Nations, July 19, 1921.
3 Ibid., paragraph F of letter.
47
Officials of this category were not entitled to "private
suites," as was the case with the officials in the First
Category.
Some privileges of less importance. Above, the
main principles of the most important privileges ani
immunities of the officials of the League of Nations, the
First and Second Categories, were explained. But it may
be proper not to conclude this matter without mentioning
some of the less important privileges and procedures
concerning officials of both Categories. In brief,
these were:
1. Rationing privileges. Because of the war,
Switzerland had to set up a rationing system for its
people. All high officials of both the League of Nations
and the International Labour Office, as well as the mem
bers of diplomatic corps at Berne, were offered a nwriber
of _ privileges in this respect. But the Secretary-General
of the League and the Director of the International Labour
Ofrice had, from the first, waived such privileges as a
esture of solidarity between the s ·taff and the people of
Switzerland.
2. Duration of privileges and immunities. It has
been a custom that when a diplomat transfers to another
post, or resins, he is iven some time to arrange for
48
h.ts departure before immunities are withdrawn. If he
dies, his wile, widow or other dependents likewise continue
for some time to be covered. This custom was applied in
regard to the League officials.
3. Lease of houses or apartments. Another general
privilege accorded both categories of League officials
was the precautionary measure, taken by the Swiss authori
ties, against incurring, by contract, any liability for
the fulfillment of obligations which could be incompatible
with the positions of the officials. In furtherance of
this policy, officials were advised to obtain the inser
tion of a so-called "diplomatic clause" in their leases
on houses or apartments.37 Such a clause normally pro
vided that, should the lessee leave Geneva, either in
performance of his League duties or on his own initiqtive,
at the termination of his employment with the League, he
was at liberty to cancel the lease upon three months•
notice.38
4• Automobile driving and tests. The Swiss
-· --------
37This practice followed by the diplomatic corps at
Berne also. Hill, Immunities and Privileges of Interna
tional Officials.
38
Circular to the League Secretariat Regarding the
Rights Qonferred and the Obligations Imposed Upon Members
of the Secretariat of the League of Nations by Article VII
of the Covenant, Geneva, May 1, 1928.
49
regulations concerning automobile and driving tests had
to be adhered to by officials of the League belonging
to both Categories. It was provided, however, that the
automobiles of members of the First Category could carry
a distinctive mark in addition to the usual registration
number. It was the custom for many years that only the
officials of the rank of the Director, Secretary-General,
or Chief of Division placed a "CD" (Corps Diplomatique)
plate on their automobiles, but, af'ter 1930, all First
Category officials were invited by the League authorities
to put this sign Gn their automobiles, which distinguished
them in respect to the police and customs control.
League Officials of Swiss Nationality
The position of members of the staff of Swiss
nationality created difficulty both for the League of
Nations and for the Swiss authorities. The Modus Vivendi
of 1921 expressly reserved the status of the staff of
Swiss nationality for a future settlement.39 It was pro
vided, however, that such officials should enjoy certain
privileges in the meantime.
Tax exemption. Among those certain privileges to
39
rt should be noted that the Modus Vivendi of 1921
was a provisional and partial arrangement subject at any
time to revision at the request of one of the parties.
50
be enjoyed by the officials of' Swiss nationality, accord
ing to the special arrangement made immediately after.
the Modus Vivendi of 1921, was the tax exemption~ so far
as their League salaries were concerned. Also the
"earned income" was exempted from the Geneva Cantonal
taxes.
These privileges were later revoked by the Geneva
Cantonal Taxation Law of March 24, 1923. When tax pay
ments by Swiss of'ficials under thi s law were abou.t to be
due in 1925, representations on the subject were made by
the Secretary-General of the League to Swiss federal
authorities. A long and interesting negotiation took
place to determine whether or not the Swiss authorities
were entitled. to tax Lea ue officials of Swiss nati onality.
In brief, the Secr etariat of the League based its request
to exempt Lea ue officials of Swiss nationality on Article
7, paragraph 4 of the Covenant, and claimed fiscal immunity
as a right for all its members. If the Swiss Federal
Council had considered itself legally bound in this matter,
the Secretaria t argued, it should, of course, not have
hesitated to take appropriate steps toward that end.40
40T his view a ppeared in a Memorandum by the
Secretary-General of the Lea gue of Nations to the Head of
the Swiss Federal Political Department, Geneva, December
18, 1925. See Hill, op. cit.
51
The Swiss Federal Council, on the other hand, based its
refusal to grant such exemption for Swiss nationals who
were officials of the League organization upon the follow
ing legal points: (1) that the right of a state to refuse
diplomatic privileges and immunities to its own nationals
is established in international law, and (2) that, in
modern doctrine of international law, fiscal immunity is
re arded not as a prerogative but as a privilege granted
out of courtesy.4
1
At any rate, the negotiations that followed failed,
and the matter was brought before the League Council
again in March, 1926. It remained on the a enda of the
Council until the September session when the new Modus
Vivendi, which conrirmed the exemption of Swiss officials'
salaries from cantonal and municipal direct taxes, was
presented and approved.
Military service. There was no adequate and pre
cise arrangement for the freedom of Swiss officials of
the League from military obligations. According to the
Swiss militia system, men of military a e were called
upon every year for a period of training. Those exempted
4
1
The Swiss point of view appeared in a Memorandum
addressed to the Secretary- --eneral of the League of
ations b the Head of the Rederal olitical e artment
Geneva: February 2, 192 • League of ations Document
c.92.1926.v.
on medical or other grounds paid a special tax, called
"-taxe mili taire."
However, Article II of the 1926 Modus Vivendi
provided:
If the exi gencies of training and the interests
52
of the country permit, exemptions from or postpone
ments of military service shall be granted to offi
cials of Swiss nationality incorporated in the Federal
Army in cases in which their compliance with an order
calling them up for military service would be likely
seriously to interfere with
4
~he normal working of
the services of the League.
These arrangements, however, have, created confusion
and difficulties regarding the officials who were sent
abroad on missions or whose presence in Geneva was urgent
ly required during the time set for their military serv
ice duties.
Immunity from jurisdiction. The M odus Vivendi of
1921 provided that officials of the League who were of
wiss nationality be made "immune from jurisdiction in
respect of acts accomplished by them in their official
capacity and within the limits of their duties.
11
43
Article rx, paragraph 1 of the M odus Vivendi of 1926
extended the same privilege to the extent that it provided
4
2
Appendix II , .!'1odus Vivendi of 1926, Article VI.
4
3
Appendix I, M odus Vivendi of 1921.
53
that "officials of Swiss nationality may not be sued
before the local courts in respect of such acts.
11
44 But
even prior to both agreements, the Secretary-General had
negotiated with the Swiss authorities and had expressed
the desire to be able to obtain suspension of judicial
proceedings involving Swiss officials when such proceed
ings might affect the work of the Secretariat.
In the minutes of the conference held at Berne in
January, 1921 regarding the subject of the League offi
cials of Swiss nationality, Dr. Van Hamel said that the
difference between the Federal Council's point of view
and that of the Secretary-General was not, perhaps, as
grea.t as at first appeared. What the Secretary- · eneral
desired for a gents of Swiss nationality was:
1. They should be entirely independent of the
local authorities as regards the exercise of their
duties. That meant that should there be any conflict
between these duties and Swiss jurisdiction, the
latter must yield to the requirements of the official
work of the a gent which should have precedence.
2. Raco nition of full equality of status as
between Swiss and other officials.
3. As regards immunity from jurisdiction, the
Secretary-General should be able, as in the case of
non-extraterritorial technical staff, to obtain suspen
sion of judicial proceedings when such prpceedings
might hinder the work of the Secretariat.4~
44Appendix I , M odus Vivendi of 1921, Article I ,
paragraph rv.
45 xtracts fr om t he M inutes of the Conference held
at Berne on January 18, 1921 between r epr sentatives 0f
54
It must be indicated, however, that no provision
to this effect was inserted in either of the two agree
ments. It mi ht be true that in practice the Swiss
authorities have tried to meet any representations made,
but it is equally true that such a practice could be
sanctioned only as a courtesy and not as a fulfillment
of an official obligation. 4
6
No residency permits required. As a rule in
witzerland no Swiss national may transfer his residency
from one canton to another without a special permit allow
ing him to do so . This rule is a part of the formalities
connected with the voting and elect ons procedures . But
officials of the Lea ue who were of Swiss nationality
were allowed to reside in Geneva, or any other canton,
without having to follow such formal.ties.
Passport privileges. It might be of interest to
notice that there was no ifferentiation as between cate ories rega ding the privile es and immunities of League
the Secretary-General of the League of ations and the
Federal Political Department wit a view to the conclusion
of an a reement on the application of Article , para-
craph 4, of the Covenant of the League. ee Hill, mrnuni
ties nd Privileges of International_Qfficial, p. 63 .
4
6
nnual Dige t of ublic nternational Law Cases,
• 313.
55
offic als who were of Swiss nationality, as discussed
above . Regarding passport privileges, however, there
was a distinction between irst and econd Category
officials. Only those
11
who by reason of their duties
were classed in the First Category" were entitled to an
"official" or "diplomatic" passport when proceeding
abroad on a mission.
Thus, in analyzing the experience of the League ,
three principal objects which an international organiza
tion ought to secure to establish a satisfactory status
for its officials are:
1. The protection of officials from the control
of national authorities.
2. The exemption from taxation of salaries paid
by the organization to its officials.
3. The fullest possible facilities for official
travel .
The Lea ue experience pointed up the difficulties
of definition of a status for officials of international
or anizations where the officials are nationals of the
state upon whose territory they carry out their functions.
In the next chapter an analysis will be made of the
status , privilege s and immunities of officials of the
League functioning out of Switzerland.
CHAPI'ER IV
PRIVILEGES OF THE LEAGUE AND ITS OFFICIALS
IN OTHER COUNTRIES
The status of the League of Nations as an "inter-
.
national personality" possessing
0
legal capacity" was
recognized by the Swiss authorities, as discussed in
Chapter III. Accordingly, through the 1921 and 1926
agreements between the League and the Swiss Federal
Council, the League officials of the various categories
were granted certain privileges and immunities which
enabled them to perform their work efficiently.
But the League of Nations, as an international
organization, had to operate through its organs and offi
cials in many other countries throughout the world,
regardless of their political qualifications or national
policies. The Covenant of the League did not restrict
the enjoyment of diplomatic privileges and immunities to
League officials performing their functions at Geneva.
1
A clause on this subject first appeared in the British
Draft Convention submitted to the Peace Conf'erence on
January 20, 1919, Article 12 of which provided:
1
League of tions Covenant, Article V_I, para-
graph 4•
57
Representatives of the States embers of the
League attending meetings of the League, the repre
sentatives of the High Contracting arties at the
Capital of the League, the Chancellor and the members
of the permanent secretariat of the League and the
members of any judicial or administrative organ or of
any com.m.ssion of enquiry working under the sanction
of the League shall enjoy diplomatic privileges and
immunities while they are engaged in the business of
the League.2
We must assume, therefore, in view of the general
and unrestricted terms of the text finally adopted that
the intention of the drafters of the Convention was to
grant privileges and immunities to members of "any judi
cial or administrative organ," or of "any commission of
enquiry," wherever it worked under the sanction of the
League.
Laws and re ulations regarding the privileges and
immunities to be enjoyed by international officials were
adopted in some countries. In Poland an ordinance in
1926 accorded exemptions to
persons sent to Poland in a permanent and official
character as representatives of international institu
tions, such as the Secretariat of the League of
Nations, the International Labour Office, the Permanent
Court of International Justice, or other permanent
international institutions of a similar character.3
2
David Hunter Miller, The Drafting of the Covenant
(New York: J.P. Putnam Sons, 1928), II, 108-09.
3A. H. Feller and Manley o. Hudson, Diplomatic and
Consular Laws and Re ulations of Various Countries
ashington, D •• : Carnegie Endowment for International
Peace, 1933), II, 1018.
58
In Hungary diplomatic immunity was ass ur ad to "members
of international courts and of commissions in case diplo
matic immunity has been accorded to them in virtue of a
treaty or by international custom."4 In 1927, the
Yugoslav Goverrunent declared th.at officials of the Secre
tariat and the International Labour Office would be given
customs exemption on the importation into the country of
articles for their own personal use.5 Also in 1927 the
government of Czechoslovakia issued an ordinance in which
it provided that officials of the League of Nations and
officials of the International Labour Office were to be
considered as persons entitled to extraterritoriality
under international law and therefore the above-mentioned
persons were to enjoy exemption from state and other
public taxes and imposts.
6
It is clear, therefore, that the principle that
"a League official is entitled to diplomatic prerogatives
wherever he exercises his functions" was well recognized.
A problem arose, however, from the fact that not every
state in the world had been a member of the League and
had, accordingly, to adhere to its Covenant regarding
4rbid., I, 677.
5International Labour Office, International Labour
Conference Re ort of the Director Presented to the Con
ference, Tenth Session Geneva: 192 , II, Jl.
6
Feller and H udson, op. cit., P• 360.
59
privileges and immunities of the League officials. It is
important, therefore, to draw a line between the status
of the officials in territories of members of the League
and that of the non-members. It is equally important,
because of the world-wide activities of the League, to
discuss the travel privileges its of'ficials enjoyed in
various countries, including their home countries, in
performance of their duties.
I. LEAGUE OFFICIALS IN TERR TORIES OF MEMBER-STATES
Perhaps the legal bas i s for granting privileges
and immunities for League officials in member-states was
found in Article 7, paragraphs 4 and 5 of the Covenant
itself. This instrument, being an international treaty,
took precedence over any national regulations of many of
the countries which had adhered to it.
The League High Commissioners
The High Commissioners of the League included the
High Commissioner for the Repatriation of Prisoners of
War, the High Commissioners in Austria and Hungary under
the Financial Reconstruction schemes of 1923 and 1924,
the representatives of the League in Austria and the
representative of the Financial Committee in Hungary, and
in later years the Commissioner acting under the Protocols
of 1926 and 1928 in Bulgaria. Two methods to secure
60
immunity and privileges for these officials were followed.
The f'irst was by informal agreements between the govern
ments of the countries where these officials functioned,
and the League organ concerned. The immunities , according
to the second method, formed the subject of a special
provision in the instrument under which the Commissioners
were appointed. The staff of the Commissioners in some
cases also enjoyed more or less extensive privileges .
Commissions of Inquiry
All investigating commissions acting under a
mandate from the League fell under this heading. They
were mostly political bodies formed to inquire into
certain disputed international issues. The best examples
of these commissions may be the Chaco Commission (1933-
34), the Lytton Commission (1932-33), the Commission to
verify the measures taken by the Spanish Government for
the withdrawa.l of non-Spanish combatants from Spain ( 1938-
39), and many others. There were also some commissi ons
sent out in connection with the work of the various tech
nical organizations of the League. The privileges and
immunities of members of these Commissions has been
clearly covered by Article 7 of the Covenant. But an
exception wa~ fowid in the rules defining the composition
and functions of the Commissions of Investigation which
it was proposed to set up in execution of the military,
61
naval and air clauses of the Peace Treaties. A report
adopted by the League Council in December, 1920, provided
that the personnel of these Commissions should enjoy
diplomatic privileges and immunities.7 In eptember, 1924,
the Cowicil a ain adopted a proposal submitted by the
Permanent Advisory Commission on Military, Naval, and
ir Questions, which contained a clause granting the
members of Investigation Commissions full diplomatic
privileges and imrnunities.
8
The astern Epidemiological Intelligence Bureau
This Bureau was considered as a part of the League
ealth Organization at
•
ingapore. Its staff was appointed
by the ecretary-General. They, including the locally
recruited staff, enjoyed full diplomatic status.
The Branch Offices
This category included the officials stationed out
of Geneva as members of the branch and liaison offices
of the Secretariat and of the national correspondence
offices of the International Labour Office. They were
7
League of ations, Official Journal, 1927, P• 29.
8
League of Nations, Official Journal, 1924,
P • 1594•
62
mostly citizens of the countries in which the offices
were situated. In many cases they were granted full
exemption from taxation on their salaries. The French
government, as an example, exempted officials of the
League Secretariat and the International Labour Office of
French nationality working in France from the "Special
Tax on Salaries ,n but did not permit them to deduct their
I
official salaries from their total income for the purpose
of the
11
General Income Tax.
11
9
The International Labour Office, however, decided
to reimburse their officials as to such part of the
"General Income Tax" paid by them as corresponded to their
official salaries, and this practice was followed by the
League Secretariat .
10
nternational Institutes under League Control
The activities of some international institutes
were integrated with certain activities of the League
organs at Geneva. For this reason these institutes, after
9
Feller and Hudson, op. cit., P• 1114.
10
rnternational Labour Office, International Labour
Conference Re ort of the Director to the Conference,
Tenth Session eneva: 192 , II, 73.
63
being autonomous bodies and juridically distinct from the
League, were placed at the Lea ue disposal. Perhaps the
best example, of these institutes was the International
Institute of Intellectual Cooperation in Paris . Article
II, paragraph 2 of its Organic Statute provided that:
The Governing Body shall determine, by a decision
approved by the Council oft e League of Nations ,
the classes of the personnel oft e nstitute which
are to enjoy the diplomatic privileges and immunities
provided for under Article 7 of the Covenant.11
Article 19 of the Staff Regulations of 1925, which
was approved by the League Council, read:
Diplomatic privileges and immunities as provided
in Article 7 of the Covenant shall be enjoyed by
the Director-General, Chiefs of Sections and of
Services, and assistants.12
In 1930, this Institute was reorganized and a new
set of Staff Regulations was issued. The question of
immunities was dealt with by Articles 27 and 28 of the
new Re ulations, which read:
Article 27. Diplomatic privileges and immunities
as provided for by Article 7 of the Covenant of the
League of Nations and recognized by Article · of
the Organic Statute of the Institute shall be con
fined to officials of a grade at least equal to that
of secretary.
The Director is instructed to conclude all the
necessary agreements with the competent administrations
11
Lea ue of ations, Official Journal, 1925,
P• 287 •
12
Ibid., P• 1466.
63
bein autonomous bodies and juridically distinct from the
Lea ue, were placed at the Lea ue disposal. Perhaps t,1e
best example of these institutes was the International
nstitute of Lntellectual Cooperation in Paris . Article
I , paragraph 2 of its Organic Statute provided that:
The Governing Body shall determine, by a decision
approved by the Council of the League of Nations,
the classes of the personnel of the Institute which
are to enjoy the diplomatic privileges and immunities
provided for under Article 7 or the Covenant.11
Article 19 of the Staff Regulations of 1925, which
was approved by the League Council, read:
Diplomatic privileges and immunities as provided
in Article 7 of the Covenant shall be enjoyed by
the Director-General, Chiefs of Sections and of
ervices, and assistants.12
In 1930, th s Institute was reorganized and a new
set of Staff Regulations was issued. The question of
immunities was dealt with by Articles 27 and 28 01· the
new Re ulations, which read:
Article 27. Diplomatic privileges and immunities
as provided for by Article 7 of the Covenant of the
ea ue of Nations and recognized by Article I of
the Organic Statute of the Institute shall be con
fined to ofricials of a grade at least equal to that
of secretary.
The Director is instructed to conclude all the
necessary agreements with the competent administrations
11
Lea ue of' ations, Of.ficial Journal, 1925,
P • 287 •
12
Ibid., P• 1466.
64
with a view to ensuring for the persons entitled the
full exercise of the diplomatic privileges and immuni
ties, subject to the terms of Article 28 of the present
Regulations.
Article 28. The diplomatic privileges and immuni
ties provided for in Article 27 are conferred on
officials in the interests of their functions. They
do not exempt the officials who enjoy them from dis
charging their private obligations or from observing
the laws and police regulations in force.
When they are obliged to claim the benefit of the
said privileges and immunities, the officials of the
Institute shall report the matter to the Director,
who shall decide whether these privileges and immuni
ties shall be waived, subject to the Director•~
Committee being informed at its next session.lJ
Other examples of these international institutes,
which were placed at the disposal of the League, were the
International Educational Cinematographic Institute, at
Rome, the International Institute for the Unification of
Private Law, at Rome, and the then projected International
School of Advanced Health Studies, which was to be set
up in Paris.
The Le~gue Special Agreements
It is of importance in this connection to remember
that the appointment of a person to some function by the
13
League of ations, Publication, International
Committee on Intellectual Co-operation, ReEort of the
International Institute of Intellectual Co-o eration
.Geneva: 1931, Vol. XII.A. , P• •
65
Council of the Lea ue or other League organ under a spe
cial treaty did not mean that he was to be considered
as a League official. It was therefore not necessary
that such a person should enjoy the privileges and immuni
ties mentioned in Article 7, paragraph 4 of the Covenant.
In 1934, the Court of Appeal of Athens held, in
regard to the Greco- Bulgarian 1ixed migration Commis ion,
that:
embers of mixed Commissions such as the present
one did not exercise their functions for and under
the League of ations; they performed independent
duties. They could not be deemed to be agents of
the League within the meaning of Article 7, paragraph
4 of the Covenant an could not, therefore
14
claim
jurisdictional immunity under the article.
League Status in the Territories of on-Member States
In some cases League officials had to carry out
missions in non-member states. League authorities, there
fore, had to insure that those officials would enjoy a
suitable status within the non-member states. Perhaps
one of the best examples of such an arrangement was the
visit, in 1924, of the M osul Commission of Inquiry to
1
4Annual Digest of Public I~ternational Law Cases,
Bein a Selection from the Decisions of International and
1ational Courts and Tribunals London: Longmans, reen
and Co., 1933-34), • 387. ( Hereinafter referred to as:
~nnual Digest of ublic International Law Cases (1933-34)~
66
Ankara, the capital city of Turkey, which was not a League
member at the time. Another example is the Cornmission of
Inquiry into the Control of Opium in the Far East , which
carried out, in 1930, an investigation in the Philippines .
This Commission was .ranted by the government of the
Philippines diplomatic privileges including freedom from
customs examinations.
The Case of the United States
The United tates of America held the attitude
that diplomatic privile es and immunities were to be con
ferred only upon those "who are sent by one state to
another on diploma tic missions. nl.5 This attitude was
first laid down in connection with a case that arose in
1927. An official of the International Labour Office,
a British subject , who was on his way to Australia on
Leave, was arrested and fined in California for a disturb-
ance of the peace . hen the British Embassy at Vi ashing-
ton, n.c., inquired about the status of its subject as an
International Labour Office official, the United States
Department of State replied:
1
5united tates Department of State, Foreign Rela
tions of the United States, DiElomatic Papers ( ashington,
n.c.: United States Government Printing Office, 1942),
I, 413 •
67
Under customary International Law diplomatic privi
leges and immunities are only conferred upon a well
defined class of persons, namely those who are sent
by one State to another on diplomatic missions. Offi
cials of the Lea ue of Nations are not, as such,
considered by the Department to be entitled to such
privileges and immtmities under enerally accepted
principles of International L~w but only under special
provisions of the Covenant of the League which can
have no force in countries not members of the League.
In the estimation of this Department the executive
authorities of this Government would not be warranted,
under our law which is declaratory of International
Law, in according to officials of the Lea ue of
Nations diplomatic privileges and immunities in the
United States since such persons are not comprehended
in the definition of diplomatic officers contained in
our statutes.
I may add that such an official would customarily
be given a diplomatic visa on the basis of his diplo
matic passport arrl. accorded the courtesies usually
extended to holders of such passports. You will
appreciate the fact, however, that no assurance can
be given that such a visa would be re arded as en
titling the holder to the privile es and immunities
of a diplomatic officer provided for in the laws of
the United tates.16
The un·ted States authorities, it is true, granted
the League officials customs facilities and free entry
privileges as a courtesy.
1
7 But the basic practice of the
United States as indicated even after that country became
16
1oid., PP• 414-16.
17
reen Hackworth, Digest of nternational Law
(Washington: United States overnment Printing Office,
1940-44), IV, 422.
68
a member of the International Labour Organization in 1934•
The officials of this organization who set up their branch
office in Washington , D.C., neve~ enjoyed tax exemption.
The Case of Russia
In the early years of its existence, the League
of Nations faced great difficulty in regard to its offi
cial status in Soviet Russia . In response to an invita tion from the Supreme Council of the Allies to send a
Commission of Investigation to Russia , the League Council
in March, 1920, asked the Soviet authorities about the
status they would give the proposed Commission in the
Russian territory. The Central Executive Committee of
the Soviets replied that:
it consents, in principle, to the visit of the Dele
gation of the Lea ue of Nations , and that on Soviet
Russian Territory they will be given the same liberty
for studytng the situation as are enjoyed by the
representatives of oth~r Powers within the boW1daries
of a Sovereign State.l~
But the Soviet authorities put forward conditions which,
in the opinion of the Council , practically amounted to a
refusal of any recognition to the proposed Commission.19
18
League of Nations , The Fifth Session of the
CoW1cil of the League of Nations , Rome, May 14-19, 1920.
See P• 113.
19
Ibid., P• 119.
69
Finally, the whole project of sendin the Commission was
dropped. W hen, in 1920, the League Hi gh Commissioner for
Repatriation of Prisoners of W ar went to Moscow, he was
officially received as a private individual only.
The Soviet authorities were, on the other hand,
willing to make concessions in regard to the status of
League officials w hen the question arose in 1922 of
extending the wor k of the Lea ue Health Organization to
Soviet territory and setting up offices in Moscow and Kiev.
The necessary steps were taken in 1922 by the Soviet
authorities for granting the representatives and agents
of the Health Organization the necessary privileges and
immunities.
20
III. LEAGUE OFFICI AL I N T IR HOME COUNT RIES
The status of the League officials in their home
countries is of practical importance in this study. One
question was whether or not those officials were entitled
to immunities and privileges in their own countries under
Article 7 of the Covenant.
20
League of ations, Health Committee: Minutes of
the Fourth Session,( Geneva: August 14-21, 192~. League
of Nations Document c. 555 • • 337.1922, P• 47•
70
Tax Exemption
It was no t ed that "in compiling the scale of sal
aries for League officials, the fact that salaries were
free from income tax was taken into consideration. •
21
But
the tax exemption of the League salaries was by no means
a universal principle. In the meantime the number of
countries which levied income tax on Lea ue officials'
_,
salaries was very small . The Le al Adviser of the ecre
tariat, during his negotiation with the Swiss authorities
in 1921, had only referred to one overnment, namely, the
United States of America. bile the United States was
not a member of the League, several of its citizens were
employed as League officials •.
22
But the number of govern
ments allowing such exemptions seemed to be increased
later in the same year. Speaking of the situation exist
ing, the Secretary-General mentioned difficulties with
more governments regarding this matter. He added that the
Meeti
21 ·
Lea ue of Nations , _ R _e_c_o_r_d_s_o-e:f_t_h--:-e_T~h_i_r_d_A_s_s_e_mb __ ly..._,
of the Committee Statement b the Secretar -
Geneva: 1922, P • •
22
rn later years United States Revenue Laws were
modified in such a way that Lea ue officials of the United
States nationality residi in Geneva could claim tax
exemption on their Lea ue salaries. Martin Hill, Immuni
ties and Privile es of rntern tional Officials, The
Exper ence oft e League of Nations ashington, D. C. :
Carnegie Endowment for International Peace , 1947), P• 48.
71
resolution of the econd Assembly had en adopt ad "in
order to include those governments to follow the example
of the other Governments.
112
3 On the basis of these repre
sentations, several other countries exempted their citizens
in the League services.
Jurisdictional Immunities
In a circular, o. 316, regarding the rights con
ferred and the obli ations imposed upon members of the
Secretariat of the Lea ue, in 1922, the Secretary-General
declared:
Immunity from jurisdiction in Switzerland does not
preclude the lodging of a complaint with the offi
cial's national authorities should such action appear
desirable, althou hit is of course always understood
that the officials of the League of Nations are not
in any way responsibl~ as regards their duties, to any
national overnment.2~
From this statement, therefore, it is clear that subjec
tion to the jur·sdiction of the home country, which was
practiced in the case of diplomatic agents, had a differ
ent aspect in the case of League officials. It is true
that the principle laid down in Article 7 of the Covenant
23
League of ations, Third Assa bly, Minutes of the
Fourth Committee, A Statement from the Secretary-General
(Geneva: 1922), P• 58.
2
~ea ue of ations, Document c.66.1926.v.
72
clearly implied that jurisdiction over officials in all
member states should be restricted in the interests of
the Lea ue. But it was equally true on the other hand
that national courts should not be prevente from acting
when these interests were not involved. For illustration
of this point, it may be of interest to mention that in
a private law suit brought in France against the Second
ecretary-General of the League , a Paris Court of First
nstance overruled the defendant's claim that he was
entirely exempt from jurisdiction in all states members
of the League.
2
5
Exemption from Military Service
There was no sign of a general rule or uniformity
regarding the policies followed by member states having
compulsory military service towards the exemption, or
deferment of their nations who were League officials.
Most governments, however, were ready in peace time to
arrange for deferments of the officials concerned. But
at the time of a general mobilization, men subject to
military service residing abroad normally had a period of
25
Annual Digest of Public
(1935-36), P• 395.
nternational Law Cases
I
I
73
deferment in any case, while some governments made express
provisions especially for the Lea ue officials. For
further illustration of this point it may be of interest
to cite some practical examples. Special deferment
arran ements were made for the Swedish officials in the
League. The orwe ians were exempted. The French Govern
ment made a special deferment for cerr.ain French officials.
The etherlands decree of mobilization of 1939 exempted
its officials of the League. Most of the officials of the
International Labour Organization were either exempted
from military service in their countries or were granted
other privileges by a special deferment arrangement.
26
witzerland, Canada, the United Kingdom, Lithuania,
Ireland, and Norwa are only a few examples of other
states which had special military service privileges for
tl1eir officials in the League.
2
7
IV. TRAVEL FAC LITIES FOR LEAGUE OFFIC ALS
It has already been indicated that the League of
ations, as a eneral international organization, had to
26c. J. Fambro , How to in the Peac e ( hiladelphia,
ew York: J. B. Lippincott Co., 1942), PP• 244-47 •
27
Ibid.
74
function on a world-wide basis. Its agents had to be able
to travel as freely as possible from one country to another
in the performance of their official duties. The League
activities took place, in many cases, in territories of
non-member states as well as those of members. The League
officials , therefore, on the basis of Article 7, paragraph
4 of the Covenant were regarded as being entitled to the
s ame facilities as re ular diplomats enjoy.
Passports and Visas
In a resolution adopted by the League Assembly
December 15, 1920, it was declared:
The Seer tary-General of the Lea ue of Nations
shall deliver to Members of the Secretariat and offi
cials of the League an identity card certifying the
identity of the holder and the nature of his official
duties . On presentation of this card, and at the
request of the ecretary-General, the government of
which the holder is a national shall deliver or cause
to be delivered by any of' its diploma tic represent.a
tives , or by its consular agent at Geneva , a diplomatic
passport permitting the official to carry out the
mission with which he is entrusted with the benefit of
all privileges and immunities prcvided for in Article 7
o the Covenant , and valid for duration of such mission
n the limits indicated by the Secretary-General.
Diplomatic visas will be given gratuitously whenever
necessary , on the request of the Secretary- General of
the League of Nations , by the diplomatic or consular
a ants of the Powers in whose territory the official
will be travelling in accomplishment of his m.ission.28
28
Lea ue of ation, First Assembly, Plenary Meet ings ( eneva: 1921), PP• 557-58.
75
The Fourth Committee of the Third Assembly of the
League raised, in 1922, the question of free visas and
passports for the League officials. The Assembly
authorized the Secretary-General to communicate to
those countries which have not yet granted free visas
and passports required by the League's officials
the earnest hope expressed by Members of this Commit
tee that these officials will in the future receive
more favourable treatment.29
The large majority of member-states, in practice, issued
diplomatic passports to their nationals who were in the
First-Category officials group in the Secretariat or the
International Labour Office. Some states issued such
passports to all their nationals in these institutions
regardless of their categories.
The practice of non-member states varied widely
from one country to another. A diplomatic passport was
denied to a United States citizen who was a judge of the
Permanent Court on the grounds that the United States
was not a member of the Court.JO But when in 1919 a
United States citizen was appointed as Under Secretary
General, on the assumption that the United States would
be a member of the League, he was ranted a diplomatic
ings
29
Lea ue of Nations, Third Assembly, lenary Meet-
(Geneva: 1922), II, 220.
455.
JOHackworth, Digest of International Law, III,
76
passport.3
1
The practice of the United States later on
was summarized in a despatch from the State Department to
the American Consul at Geneva, July 24, 1934, which in
part read:
With respect to the general question of special
passports for the Americans serving ·on the League of
Nations Secretariat, it may be said that special
passports may be issued to persons on League of
Nations business when the Department has some special
interest in their work, and it will be presumed that
any American in the League Secretariat with the rank
of Member of Section or higher is performin work of
that character, though the presumption will be sub
ject to rebuttal in any specific case. In this con
nection it will be pointed out that the issue of
special passports is determined by the Department
with respect to its own interests and special pass
ports are not issued to persons as a matter of
right. 32
The question of diplomatic visas was not of great
complexity, as the rule followed was to issue diplomatic
visas on diplomatic passports . uch visas were also
iven, in the case of League officials, on ordinary pass ports. It may be of interest to mention that even states
like the United Kingdom, in which the practice of issuing
diplomatic passports did not exist, issued diplomatic
visas.33 As for the overnment of the United tates, this
32
Ibid., PP • 449-50 .
3
3The United Kingdom abolished diplomatic pass ports in 1918. Hill , op. cit., P• 71.
77
practice was confirmed by the statement made by the State
Department in 1927 which has been quoted above in this
chapter.34 Not only free entry privileges were granted
to the Lea ue officials en route through the United
States, but also certain officials of the League Secre
tariat, transferred to the United States in 1940-41,
were given diplomatic visas regardless of the type of
passports they held.
League Passport
The Secretary-General of the League suggested to
the Ninth Session of the Council in September 1920 that a
body of experts should be formed and requested to study
the practical steps which should be taken to enable
persons employee. by the League to take advantage of
the facilities provided by Article 7 of the Covenan~,
especially as regards journeys undertaken by them.3~
In October of the same year the Conference on Passports,
Customs Formalities, and Through Tickets had the Secre
tary-General's proposal on its a enda, and after a long
debate it made the following proposal:
3
4united tates Department of tate, Foreign Rela
tions of the United tates, , 413.
35
Lea ue of ations, inutes of the inth Session
of the Council of th League ations {Paris: eptember
16-20, 1920). ee P • · 113.
78
In order to assist the members of the Secretariat
and the agents of the League of Nations in the exer
cise of their duties ••• the Secretary-General of
the League of Nations should request the delegations
of the Members of the League to grant to the Members
of the Secretariat and a gents of the League, pass
ports of a special type. These passports would be
valid without visa in the territories of all the
States Members of the League. Powers other than those
Members of the League would be invited to give these
passports the benefit of a diplomatic visa. The
Secretary-General of the League of Nations would be
responsible for the granting of these passports and
for their recovery from the holders as soon as the
latter ceased to be entitled to them.
Permanent passports would be granted by the
Secretary-General to the permanent personnel of the
League, and passports valid for the duration of their
duties only to the personnel attached only temporar·1y
to the Secretariat.
A list of names of the holders of passports granted
or withdrawn would be sent periodically by the Secre
tary-General to all the Governments.36
This proposal, however, suffered defeat, after the
Assembly's Second Committee failed to adopt it. Several
reasons were given by this Committee for not adopting the
proposal, among which were the following:
While there is no doubt that Article 7 of the
Covenant grants to officials of the League the enjoy
ment of diplomatic privileges and immm1ities during
the discharge of their duties, nevertheless the pro
posed formula, if it were not modif ed, would give
36
Leag ue of ations, Minutes of the Tenth Session
of the Council of the League of Nations {Brussels: ·
October 20-28, 1920). See P• 279.
79
rise to difficulties of a legal and practical nature.
From the legal point of view the issue of a pass
port is an administrative act, an act of sovereignty
and authority. Now, it is evident that the League of
Nations is not a State possessing a soverei gnty of
its own, as it is obvious that there can be no "na
tional" of the Secretary-General.
On the other hand, it is not possible for a State
to delegate one of their rights of sovereignty to
the Secretary-General by means of a resolution passed
by the Assembly; this would necessitate a new inter
national agreement, which would have to be submitted
for ratification by the Governn1ents concerned.37
This decision put an end to the idea of a special
League of Nations passport.
Letter de Mission
It was the practice of the Secretar y-General for
many years, after the defeat of the League pa ssport pro
posal, to supply the League offi ci als going on missions
with a document known as letter de mission. The text of
this document is as follows:
I, the undersigned, Secretary-General of the
League of Nations, hereby communicate and certify to
all Hi gh Authorities concerned that---------- is an
Official of the League of Nations within the meaning
of Article 7 of the Covenant of the League of Nations
and, in accordance with the said article, is entitled
when engaged on the business of the League, to enjoy
diplomatic privileges and immunities. The present
Letter de Mission is valid until •••
3
7
League of N a t ions, First Assembly, Plenary M eet
ings, P• 557.
80
In 1926, the Secretary-General of the Passport
Conference proposed that, "in urgent cases, persons carry
ing lettres de mission and also provided with their
ordinary passports may at least provisionally be exempted
from the formality of a visa.u3B At the opening discus
sion of the Conference he explained the term "urgent
cases" by saying, "a case where there was danger of a
breach of the peace, and delays of any kind might be
serious.
11
39 In such cases, he queried:
Mi ght no t persons carrying lettres d e mission signed
b y the Secretary-General of the League and containing
the name and photograph of the holder be provisionally
exempted from the formality of a visa,
4
Brovided they
also carried their ordinary passports?
After a long discussion the following recommendation was
finally adopted by the Conf'erence:
In order to facilitate the rapid movement of
missions under the authority of the League of Nations,
the Conference recommends that, in urgent cases when
it would not be possible to obtain the regular visas,
persons in possession of the necessary papers issued
by the Secretary-General of the Lea gue and also pro
vided with regular passports, should be enabled by
the countries of destination or transit to fulfill
their duties without delay. In such cases the
Secretary-Genera). will immediately noti:fy the Govern
ments concerned.41
3
8
League of Nations Document, c.423.M.156, 1926.
vrrr, 161-62.
39
rbid.,
P•
162.
4
olbid.
4libid.,
P•
166.
81
Many governments considered this recommendation
favorably, and many League officials accomplished long
journeys on behalf of the League, during which they showed
no travel documents other than their Letters de Mission.
The only refusal to accept this recommendation came from
the Polish Government . 4
2
The Japanese Government, which
at first favored it,43 changed its attitude after Japan's
withdrawal from the League.44
Customs and Transportation Facilities
It is a universal custom that any person holding
a diplomatic passport may enjoy courtesies and facilities
in regard to customs formalities. Some governments issued
special documents, known as recommendations de frontiere,
to League officials traveling in their official capacity.
This document was to guarantee that full facilities and
courtesies were to be granted at the frontier of various
countries. It was mentioned above in _ this chapter that
the United States of America was prepared to grant customs
facilities to Lea gue officials en route through that
4
2
Lea gue of Nations, Official Journal, 1929,
P•
311.
4
3
League
of Nations, Official Journal, 1928,
P•
1981.
44
Lea ue of Nations Publication, 1937, Vol. V r.4,
P• 51.
82
country.45
In 1930, however, the League of Nations itself
adopted a resolution to that effect. This resolution
concerned "Communications of Importance to the League of
Nations at Times of Emergency,
91
and recommended that
facilities be granted to aircraft and motor vehicles.4
6
The aircraft and motor vehicles affecting transport of
importance to the working of the League were defined as
those used to convey agents of the League of persons
entrusted by the Lea ue with a special mission, or
League correspondence, or official representatives
of States Members of the League, or delegations to
the Council, Assembly and Conferences of the League,
and the Corr~~pondence of such representatives or
delegations.!4-l
The motor vehicles were to bear a distinctive identifica
tion mark, either a fla g or a plate marked (S.D.N.),
which stands for "Societe de Na ti ons. tt48
Travel facilities for Lea ue of~icials, in general,
did not constitute a great problem for the League.
Courtesies were granted by most, if not all, governments
members and non-members of the League.
430.
45Hackworth, Digest of International Law, III,
4
6
League of
Meetings (Geneva:
47
rbid., P•
Nations , leventh Assembly, Plenary
1929), PP• 160-72.
83
Even a large number of shipping companies and air
lines granted the League the reductions and facilities
normally accorded to national governments in respect to
official travel by their diplomatic representatives.49
V. THE EXPERIENCE OF THE PERMANENT
COURT OF INTERNATIONAL JUSTICE
The Permanent Court of International Justice start
ed its functions early in 1922. The juridical basis for
its status in the Netherlands was Article 19 of the
Statute of the Court, in the case of the judges, and
Article 7, paragraph 4 of the Covenant in the case of the
staff of the Registry. These were the subject of communi
cation from the Netherlands Ministry of Foreign Affairs
to the authorities of the Court between the years 1922
and 1927. Until 1928 the diplomatic prerogatives of
judges and officials of the Court were based on these
unilateral regulations and not on any arrangement between
the Netherlands authorities and the Court on the lines of
the arrangements arrived at in Switzerland.
49
League of Nations, Official Journal, Special
Supplement no. 118 (Geneva: 1930), P• 121.
84
Judges and Officials not of Netherlands Nationality
Judges and officials of the Court were divided into
two classes in regard to their priv leges and immunities.
Judges and Registrar. The status of the judges
and the Registrar was assimilated from the beginning to
that of the heads of missions to The Hague . In a memo
randum prepared by the Registrar for the League Council,
in 1927, it was stated that
the system followed in practice called for no special
comment in regard to the inviolability and extra
territoriality of members of the Court , or their
immunity from civil and criminal jurisdiction. SO
In 1928, an agreement was confirmed to assimilate members
of the Court and the Registrar to heads of missions , all
enjoying not only the diplomatic privileges and immuni
ties, but also the special facilities granted to heads of
missions. This agreement, it should be mentioned , con
tained no reference to the possibility of waiving these
privileges and immunities for the member~ of the Court and
the Registrar. The Netherlands authoritie s adopted a
series of rules, in 1922 and the following years, to
exempt the judges and the Registrar from not only the
income tax, but also taxes such as those on bicycles and
50League of Nations, Official Journal , 1928,
P• 984•
85
automobiles. In its report on the salaries of the members
of the Court, the Third Committee of the First Assembly
proposed that "in order to equalize the position of all
the judges their salaries should be exempted from taxation
in every country. n5l The decision was reached that in
cas es where judges had to pay taxes on their salaries
t hey should be reimbursed by the League . 5
2
The judges
and the Registrar were also granted, in 1922, customs
exemptions in respect of goods for their personal use only.
ome difficulties arose in the earlier years with
regard to the identity cards of the judges and the
Regis t rar . The M emorandum of 1927 by the Registrar to
the Lea ue Council reads, in part:
i ngs
The question of . identity cards cannot be regarded
as settled so far as the Court is concerned. The
estab l ished practice at The Hague, as in other capi
tals, is that members of the diplomatic corps are
furnished with special cards showing their diplomatic
status at a glance to the authorities, police officers,
etc. The importance, indeed the necessity, of cards
of this kind is beyond question, for without such
cards, of which detailed particulars should be cir
culated to the competent authorities and police offi
cers throughout the country, it would be much mgre
diffi cult to avoid the occurrence of incidents.~3
This problem subsequently has been solved, as the
5
1
Lea gue of ations, First Assembly, Plenary Meet
( eneva: 1920), P• 748.
,5Zlbid., P• 749•
53
League of ations, Official Journal, 1928, P• 984.
86
Netherlands Ministry of Foreign Affairs issued identity
cards, similar to those issued to heads of diplomatic
missions, to all members of the Court and the Registrar,
and, in 1939, the same procedure was extended to the
Deputy Registrar.
The situation in regard to the families of the
judges was not altogether clear, according to the Regis
trar's Memorandum of 1927. But the 1928 Agreement
expressly provided that the wife and unmarried childr n
of the judges and Registrar shared the status of the
head of the family "if they 11 ve with him and have no
other occupation.n54 The private staff (private secre
taries, servants, etc., of the judges and the Registrar)
enjoyed "the same position as that accorded to the private
staff of the heads of diplomatic missions.
11
5.5
With regard to the dW1ation of privileges and
immunities, the following official statement was made in
1936:
54
Appendix III, General Principles and Rules of
Applications Regulating the External Status of the Mem
bers of the Permanent Court of International Justice,
A.tr.2 (bJ. -
55
Appendix I II, A.II .2 (e).
87
When a member of the Court dies, it has been the
practice of the Netherlands authorities to allow the
widow of the deceased to retain his immunities for
a certain time; in a recent case, thi~
6
practice was
confirmed by a written communication.~
Other Court officials. The Netherlands authorities
have made a distinction between the treatment of the
higher officials of the Court and the other members of
the Registry staff. The higher officials corresponded,
more or less, to the First Category officials in Geneva.
They were accorded, in principle, as regards diplomatic
immunities and privileges, the same status as diplomatic
officials attached to the legations of foreign powers at
The Hag1.;e • .57 Other members of the staff, corresponding
to the Second Category officials at Geneva, were not
defined as to status in the 1928 arrangement but, accord
ing to Hudson, it was the same in every respect as that
of corresponding officials in the diplomatic missions at
The Hague except in customs matters, where it was more
favorable.5
8
5
6
Permanent Court of International Justice, Twelfth
Annual Report of the Permanent Court of International
Justice, June 15th, 1935 - June 15th, 1936. Publications
of the Court Series E, No. 12, PP• 51-52.
57
Appendix , A, I.
5BM~nley o. H udson, The Permanent Court of Interna
tional Justice (New York: The Macmillan Company, 1934).
See P• 331.
88
According to the Rules of Application, the Registrar
of the Court, in case of an official violating e. law or
regulation, with the President's approval, might waive
the immunity accorded to the official.59 The author of
this study could not find any recorded case where the
power of waiver had been used. Waiver in the case of
civil proceedings, however, was not provided for, although
it can be assumed that had a case arisen the rules relat
ing to criminal cases would, so far as they were applica
ble , have been followed.
Exemption from taxation, including the special
taxes which have been mentioned with reference to the
judges and the Registrar , was granted to the Court offi
cials . Exemption from customs duties was also granted
to all non-Netherlands officials in respect of goods for
their personal use.
It may be of interest to note that difficulties
regarding the identity cards of the officials of the Court
were not of less importance than that of the judges and
the Registrar, but the 1928 Agreement, again, met these
difficulties by the following provision:
59
Appendix III , B.I I . 2 (d).
89
The Netherlands authorities will not object to the
competent authorities of the Court issuing identity
cards to officials of the Court belonging to the
various categories, so that these officials can, i£
need be, immediately furnish evidence of their exter~
status according to the present Principles arrl Rules.
There were two types of' cards, for higher• of'ficials,
and other officials, respectively. These cards were made
valid only for very short periods of time i11 order to
avoid any possfbility of abuse.
Here again the position of the families of offi
cials, before the conclusion of the 1928 Agreement, was
uncertain.
61
In the A greement it was provided, as
referred to above, that "the wife and unmarried children
of the higher officials of the Court will share the status
of the head of the family if they live with him and have
no other occupation.u62 The same rule was applied in
practice to the families of other officials. Automobiles
belonging to the judges and orficials of the Court were
given, according to a request made by the Netherlands
authorities in 1935, a special plate bearing the letters
(CDJ) or (Cour de Justice).
P• 984.
60
Appendix III, B. rrr .1 (c).
61
League of Nations, Official Journal, 1928,
62
Appendix III, A.rr .2 (b).
90
Judges and Officials of Netherlands Nationality
A distinction, similar to that introduced in Geneva,
was made by the Netherlands authorities between judges
and officials of the Court based on their nationality.
While the status of judges and officials of the Court
has been discussed above, it is of importance to explain
the status of those judges and officials of Netherlands
nationality. Their only prerogatives, by comparison,
were limited to the following :
(a) that they should not be answerable in the
local courts for acts done by them in their official
capacity and within the limits of their powers, and
(b) that the "salaries paid to them out of the
budget of the Court!' will be exempt from direct taxes.
6
3
Unlike the regime in Switzerland, these provisions
have affected bo~h categories of officials of Netherlands
nationality. As far as jurisdictional and fiscal immuni
ties of other Netherlands officials are concerned, little
or no distinction was made in practice between the two
categories. The Netherlands officials of the Court were
not exempted from the military services. The author of
this study could not find any recorded interference with
the work of the Registry which occurred as a result of
this practice.
63
Appendix III, A.I •3•
•
91
The instructions for the Registry, issued in accord
ance with Article 23, paragraph 3 of the Rules of the
Court, provide:
The Registrar will take all steps necessary to
preserve the diplomatic character conferred upon
officials of the Re istry under Ar~~cle 7 of the
Covenant of the League of Nations.~
The experience of the League of Nations in Switzerland,
it may generally be concluded, sug ests that an interna
tional organization and the state upon whose territory
the organization seeks to carry out its international
functions will find certain interests in conflict, giving
rise to many practical problems. Some of these problems
were not easy to solve because of the uncertain provisions
of international law and practice. Many of such problems
had to be resolved by ne gotiation and compromise, which
left both parties with some feeling of dissatisfaction.
The assimilation of League officials to the diplo
matic corps in Bern (Switzerland) had certain limited
advantages which ought not be overlooked. International
officials, espec i ally those in the higher positions of
authority must deal constantly with national diplomatic
officials. League experience demonstrated the advantage
64
Appendix III.
92
of placing the high official of the international organ-
ization on an equal footing, in terms of prestige and
di nity, with other officials of similar rank in the
national services.
CHAPI'ER V
PRIVILEGES AND I:MMUNITIES OF THE UNITED NATIONS
I. LEGAL TATUS OFT E UNITED NATIONS
Many lessons provided by the experience of the
League of Nations operations in Switzerland have been
taken into account in working out the arrangements for a
satisfactory legal status for the international officials
in the service of the United Nations throughout the world,
especially in the United States . But , Wlfortunately,
many of the same difficulties, misunderstandings and gaps
which existed in the League-Swiss relations remain to
plague the relationship between the United Nations and
the United States. It is true that the formula "diplomatic
privileges and imrnuni ties" and the practice of assimila
tion of the international staff to the diplomatic corps
have been discontinued. But in practice and in the
terminology of pertinent treaties, in the United States
legislation, and in popular usage the term "diplomatic
privileges and immunities" remains to create misunder
standing and confusion.
Authorities who drafted the United Nations Charter
refrained from stating in the Charter that the organiza
tion should have international personality. They
94
considered that this would be implicit in the body of
legal provisions in the Charter. This caution, no doubt,
was necessary at the time to reassure certain parliaments
who were worried by the idea of super-state or federal
world government. However, provision was made for legal
personality under municipal law. Article 104 of the
Charter provided:
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
fulfillment of its purposes.
The General Assembly of the United Nations has
interpreted the "legal personality" by adopting, in 1946,
a Convention on the Privileges and Imm.unities of the
United Nations. This Convention, which is based on
Articles 104 and 105 of the Charter, contains various
articles which are of interest for present purposes and
have become standard provisions applicable to a great
number of international organizations. By the 18th of
June, 1956, the Convention had been ratified by fifty
four States, one of which (Turkey) made certain reserva
tions.
Article I of the Convention, dealing with "Juridical
Personality," states:
The United Nations shall possess juridical personal
ity. It shall have the capacity (a) to contract,
95
(b) toacquire and to dispose of immovable and movfble
property, and (c) to institute legal proceedings.
Article II of this Convention, which contains
several sections, bears the heading, "Property, Funds,
and Assets." It deals in turn with immunity from juris
diction, inviolability of the premises and archives of
the Organization, exemptions, etc. The text of the first
paragraph of this Article, which will serve as a pattern
for numerous provisions of this kind that may be adopted
later, reads:
The United Nations Organization, its property and
assets, wherever it is located and by whomsoever
held, shall enjoy immunity from every form of legal
process except in so far as in any particular case
it has expressly waived its immunity. It is, however,
understood that no waiver of
2
im.munity shall extend
to any measure of execution.
The Case of Bernadotte
The status of the United Nations as an internation
al personality possessing le gal personality and capacity
to sue for international claims was determined by the
decision or the International Court or Justice on March
16, 1949.
Count Folke Bernadotte of Sweden was assassinated
in Jerusalem on September 17, 1948 while on tour as
1
united Nations Treaty Series, I, 169, Reg. no. 8.
2
Ibid., I, 171.
96
United Nations Mediator in the Palestine dispute. Colonel
Andre P. Serot, a United Nations observer, was murdered
at the same time. Ralph Bunche, personal representative
of the Secretary-General of the United Nations, immedi
ately reported the incident to Moshe Shertok, Foreign
Minister of the Provisional Government of Israel.
Dr. Bunche said the act was committed by "Jewish assail
ants" and was
11
an outrage against international community
and an unspeakable violation of elementary morality."
He continued:
This tragic act occurred when Count Bernadotte,
acting under the aut hority of United Nations, was on
official tour of duty in Jerusalem, and in the pres
ence of liaison officers assigned to him by the Jewish
authorities. His safety, therefore, and that of his
lieutenants under the ordinary rules of law and order
was a responsibility of the Provisional Government
of Israel whose arme forces and representatives
control and administer the area.
This act constitutes a breach of the truce of
utmost gravity for which the Provisional GQvernment
of Israel must assume full responsibility.J
Apparently the Israeli Government recognized its
full responsibility. Major Aubrey Eban, the Israeli
Government's representative before the Security Council,
issued a statement on September 18, expressing his
)"Message f'rom Representative of the Secretary
General of the United Nations to the Foreign Minister of
Israel, September 17, 1948," Department of State Bulletin,
19:399, September 26, 1948.
97
government' s "horror and grief" at the murder, and adding:
Since the tragedy took place in territory under
the occupation of the forces of Israel, the Security
Counci l will soon be informed of measures, most
drastic and far reaching in character, with the aim
of bringing the criminals to justice and of reaching
out with the hand of lawful authority into any
circles wherein a degree of responsibility for such
events may be found. There can be no other response
to this tragedy that to re-dedicate ourselves whole
heartedly to a concerted effort to achieve an early
peaceful adjustment.~
The records of diplomacy indicate a number of cases
concerning the arrest, assault, or assassination of high
officials of national governments in foreign territory.5
But these are cases where only States, as an international
person, were involved. In these cases the state of the
injured person usually demanded formal amends, heavy
indemnities , and punishment of guilty parties. It is
important to note that the injury or assassination of a
national official of high rank in foreign territory or
with complicity of a foreign government is an offense
a gains t the law of nations.
6
¾"nited Nations Bulletin, V:756-63, October 1, 1948.
5
Green Hackworth, Digest of Interna,tional Law
(Washi~ t on: United States Government Printing Office,
1940-44) , IV, 507, 708.
6
Manley o. Hudson, "The Geneva Conventions on
Terrori sm, " International Legislation ( ashington:
Carnegi e Endowment for International Peace, 1931-50),
VII, 562.
98
But the case of Count Folke Bernadotte differed
from most of the precedents. He was an official, not of
a particular nation or s.tate, but of the United Nations,
an international organization. The question arose,
therefore, whether or not the United Nations is an inter
national organization, possessing a status of "interna
tional person" entitled to an international claim. For
legal assistance on this matter, the General Assembly of
t h e United Nations requested an advisory opinion in 1949
from the International Court of Justice, on the following
question:
I. In the event of an agent of the United Nations
in the performance of his duties suffering injury in
circumstances involving the responsibility of a
State, has the United Nations, as an Organization,
the capacity to bring an international claim against
the responsible de jure or de facto government with
a view to obtaining the reparation due in respect of
the damages caused (a} to the United Nations, (b) to
the victim or to persons entitled through him?7
The Opinion of the Court on this question is of
great importance, as it determined the legal status or
the United Nations Organization. For the present purpose,
it 1s essential to quote from the Court's opinion, which
appeared in its report:
In the opinion of the Court, the Organization was
intended to exercise and enjoy, and is in fact exer
cising and enjoying, functions and rights which can
7
rnternational Court of Justice Report,s, 1948,
(Geneva: 1949), P• 174.
99
only be explained on the basis of the possession of
a large measure of international personality and the
capacity to operate upon an international place. It
is at present the supreme type of international
organization, and it could not carry out the inten
tions of its founders if it was devoid of internation
al personality. It must be acknowledged that its
Members, by entrusting certain functions to it, with
the attendant duties and responsibilities, have
clothed it with the competence required to enable
those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion
that the Organization is an international person.
That is not the same thing as saying that it is a
State, which it certainly is not, or that its legal
personality and rights and duties are the same as
those of a State. Still lass is it the same thing
as saying that it is a "super-State," whatever that
expression may mean. It does not even imply that all
its rights and duties must be upon the international
plane, any more than all the rights and duties of a
State must be upon that plane. What it does mean is
that it is a subject of international law and capable
of possessing international rights and duties, and
that it has capacity to waintain its rights by bring
ing international claim.~
This legal opinion has supported the view th.at the
United Nations possess an international personality.
rr. PRIVILEGES AND IMMUNITIES OF TEE ORGANIZATION
Once the legal status of the United Nations, or
any international organization for that matter, has been
established, the question of its privileges and immunities
may be a matter of a principle of international law and
100
practice. The establishment of the status of the United
Nations as a legal and international personality entitled
it immediately and without too much difficulty to certain
privileges and immunities according to the primary prin
ciples of international law. Following are the most
important privileges and immunities of the United Nations
as an international organization.
Inviolabilit1
The United Nations General Convention on the Privi
leges and Immunities of the United Nations, which was
adopted by the Gene~al Assembly on February 13, 1946,
9
provides, in Section J:
The premises of the United Nations shall be invio
lable. The property and assets of the United Nations,
wherever located and by whomsoever held, shall be
immune from search, requisition, conf'iscation, expro
priation and any other form of interference, whether
by executive, administrative, judicial or legislative
action.10
The same Convention has also provided that the
archives of the United Nations and, in general, all docu
ments belonging to it, or held by it, shall be inviolable
9
Appendix IV.
10
Appendix IV, Article 11.3.
101
wherever located.
11
The inviolability of the United
Nations headquarters is also guaranteed by the 1947
Agreement between the United Nations and the United
States, which provides:
The Headquarters district shall be inviolable and
that federal, state or local officers, or officials
of the United States, or administrative, judicial,
military or police shall not enter the Headquarters
District to perform any official duty therein except
with the consent of, and under conditions agreed to
by the Secretary-General of the United Nations.
1
2
It is true that the service or legal process,
including the seizure of private property, may take place
within the Headquarters District only with the consent of,
and under conditions approved by the Secretary-General,
but it is equally true that it is agreed
1
3 that the United
Nations shall prevent the Headquarters District from
becoming a refuge either for persons who are avoiding
arrest under the federal, state or local law of the United
States, or who are required by the Government of the
United States for extradition to another country, or for
persons who are avoiding service of legal process. With
11
Appendix V, Article 11.4.
12
Appendix v. "Agreement Between the United Nations
and the United States of America Regarding the Headquarters
of the United Nations" (Lake Success: June 26, 1947),
Section 9.
13
Appendix V, Section 9 (8).
102
this section of the Agreement in mind, the Secretary
General, due to the fact that at the time the United
Nations Headquarters was under construction, and no appro
priate security forces could be provided by the United
Nations itself, entered into an informal agreement by
exchange of letters ~1th the United States allowing the
latter to enter the Headquarters District to maintain
security on these premises until the United Nations could
install its own forces.
It was necessary, however, to specify that in case
such entry should be necessary, the Secretary-General of
the United Nations would be notified immediately in order
that he might participate in any such action. It was
also specifically provided that no United Nations official
might be arrested under the terms of this agreement on
'
the premises of the United Nations or for any act com-
mitted on the premises. This arrangement, again, was
to be valid only until such time as the United Nations
itself should occupy the Headquarters site, or set up
its own security precautions.
rt is of vital importance to mention that in every
instance where it has been desired or found necessary
to serve legal process within the United ations Head
quarters District, it has been possible for the proper
103
authorities of the United States to make arrangements
with the Secretary-General to serve such process, at least
for purposes of information. Below, in this chapter,
an interesting case in connection with this inviolability
of the United Nations' premises in New York, Prague, and
Seoul will be discussed.
Tax Exemption
The United Nations was given exemption from all
direct taxes in the international conventions applied to
it. The General Convention on Privileges and Immunities
of the United Nations provides:
The United Nations, its assets, income and other
property shall be exempted from all direct taxes,
other than those which are in fact ni
4
more than
charges for public utility services.
The principle that international organizations like
the United Nations should enjoy freedom from taxation
has also been followed in the United States by the Inter
national Organizations Immunities Act
1
5 which extended
to the international organizations, including the United
Nations, specified by an Executive Order
16
freedom from
federal taxation.
1
4Appendix IV, Article 11.7.
l5urnternational Or anizations Immunities . Act"
United States Public Law No. 291, 79th Congress, 1st
Session, December 29, 1945.
16
Executive Order of the President of the United
States No. 9698, February 19, 1946.
104
It is understood that this Act of the United
States Congress could not exempt international organiza
tions from state taxation, but the State of New York has
partially carried out this principl by exempting the
real property of the United Nations Headquarters from
real property taxation. It is interesting to note, too,
that the State of New York in 1948 passed a law exempting
the United Nations from sales tax on official purchases
in the State of New York. This law was, however, not
to go into effect until such time as accession to the
General Convention on Privileges and Immunities of the
United Nations had been approved by the Congress of the
United tates. It, therefore, did not become effective
at the time the original purchases were being made for
the Headquarters site. However, the City of New York,
by its Administrative Council did, in 1948, exempt the
United Nations from sales taxes on purchases made within
the area.
1
7
Freedom from Financial Control
It is understandable that the United Nations
operate in many member and non-member countries and with
17
consolidated Laws of the State of New York,
No . 3396, March 10, 1948.
10.5
many forms of currency. Freedom from financial control,
therefore, is essential to its operation. action 5 of
the United Nations General Convention provides:
Without being restricted by financial controls,
regul tions or moratoria of any kind, (a) the United
Nations may hold funds, gold or currency of any kind
and operate accounts in any currency; (b) the United
Nations shall be tree to transfer its funds, gold or
currency from one country to another or within any
country and to conve~
8
t any currency held by it into
any other currency.1
Despite the international difficulties which have
arisen in the so-called "hard" and "soft" currency zones,
the United Nations has at no time, indeed, experienced
difficulty in connection with its own funds. t has been
left free tow thdraw, deposit, and transfer funds and
allocate currency as its function may demand.
Freedom of Communications
By its Charter, the United ations is meant to be
the main organ for the maintenance of peace and security
throughout the world. It is, therefore, essential that
its communications should be immune from seizure, censor
ship or investigat on. For this reason in particular
the United Nations General Convention did not overlook
18
A pendix IV, Art cle I .5.
106
this important aspect. It provided:
The United Nations shall have the right to use
codes and to dispatch and receive its correspondence
by courier or in bags, which shall have the same
immunities and privileges as diplomatic couriers and
bags.19
Section 9 of this Convention further provides:
The United Nations shall enjoy in the territory of
each Member for its official communications treatment
not less favorable than that accorded by the Govern
ment of that Member to any other Government including
its diplomatic mission in the matter of priorities,
rates and taxes on mail, cables, telegrams, radio rams,
telephotos, telephone and other communications; and
press rates for information to the press and radio.
No censorship shall be applied to the official corre
spondence and otser official communications of the
United Nations.2
Very few difficulties in this respect have arisen
with the United Nations. One noted difficulty was with
the Government of Egypt. During and after the Palestine
war, the Egyptian Government applied censorship upon the
United Nations communications. However, after having the
above-mentioned section drawn to its attention, the
Government of Egypt ceased its censorship activities in
so far as United Nations com.~unications were concerned.
1
gypt continued its censorship as to other communications.
19
Appendix v, Article rr . 10.
2
0Appendix IV, Article III.9.
107
II • FRI LEGES ND I \lfMU ITI S OF
1
rHE OF!t
1
ICIALS
The privileges and immunities of the officials of
the United ations are, in many cases, confused with
those enjoyed by the representatives of members in the
United Nations. Repr~sentatives of members in the United
ations, because they represent the sovereign state from
which they are sent, are usually given by the member-state
in which the seat of the United N tions is located, the
same priv leges and immunities as those which are given
to diplomats accredited to the member-state concerned.
But officials of the United Nations are on a different
level. They are considered to occupy the status of
international civil servants rather than that of diplo
matic representatives of foreign states. The United
Nations officials enjoy a more limited form of privileges
and immunities than those customarily given to the repre
sentatives of member-states. The status of the repre
sentatives of states in the United ations is not of vital
concern in this study.
Article V of the United ations General Conven
tion,21 Sections 17-21, deals with the privile es am
21
Append1x V, Article v.19.
106
immunities of the United Nations officials. These norms
are based on the granting of privileges and immunities
in all member-states, without national discrimination, and
on the basis of a differentiation of United Nations offi
cials into different categories. As to the contents, in
some cases full diplomatic privileges are granted in
accordance with the general principles of international
law; in other cases specified necessary privile es and
immunities are granted.
In general, there are three classes of officials
in the United Nations. The Secretary-General and all
Assistant Secretaries-General have full diplomatic privi
leges and immunities in respect or themselves, their
children, and their spouses. Section 19 of the United
Nations General Convention provides:
In addition to the immunities and privileges
specified in Sectlon 18, the Secretary-General and
all Assistant Secretaries-General shall be accorded
in respect of them.selves, their spouses and minor
children, the privileges and immunities, exemptions
and facilities accorded to diploma~~c envoys, in
accordance with international law.
As to the United Nations officials below these
ranks, Section 17 of the General Convention leaves it to
22
Appendix IV.
109
the Secretary-General to specify the categories of offi
cials to which the provisions of Article V shall apply.
This section reads:
The Secretary-General will specify the categories
of officials to which the provisions of this Article
and Article VII shall apply. He shall submit these
categories to the General Assembly. Thereafter these
categories shall be communicated to the Governments
of all Members. The names of the officials included
in these categories shall from time to time be made
known to the Governments of Members.
Therefore only the categories thus specified by
the Secretary-General would enjoy the privileges of
Section 18. But, in carrying out his functions under
Section 17 of the General Convention, the Secretary
General proposed:
The categories of officials to whic h the provisions
of Articles V and VI shall apply should include all
members of the staff of the United Nations, with the
exception of those who are recruit ed locally and are
assigned to hourly rates.23
I mm.unity from Legal Process
Although Section 18(a) of the United Nations
General Convention provides that "officials of the United
ations shall be immune from legal process in respect of
words spoken or written and all acts performed by them in
their o£ricial capacity," many cases have arisen in which
23
Appendix rv.
110
officials of the United Nations have been subjected to
legal process.
The first case of this kind, and the case which
established the precedent for United Nations officials,
was that of County of estcheste~ against illiam
Ranollo.
2
4 Mr. Ranallo was the chauffeur of Mr. Trygve
Lie, Secretary-General of the United Nations. He was
stopped on the Hutchin on-River Parkway on the 17th day
of October, 1946, while driving Mr. Lie to an official
dinner party, and was charged with driving at a rate of
speed in excess of fifty miles per hour, while the legal
limit for that district is forty miles per hour.
Mr. Ranallo, through counsel, answered in the
court that he was operating the motor vehicle at the time
and place complained of as an employee of the United
Nations and, in fact, he was accompanied in the vehicle
by the Secretary-General of the United Nations. By virtue
of these facts it was urged by his counsel that he was
immune from prosecution in the court. This claim for
immunity rested upon the provisions of Article 105 of the
2
4Lawrenoe Preuss, "Immunity
mployees of the United ationa for
Ranallo Case,
11
American Journal of
41:555-78, 1947.
of Officers and
Official Acts, the
nternational Law,
111
n ted Nations Charter and Section 7 (b) of the Interna
tional Organizations Immunities Act
2
5 which extends
immunity from suit and legal process to the employees
of international organizations acting in their official
capacity as such officials.
Judge w. Rubin's ruling was, in effect:
Where immunity is claimed by personnel of the
United Nations , this Court cannot hold as a matter of
law that the defendant so claiming immunity was
engaged in an official act which justified the grant
ing of immunity, and that such a determination can
only be made after the trial of an issue of fact; and
if the trial of that issue of fact produces a conclu
sion that the defendant was at the time of the com
mission of the offense charged, engaged in such an
activity as was necessary to the proper functioning
of the United Nations Organization, then and only
then should immunity be ranted , and this, regardless
of whether the defendant was ij member of the Security
Council or a minor employee.26
The decision of the Court, therefore, made it clear
that no United Nations official, and for that matter
official of any international organization, is entitled
to immunity as a matter of law without a trial of the
issue of fact. Judge Rubin held that penal statutes were
to be strictly construed; th t diplomatic immunity for
2511
rnternational Organizations Imm.unities Act"
Unit ed States Public Law No. 291, 79th Congress, 1st
ession (De·cember 29, 1945) •
26
Preuss, op. cit., P• 556.
112
ambassadors and forei n ministers did not make them immune
from all prosecution under the law, since at least theo
retically they were subject to return to their own country
for trial and punishment. The United Nations , according
to Judge Rubin, had no such tribunal for the trial and
punishment of offenders among its own personnel, and if
blanket immunity were to be recognized as prevailing in
this case, then one would have to come to the conclusion
that such an offender would escape punishment entirely.
After this case it was necessary for any United
ations official claiming immunity to prove as a matter
of fact that he was arrested in the course of his offi
cial duty, and therefore immune within the terms of the
International Organizations Immunities Act. Since this
decision it has been customary for United Nations offi
cials not to claim immunity from service of process for
traffic violations, for example, but on the contrary,
they have accepted service of process and appeared before
the court in the ordinary manner. Furthermore , the
Secretary-General has issued an administrative ruling to
the effect that members of the staff may not claim any
privileges and immunities without first consulting the
Unit ed tions Legal Department , since the privileges and
immunities are extended to protect the organization and
113
not the members of the staff.
Tax :\xempt:ton
According to Section 18 (b) of the United Nations
General Convention the officials of the organization
shall "be exempt from taxation on the salaries and emolu
ments paid to them by the United Nations."
But the fight against national discrimination in
tax exemption of international officials played a large
role in the discussions of the Fifth and Sixth Committees
of the First Part of the General Assembly of the United
Nations, held in London. All kinds of proposals were
made. While the representative of Holland proposed that
in order to avoid creating a "tax f'ree
11
class, a tax
should be imposed by the United Nations, the United
Kingdom objected on the ground that such tax would have
no real purpose, and the United Nations is not a sovereign
state but an employer.
2
7 No precedent exists anywhere
of an employer taxing an employee. In order to have
equal pay for equal work, Norway proposed an increase in
the salaries of ofr1c1als who have to pay taxes. Finally
the United Nations at the 3rd Session of the General
Assembly in Paris in 1948 adopted a staff assessment plan
27
T e same argument was used against an interna
tional passport in the League of Nations.
114
whereby all officials of the United tions were made
subject to a staff assessment on the salaries and emolu
ments paid to them by the un·ted ations. This assessment
ranged from 15 per cent on the firs 4 , 000 of assessable
income to 40 per cent of the next $J ,OOO and 50 per cent
on all remaining assessable income.
M embers of the United Nations, after the adoption
of thi s staff assessment plan, were requested to grant
relief from double taxation to their nationals employed
by the United Nations . In order to grant relief from
doubl e taxation, the Foreign Affairs Committee of the
House of Representatives of the United States Congress,
when cons idering the United Nations General Convention on
Privileges and Immunities of the Organization, recommended
that the reservations formerly made by the United States
overnment should be droppea.
28
The ground for this
rec ommendation was that salaries and emoluments paid to
officials of the United Nations who were United States
nationals will not be subject to double taxation.
2
9
28
united tates Congress, House of Representatives,
orei n Affairs Committee, Convention on Privileges and
Immunities of the United Nations, Hearings before Sub
committee, 80th Congress, 2nd Session, on HR 6802,
June 9 , 1948 (Washington: Government rinting orfice),
P• 314.
29
bid.
115
Military Service Obligation
Article V, Section 18 (c) of the United Nations
General Convention provides: "Officials of the United
Nations shall be immune from national service obligations."
This provision has er ted some difficulties, as far as
the United States M ilitary Service Law is concerned. The
fact that many employees of the United Nations, especially
in the lower brackets, are United States citizens was one
reason that led the United States not to accede to the
United Nations General Convention, at the time of the
National Draft Act of 1948.
In order to solve this problem, however, and to
adhere to Articles 104 and 105 of the United Nations
Charter, the President of the United States by Executive
Order in August, 1948, provided that it was not necessary
for alien officials of international organizations,
including the United Nations, or the representatives of
members of such organizations to register ror the draft
under the United States Military Service Law.
Customs Facilities
United Nations officials were granted by the
General Convention an exemption on customs duty, or duties,
116
usually placed on importation of furniture.JO This
exemption extends to officials of international organiza
tions when they are first taking up their post of duty
in the country in question and has been interpreted as
meaning exemption from such duties when the official of
an international organization is sent to a new post for
a reasonable period of time. The United States Government
concessions even exceeded the terms of the United Nations
General Convention since they grant to the officials of
international organizations and their families, suites
and servants, freedom from customs duties and interna
tional revenue taxes imposed upon or by reason of importa
tion when such goods are imported in connection with the
arrival of the owner.31
For some time there has been a misunderstanding by
many people to the effect that officials of the United
Nations have the same freedom to import, free of customs
duties, as is given to diplomatic officials. This view
is quite erroneous. It is true that the United Nations
itself may import, free of duties, those goods which it
needs for official purposes.3
2
But this exemption does
JOAppendix IV , Article .18 (e) •
. Jlu nternational Organizations mmunities Act"
United tates ublic Law o. 291, Section J.
32Appendix IV, Article 1.7 (b).
117
not extend to t he officials of the United Nations, who
must pay duties on all imports, other than those objects
which the officials may bring when they first arriva.33
Officials of the United Nations itself are exempt
f rom travel tax, when traveling for tl.1.e of f'icial work of
t he organization. But the officials of the United
ations are not free from travel taxation unless the
f a cilities of the travel are purchased through the United
Nations organization.
Travel Facilities
Unlike the experience under the Lea gue of Nations,
i n practice there has been little or no difficulty in
rega r d t o travel facilities extended to the United Nations
off i cials. The United Nations General Conventions
pr ovide: " Officials of the United Nations shall be
i mmune from immigration restrictions, together with their
spouses and relatives dependent on them.
11
34 The United
St ates has provided for the entry of officials of inter
national organizations, including the u·nited Nations,
33n nternational Organizations I mmunities Act"
United States Public Law No. 291, Section 3•
J4Appendix V, Article V.18 {d).
118
and their families and servants in the International
Organizations Immunities Act which provides for an amend
ment of Section 303(7) of the United Nations Immigration
Code.
The governments of member nations, realizing the
importance of the traveling of these officials. have
extended speedy travel facilities and have permitted
aliens to enter their territory as officials of the United
Nations who would ordinarily be inadmissible. Even in
the case of governments -which have not as yet acceded to
the Convention, like Jordan, such facilities have been
granted. Occasionally incidents have arisen because of
misunderstanding, during which the visas of certain offi
cials or of the family members of officials have been held
up. However, this is the exception rather than the
general rule.
United Nations Laissez-Passer
Article VII, Section 24 of the United Nations
General Convention provides:
The United Nations may issue United ations laissez
passer to its officials. These laissez-passer shall
be recognized and accepted as valid travel documents
by the authorities of Members, taking into account
the provision of Section 25.
This laissez-passer 1s now widely lmown and, in
119
accordance with the Convention, is recognized as a valid
travel document. It is interesting to note that state
less persons and persons who have not been granted pass
ports by their governments because of political or other
reasons are permitted to travel abroad on the laissez
passer without any national passport. It is, therefore,
a travel document which permits the United Nations offi
cials to cross any international boundary line without
any further national papers of identification. Although
a laissez-passer may be issued only to the officials of
the international organization,35 the names of the family
members may be included for information purposes on the
laissez-passer, and the document is usually honored in so
far as these persons are concerned.
IV . UNIT D NATIONS INTEREST DISTI GUISHED
FROM PERSONAL BENEFIT
Press and public opinion frequently confuse the
privileges and immunities of United Nations officials
with the placement or such an ofricial above any law
whatsoever. This is a wrong assumption, indeed, and such
35
Appendix IV, Article vrr. 24.
120
a confusion must be clarified. Privileges and immunities
of the United Nations officials are but a means to the
protection of the interests of the organization itself.
It is useful in this connection to illustrate these prin
ciples by briefing the case of arrest of one of the
United Nations officials.
The Case of Valentin A. Gubitchev
On March 4, 1949, alentin A. Gubitchev, an offi
cial of the United Nations employed as third secretary
of the United Nations Secretariat, assigned to the Head
quarters Planning Staff, was arrested by the United States
authorities for alleged acts of espionage. This arrest
took place when Mr. Gubitchev was meeting with Miss Judith
Coplon at about 9:30 o'clock in the evening in the City
of New York. Mr. Gubitchev was taken to the New York
office of the Federal ureau of Investigation in the United
States Court House on Foley Square where he was searched,
fingerprinted, and photographed. At 11:00 p.m. he was
advised that it was desired to question him concerning his
connection with M iss Judith Coplon and his activities on
the night or March 4, 1949. He was inrormed that he was
not required to answer any questions; that he was entitled
to have an attorney representing him, and was advised that
121
if he did make any statements these statements could be
used against him in a court of law. He thereupon was
questioned until 2:37 a.m., March 5, 1949. It was alleged
by the United States authorities that the questions asked
Mr. Gubitchev related entirely to his personal background
and his association with M iss Judith Coplon and his activi
ties on the night of M arch 4, 1949. At 11:00 a.m., on
March 5th he was arrai gned in Federal Court,3
6
and rem.anded
to the custody of the United States Marshal on 100,000
bail,37 to await Grand Jury indictment.
After an exchange of correspondence between the
Soviet Government and the United States Government, and
several interviews between Mr. Gubitchev and the Soviet
authorities, as well as United Nations officials,
Iv!r. Gubitchev was subsequently indicted on March 10, 1949,
in the District Court of the United States, Southern
District of New York, by a grand jury charging him with
conspiracy to violate provisions of the espionage laws
of the United States and to defraud the United States by
hindering the lawful functions of the Department of
3
6
The Federal Judge was Simon Rifkind.
37
The Court's fixing of bail at $100,000 was based
upon the fact that the defendant was an alien, subject to
recall by his government. He made plans, moreover, to
leave the Uni t ed States by June, 1949.
122
Justice, and an unlawful attempt to receive from Miss
Judith Coplon, citizen of the United States, certain
documents, writings and notes relating to the national
defense with knowledge that such documents had been
obtained by Miss Coplon contrary to the law.
Previous to this time, on March 5, 1949, the United
States officials informed the ecretary-General of the
United Nations that this- arrest had occurred and presented
evidence as to the grounds upon which it had been made.
The Secretary-General and his representatives, after con
ferring with the United States Department of State author
ities and federal authorities, suspended Mr. Gubitchev
1
s
status as an official of the United Nations, without
prejudice, pending investi gation of these allegations.
On M arch 5, 1949, Mr. Jacob A. Malik of the. Perma
nent Delegation of the Union of Soviet Socialist Republics
to the United Nations communicated with the Secretary
General of the United Nations, stating that Mr. Gubitchev,
in his diplomatic capacity as Third Secretary of the
United Nations, enjoyed diplomatic privileges and immuni
ties and further expressed hope that the Secretary-General
'
would take the appropriate steps vis-a-vis United States
authorities for the immediate release of Mr. Gubitchev.
The Secretary-General expressed the view to a represents-
123
tive of the Permanent Delegation of the Union of Soviet
Socialist Republics to the United Nations, at a meeting
held in his office on March 5, 1949, that the position
of the Secretary-General with regard to this case was that
Mr. Gubitchev•s status must be determined by his relation
ship with the United Nations Or anization, since personnel
of the Secretariat are clearly distinguished from offi
cials of member governments by the provisions of the
United Nations Charter, Articles 104 and 105, by the
Convention on the rivileges and Immunities of the United
Nations, Articles V and 1,3
8
and by the Staff Regulations
adopted by the General Assembly .
The Secretary-General stated that as an official
of the Secretariat r. Gubitchev was entitled, in con£orm
ity with Article 105 of t he Charter, to such immunities
as are necessary for the independent exercise of his
functions. He pointed out that Mr . Gubitchev•s immunity
only extended to immunity from legal process in respect
of words spoken or written and all acts performed in his
official capacity under both Section 18 of the Conven
tion on Privile es gnd mmuni ties of the United Nations39
38
Appendix rv.
39
Ibid.
~4
and the International Organizations Immunities Act of the
United tates. Therefore, since it appeared from the
complaint against Mr. Gubitchev and the consultations on
the early morning of Saturday, March 5th, between repre
sentatives of the Secretary-General and the United States
authorities, that the charges· against Mr. Gubitchev
related to alleged activities outside his official func
tions , the Secretary-General was not in a position to ask
for the release of Mr. Gubitchev. However, it was stated
that the matter would be followed up with the greatest
attention and the Permanent Delegation of the Union of
Soviet Socialist Republics in.formed of any relevant
developments in the matter. This attitude was conrirmed
in writing to the Union of Soviet Socialist Republics.
It should be noticed, in this case, that no request
was made on the part of the Secretary-General of the
United Nations that the principles of justice should be
foll owed. The Secretary-General, however, was informed,
without an official request to the United States authori
ties , as it is customary in such cases, that (a) there
were sufficient grounds upon which to base a case against
• ubitchev (this information was given, however, after
the arrest took place); (b) that Mr. Gubitchev would be
bro h to speedy trial and that all his rights would be
125
observed. Access to Mr. Gubitchev was permitted both to
the Soviet Delegation and to officials of the United
Nations.
Therefore, since in the opinion of the Secretary
General of the United Nations, Mr. Gubitchev did not have
immunity because he was arrested for alleged acts outside
his official functions, as a United Nations official,
no violation of the immunity of Mr. Gubitchev or of the
immunity of the United Nations itself was considered by
the Secretary-General to have occur~ed as a result of
the arrest of this Soviet official by United States
authorities.
This case has made clear, indeed, that "privileges
and immunities are granted to officials in the interests
of the United Nations and not for the personal benefits of
the individuals themselves.n40 It also applied the
principles of Article V, Section 21, of the Convention on
the Privileges and Immunities of the United Nations, which
reads:
The United Nations shall co-operate at all times
with the appropriate authorities of Members to facili
tate the proper administration of justice, secure
the observance of police re gulations and prevent the
occurrence of any abuse in connection with the privi
leges, i~unities and facilities mentioned in this
Article.4-1
46Appendix IV, Article v.20.
126
In summary, United ations officials enjoy immunity
from local jurisdiction for their official acts except
in case of exercise of waiver by the ecretary-General .
However, they do not enjoy jurisdictional immunity for
non-official acts. The tendency appears to be to place
the competence for deciding whether the nature of an act
is private or official in the courts of the state con
cerned, but such a decision is not necessarily final
owing to the provisions for appeal found in measures for
settling disputes through application of the General Con
vention and the Headquarters Agreement .
CHAP!' R VI
STATUS OF THE UNITED NATIONS AND ITS OFF CIALS FUNCTIONING
OUTSIDE THE UN TED TATES OF AMER CA
The Charter of the United Nations does not restrict
the enjoyment of privileges and immunities to the United
Nations and ~ts officials p rformin their funct ons in
the United States. Like the Lea ue of ations, the United
Nations, as a publ c international organization, may
operate anywhere in the world to be able to rulfill its
promises of maintaining international peace and security
as well as raising the social and economic standards of
the world.
1
In some countries special laws or regulations
have been issued regarding the privileges and immunities
to be enjoyed by the United Nations and its officials.
In others there has been an agreement or correspondence
between the various overnrnents and the Secretary-General
of the United ations.
These arrangements may well be considered under
the headin s of member-states and non-member-states.
1
Preamble of the United Nations Charter.
128
I. STATUS IN TERRITORIES OF MEMBER-STATES
Members of the United Nations are bound to adhere
to the provisions of Articles 104 and 105 of the United
ations Charter regarding privileges and immunities of the
Organization and its officials in general. The exact
details of Article 105, however, were laid down by the
General Convention on the Privileges and Immunities of
t he United Nations,
2
which was adopted by the General
Assembly on February 13, 1946 and proposed for accession
b y each member of the United Nations. Some members,
however, made certain reservations before their accessions
t o the Convention.3 Other members, like Afghanistan,
ustralia, Brazil, France, Iraq, Norway and the United
Kingdom, acceded to the Convention as it stands.4
The legal status of the United Nations as an
2
ppendix IV.
3
canada, New Zealand, and Turkey have excluded their
own nationals from the tax exemptions granted to the United
a t ions officials by the Conventions. United Nations,
ecretariat, Legal Department, andbook on the Le~al Statu~
rivileftes and Imm.unities (New York: September, 952),
PP• 38- O. (Hereinafter rererred to as: United Nations,
Handbo~k on Legal Status, Privileges and Imm.unities.}
4
rbid.
129
international personality and its privileges and immunities
as an organization, and in relation to its officials,
has been recognized in the territories of member-states
without major difficulty. To explore this point further
it may be of interest to illustrate the status of the
Organization and its officials in some member-states.
The United Nations in France
The status of the United ations in France was
demonstrated by France's accession to the Convention on
the Privileges and Immunities of the United Nations on
August 18, 1947. When the plan for the ixth ession of
the General Assembly to be held in Paris5 was under way,
the Secretary-General of the United Nations and the French
Government entered into an agreement in which the French
Government, among other things, assured the United Nations
of the following privileges and immunities:
(1) Inviolability and protection of the premises
put at the disposal of the United ations for holding
the GeneraI Assembly.
(a) The part of the Palais de Chaillot and
(b) the premises erected as detailed in Section II of
this Agreement, shall, during the entire period of
their occupancy by the United Nations, be considered
premises of the United Nations and enjoy inviolability.
5The ixth Session of the General Assembly was held
in Paris in 1951.
130
They shall be placed under the control and authority
of the United ations which shall have the sole right
to authorize or forbid access thereto and to expel
any persons therefrom.
(2) Right of entry into and sojounn in French
territory.
(a) Without prejudice to the provisions of the
Convention on the Privileges and Immunities of the
United. Nations, the French Government undertakes to
authorize the entry into France, without visa costs
or delay, and the sojourn in Paris and in the Depart
ment of the Seine for the duration of their functions
with, or mission to, the Sixth ~ ession of the General
Assembly, of the following persons: (1) Representa
tives or Member States and orficials of the United
Nations and of the Specialized Agencies and the families
(spouses and children of such representatives and
official~.
(3) Diplomatic Status. In addition to the persons
described in Section 19 of the General Convention on
Privileges and Immunities, the French Government has
decided to grant, for the duration of their mission,
including the time of travel in French territory,
the privileges, immunities, exemption, and facilities
accorded to diplomatic envoys accredited to the French
Government, to the representatives of delegations of
Member States of the United Nations accredited to the
Sixth Session, to the permanent representatives and
permanent members of their staff who enjoy diplomatic
privileges and immunities at the Headquarters 0£ the
Organization, and to the Directors of the United
Nations Secretariat assigned for duty at the Sixth
Session
6
and bearers of the United Nations Laissez
passer.
By the same agreement, the French Government granted
many other privileges to United Nations officials who were
6
un1ted Nations, Handbook on the Legal Status,
Privileges and Immunities, PP• 86-89.
131
assigned to the ixth ession of the General Assembly in
aris.7 Members of the delegations and of the ecretariat
have enjoyed exemption from customs dutie on their
personal effects and on any goods which are part of their
personal baggage, and the United Nations is authorized
to import free of duty, victuals, tobacco, spirits and
clothing for sale to members of delegations and of the
Secretariat for personal consumption by themselves and
their families. Thus, the French Government, by its
adherence to Articles 104 and 105 of the Charter and to
the General Convention on Privileges and Immunities, has,
in actual practice, contributed greatly to the strength
of the United ations and its peace-maintaining mission.
he United ations in Egypt
One of the popular mistakes in the press of the
United tates and in public opinion is that the United
Nations suffers low prestige and lack of confi ence in
the Near and Middle Eastern countries. This idea is,
indeed, quite erroneous and should be re-examined for the
sake of all parties concerned. E ypt, Iraq, Saudi Arabia,
7
similar rac 1 ties were made available by the
French Government to the United Nations ror holdi of
the Third ess on of the General Assembly in Paris in
1948. Ibid., P• 77•
132
Turkey, Iran and Afghanistan, all Near and Middle Eastern
States, were among the Charter Members of the United
N' t ions. Today about one-third of the United N tions
members are Near and Middle astern States. This Organiza
t ion enjoys a very high prestige and has a great impact on
the social, economic and political development in that
part of the world. The role of the United Nations in the
Iranian-Russian dispute over Azerba lj~n, the Syrian-French
disput e over the independence of yria and Lebanon, the
Libyan-Italian dispute over the future of Libya, and,
finally, the Arab-Zionist dispute over the future of
Palestine, and the economical and technical as sistance
program, illustrate how the United Nations has meant a
great deal to the peoples and governments in the Near and
?'1iddle East.
I t is an established fact that United Nations~ or
any other public international organization, will not be
abl e to achieve any of its objectives wi t hout the good
will, faith and sincerity of its members. Since the
Unit ed Nations has no military or police powers available
to enforce its decisions, it is only the high prestige of
the Uni t ed Nations and the full respect and cooperation
of the Near and Middle Eastern peoples and governments
which made t he United Nations projects, political or
133
otherwise, of lasting success.
Most of the Middle Eastern States have adhered to
Articles 104 and 105 of the Charter regarding privileges
and immunities, and have acceded to the Convention on the
Privileges and Immunities of the United Nations.
8
rn Egypt the United Nations and its officials have
enjoyed, to the .full extent, privileges and immunities
normally granted to diplomatic missions. On December 31,
1948, an agreement was concluded between the Government
of Egypt and the United Nations Relief far Palestine
Refugees Director, representing the Secretary-General
regarding the privileges and immunities of UNRPR officials
while they function in Egyptian territory. Article I
of the Agreement provides:
The Royal Government of Egypt agrees to rant to
the Director of the Agency, the Members of his
Advisory Commission, and the senior officials of the
Agency, as may be agreed in writing between the Royal
Egyptian Government and the Director, the privileges
and immunities norm.ally enjoyed by international
custom, by diplomatic envoys, employed staff members
of the Agency, appropriate visas which will permit
them to enter and leave the Kingdom of Egypt and will
exempt them from quarantine, customs and other fees
8
Afghanistan acceded to the Convention on September
5, 1947; Egypt, September 17, 1948; Iran, May 3, 1947;
Iraq, September 15, 1949; Israel, September 21, 1949;
Lebanon, March 10, 1949; and Turkey, August 22, 1950.
Ibid., PP• 38-9.
134
of similar nature when travelling upon official busi
ness of the Agency.9
On September 12, 1950, a similar agreement was con
cluded between the Government of Egypt and the Director of
the United Nations Relie. f and Works Agency (UNRWA), in
which Egypt granted privileges and immunities to the
UNRWA officials operating in the Gaza territory which
was, and still is, under Egyptian jurisdiction.
10
The United Nations in Other M ember-States
Other Member-States of the United Nations have made
similar efforts to preserve the privile es and immunities
of the Organization and its officials. Canada has adopted
several legislative acts for this purpose. Article II
of the United Nations Privileges and Immunities Act of
Canada, 1947, provides:
(a) The Organization shall have the legal capacities
of a body corporate;
(b) The Organization shall, to such extent as may
be specified in the Order, have the privileges and
immunities set forth by Articl83II and III of the
Convention for the United Nations .11
9
united Nations, Handbook on the Legal Status,
Privileges and Immunities, PP• 166-08.
lOibid., P• 109.
11
Ibid., P• 163.
135
The United Kin dam's International Organizations
Immunities and Privile es Act of 1950 provides:
(1) Immunity from suit and le gal process; (2) the
like inviolability of official archives and premises
occupied as offices as is accorded in respect of the
official archives and premises of an envoy of a
foreign sovereign power accredited to His Majesty;
(3) the like exemption or relief from taxes and
rates.
1
2
The Government of Denmark on March 7, 1952, passed
an Act to grant privileges and immunities to the United
Nations and its officials .
1
3 In 1948, the Government of
Australia adopted an Act by which a formal accession of
Australia to the "Convention on the Privileges and Immuni ties of the United Nations" took place.
Case of Interest
Some member-states for various reasons have not yet
acceded to the Convention on Privileges and Imm.unities of
the United Nations . Nevertheless, they have, on many
occasions, demonstrated their full adherence to the provi
sions of the Charter, regarding the legal status, privi
leges, and immunitie of the United Nations and its
12
lbid., P• 272.
1
3"Act No . 72. Concernin Privileges and Immuni
ties of International Or anizations, etc.," March 7, 1952.
136
officials. Czechoslovakia is one of the original members
of the Un ted Nations, yet it neither acceded to the
Convention on Privile es and Immunities nor enacted any
national legislation to that effect. n actual practice,
however, the Czechoslovak Government has granted all
privileges and immunities to the Organization as well as
to its officials. The following case may illustrate this
view in action.
On May 25, 1949, the Director of the United ations
ra ue nf'ormation Center reported that on that day,
shortly after noon, two men came to the office of the
United Nations Center which served Czechoslovakia and
Yugoslavia and entered the premises. In the hall they
showed the badge of Security Police and asked for a local
employee of the Center named Adolph Mudroch, a Czecho
slovak national. The men proceeded without permission
throu hone of the offices and along the balcony and into
another office where Mr. Mudroch worked, and requested
Mr. Mudroch to accompany them for interrogation. They
wer then informed by the Director of the Center, Mr. Olav
Rytter, that no action such as arrest, summons or interro
gation could take place in the offices of the Center
because of its inviolability as United Nations premises.
After eing assured by Mr. Rytter that Mr. Mudroch would
137
not leave the Center until the matter was cleared up, the
Security Police departed. Mr. Mudroch then remained in
the Center day and night, food being brought in by col
leagues.
On June 1, 1949, the Secretary-General called
M r. Rytter, endorsin his action and upholding the inter
national character or the United Nations premises and
supporting Mr. Rytter's complaint to the Czechoslovak
Foreign Ministry against the violation of United Nations
premises by the Czechoslovak Security Police. Mr. Lie,
the ecretary-General of the United Nations, instructed
M r. Rytter to ask for the reasons for the attempted arrest
and gave permission for Mudroch to remain on the premises.
ubsequently an apology was received from the representa
tive of the Czechoslovak Foreign Office through Mr. Rytter.
On June 20 a cable was received by the Secretary
General from Mr. Rytter stating that the Chief of Protocol
of the Czechoslovak Foreign Office verbally repeated an
apology for the incident of entrance into the Center's
offices and made an official request that Mr. Mudroch
leave the premises for questioning in connection with
"suspicion of contacts with a group under trial for anti
state activities."
On June 21, in reply to a cable from Mr. Rytter
138
asking instructions, the Secretary-General directed him to
ini'orm the Czechoslovak Foreign Ministry that its apology
with respect to the infringement of the United Nations
premises in Prague ~as acknowledged and accepted and that
he noted with satisfaction that this closed the aspect
of the incident in the Secretary-General's opinion. How
ever, before Mr. Mudroch left the premises, the Secretary
General asked the Czechoslovak Government for a specific
assurance that any questioning of :Mr. Mudroch would not
refer to the United Nations activities or words spoken
or written and acts performed by Mr. Mudroch in his offi
cial capacity. The Secretary-General further requested
regular information from Mr. Rytter covering any judicial
proceedings in ~hich Mr. Mudroch might be involved.
On Jwie 27, the Czechoslovak Foreign Minister gave
official assurance that 11r. Mudroch W()Uld not be questioned
about United Nations activities or words spoken or written
or acts performed in an official capacity. The Secretary
General was informed that Mr. Mudroch was wanted for
interrogation by Czechoslovakian Security Police as he was
suspected of contact with persons engaged in anti-state
activities. Upon these assurances, Mr. Mudroch accordingly
left the United Nations p emises. He was not, however,
sou ht for further questioning by the Czechoslovak
Government at that time.
1
4
II. THE UNITED NA IONS STATUS IN THE
TERRITORIES OF NON-MEMB R-STATES
139
The United Nations is a public international organ
ization. Thus it functions throughout the many countries
of the world, regardless of whether or not those countries
are members in the Organization. Many of the non-member
states have associated themselves with some activities
contemplated by the United Nations Charter and have
respected rights provided in the Convention on Privileges
and Immunities. The United Nations, accordingly, has
enjoyed and is enjoying special privile es and immunities
in the territories of non-member-states either by national
legislation or by special agreements or correspondence
with the Secretary-General.
Italy and the United Nations
While Italy was not a member of the United Nations
Organization until December 14, 1955, its government gave
all possible cooperation to preserve the principles of the
1
~his case was briefed from Carol M. Crosswell,
Protection of International Personnel (New York: Oceana
Publications, 1952), PP• 63-69.
Charter as well as the Convention on Privileges and Immuni
ties of the Organization. On March 10, 1950, the Secreta:cy
General of the United Nations and the Italian Government
entered into an a reement, through an exchange of letters,
in which the Italian authorities agreed:
Section 8. The United Nations possesses juridical
capacity and enjoys the privileges and immunities
which it requires, including:
(a) Capacity to contract, to acquire or dispose of
movable and immovable property and to institute legal
proceedings.
(b) Its property and assets, wherever located and
by whomsoever held, enjoy immunity from every form of
legal process.
(c) Its premises are inviolable.
(d) No financial control.
(e) Most favorable treatment in respect of rates
of exchange.
(f) Exemption from direct taxes and customs alike.
1
5
When the Italian Government a reed to grant the
United Nations and its officials the status and privileges
mentioned above, it is clear that it meant an implied
acceptance of the principles contained in the Convention
on Privileges and Immunities. Neither the United Nations
15
united Nations, Handbook on the Legal Status,
Privileges and Immunities, PP• 130-31.
nor any of its organs has recorded any major difficulty
regarding their privileges and status in the talian
territory.
Israel
n 1948, the State of Israel was created largely
as a result of action by the United Nations tselr.
1
6
However , it was not admitted as a member of the Organiza-
ton until May 11, 1949.
1
7 evertheless an Ordinance,
enacted by the British Hi h Commissioner for Palestine,
to make provision for the rant of certain immunities and
privile_es to the Un ted Nations , remained in force in
Israe1.l8 Accordingly, srael is to rant the Organza
tion and its officials immunity from suit and legal process,
inviolability of official archives and premises , and
relief or exemption from taxes and rates, etc.
1
9 It must
be noted, however, that the sraeli Government, on
September 21, 1949, also acceded to the Convention on the
16
united lations , General Assembly (2nd ession),
Resolution 181, ovember 29, 1947.
17
united Nation, Department of Public nformation,
Yearbook of the United a ions, 1954 ( ew York: 1955),
P• 552.
18
ordinance o. 27, 1947, Palestine Gazette,
o. 1588 ( upplement ), June 14,·1947, P• 6.
T9
. Ib d.
Privileges and Immuniti es of the United Nations.
20
Case of Interest
The ood faith and sincerity and full cooperation
of non- member- states , as well as the members, are vital,
i ndeed, in making the United ations' mission a success.
The following case is of interest to illustrate the good
will and full cooperation by one of the non-member-states
t owar United ations operations in their own territories.
The Case of the Korean Employees of United Nations
Commission on Korea Staff. On September 10, 1949, the
Secretary-General of the United Nations was informed that
t wo Korean employees of UNCOK, nationals of the Republi c
of outh Korea , had been arrested by the Korean police.
M . c. W ertheimer, the Secretary of the United Nations
Korean Commi ssion, was not informed of this impending
ar r est before it took place~ He, therefore, protested
thi s matter , asking an opportunity to interview the men
concerned, and requested that these persons not be ques
t ioned on United Nations activities. He also inquired
as t o the nature of the charge against them.
20
united Nations, Handbook on the Legal Status,
rivileges and Immunities, P• 39.
143
Following this action, a cable was sent to the
Foreign Ministry of the Republic of Korea by the ecretary
General, drawing its attention to Article 105 of the
United Nations Charter and General Assembly Resolution
76(1) by which officials to whom. privileges and immunities
are to apply are defined as well as members of the staff
of the United Nations except hourly-paid employees. It
was pointed out that citizenship of an official does not
affect his position and he enjoys privile es and immuni
ties provided by the Charter even if he has been recruited
locally and is serving the United ations inside the
territory of the state of which he is a national. It was
also stated that privileges and immunities extend only
to acts performed in the exercise of official functions
and that the staff regulations provide that staff members
shall avoid any action and in particular any kind of
public pronouncement or act v ty which may adversely
reflect on their position as international civil servants,
although they are not expected to ive up their national
sentiments or their political or religious convictions.
The policy of the United Nations was defined as including
the followi procedures: (1) The Secretariat should
be informed beforehand of any impending arrest or inter
rogation. (2) Assurance should be given that arrest
144
is due to actions performed outside official capacity and
that the person would not be questioned with regard to his
official functions on United Nations business. (3) That
persons should be treated in accordance with universally
recognized principles of justice. It was urged that this
policy has been accepted even by states which had not
yet acceded to the Convention on Privileges and Immunities
of the United Nations.
Since the Republic of Korea was not a member of the
United Nations, it was felt that such a request on the
part of the Secretary-General should be based on the
Charter rather than the Convention on Privileges and
Immunities of the United Nations.
On September 13, 1949, the Korean Forei n Minister
cabled the Secretary-General inf'orrning him that, although
the Republic o.f Korea was not a member of the United
Nations, the Korean Government fully subscribed to the
Principles of the United Nations Charter including Article
105, and to General Assembly Resolution 76{1) defining
privileges and immunities. It was stated that the clerk
and dispatcher, both Korean nationals, were arrested ror
crimes having no possible connection with United Nations
duties, that reasonable evidence had been secured before
arrest and that in due course the men would be tried
before the courts to determine their guilt . The Govern
ment of the Republic of Korea further alleged that the
men were not arrested for holding abstract political views
but because under cover of their United Nations position
they conspired with fellow Koreans engaged in acts of
terrorism, murder, armed raids, sabotcge and espionage.
The Korean Government asserted that it desired to give
advance notice of the intended arrest but that in con
spiracy cases this was often impossible. Attention was
called to the action of other overnments, including
member-states like the United States, which in a similar
case had not been able to give advance notice of intended
arrest.
21
Assurance was given that in the future the
Foreign Minister would endeavor to give more prompt noti
.fication.
In the light of the cooperation and sincerity of
the position taken by the Government of the Republic of
Korea and the fact that the Korean officials were sought
for questioning and arrest for activities performed out
side their official functions, and that reasonable evidence
had been offered in this connection, the Secretary-General
rai~ed no further objections to the arrest of thes
21
see "The Case of Valentin A. Gubitchev," supra,
P• 120.
Korean nationals.
22
III. THE INT RATIONAL COURT OF JUSTICE
The question of privileges and immunities enjoyed
by the International Court of Justice is dealt with in
the special instrument as discussed below.
Article 19 of the Statute of the Court
In accordance with the Dumbarton Oaks Proposals,
which provided that the United Nations Or anization should
include among its principal organs an International Court
of Justice, a Committee of Jurists was designated by the
United Nations, which met in Washington for the purpose
of preparing a draft statute of the said Court. This
draft statute was submitted by the Committee of Jurists
to the San Francisco Conference and was taken as a basis
of discussion by Committee IV/1.
The text of Article 19 of the draft statute, which
corresponded to the same Article of the Statute of the
Permanent Court of International Justice, and the accompa
nying observations made by the Committee of Jurists read
as follows:
22
crosswell, Protection of International Personnel,
PP• 65-9.
147
The members of the Court, when engaged on the busi
ness of the Court, shall enjoy diplomatic privileges
and immunities. (Subject to reconsideration after
provisions on the same subject hav~ been adopted
for incorporation in the Charter.) 3
When this Article and the accompanying observations
were examined by Committee IV/1, the delegate of Iran
raised the question of the status of a judge having the
nationality of the country in which the Court might be in
session. The dele ate of the Netherlands observed that
his Government treated all members of the Court as being
assimilated to the diplomatic corps at The Hague . The
Philippine delegate considered that this was a matter for
the constitutional authorities of the country concerned .
The delegate of Turkey stated that a country ratifying the
Statute would be bound thereby to accord diplomatic
privileges to all judges, including any of its own nation
ality. The Committee then unanimously approved the text
of Article 19 and the accompanyin observations made by
the Committee of Jurists.
2
4
After Committee IV/2 approved the provisions relat
ing to the privileges and immunities of the Organization
23
united Nations, Conference on International
Organization, Document 73, xrv.832.
2
4un1ted Nations, Conference on International
Organization, Document 179, XIII.155-56.
and its officials, and in view of t he observations of the
Committee of Jurists, Article 19 of the draft statute
was reopened for discussion in Committee rv/1.
2
5
One dele ate pointed out that the eneral provision
in the Charter related only to such privileges and immuni
ties as were necessary for the exercise of the functions
of the Or anization because ther e was no need for some
of the officials of the Or anization t o enjoy diplomatic
privileges; on the other hand, Committee I V/1 should say
what privileges and immunities were necessary for the
exercise of the functions of the members of the Court.
In his opinion, members of the Court needed diplomatic
privileges and immunities.
26
Article 42(3) of the Court tatute
In this connection, nd when Article 42 of the
draft statute was under discussion, it was suggested that
provision should also be made for immuniti es for the
Re istrar and other members of the staff of the Court,
and for a gents and counsel of the parties. The relation
ship of this article to the general provision in the
2
5un1ted Nations, Conference on International
Or anization, Document 548, XI 1 .204.
26
united Nations Archives, Verbatim Minutes of the
Eleventh M eeting of Committee IV/11 BJ:43-44•
149
Charter of the United ations relating to the privileges
and immunities of officials of the Organization was also
discussed here. Committee IV/1 considered a proposal
submitted by Iran and Mexico to confer immunities on
agents and counsel of parties before the Court .
2
7 It was
pointed out that this problem might be important because
these persons might have to travel through several coun
tries to reach the Court and also because of the possibil
ity that special chambers of the Court might sit at
places other than The Hague.
After these considerations , the Committee decided
that Article 19 would remain as it was, and the following
proposal was adopted and added as an amendment to Article
42:
The a gents and counsel of parties before the
Court shall enjoy the privileges and immunities
necessarB to the independent exercise of their
duties.2
Th e Report of Commission IV which incorporated
the recommendations of Committee IV/1 was approved by
the Conference at its Ninth Plenary Session.
27
united Nations, Journal of the General Assembly,
First Session, 34:704 (London: March 7, 1946).
28
Ibid., P• 709.
150
Article 32(8) of the Statute
"The above salaries, allowances and compensation
shall be free o:f taxation.
11
This provision was taken
verbatim from the Statute of the Permanent Court of Inter
national Justice and was approved at the San Francisco
Conference without discussion. It exempts the salaries,
allowances, and compensation of members, judges other
than members, the President, the Vice-President, and the
Registrar of the Court from all direct and indirect
taxation.
Resolution of the General Assembly on the Privileges
and Immunities of the Court
The followin resolution was adopted by the General
Assembly on February 13, 1946:
1. The General Assembly, with a view to ensuring
that the International Court of Justice shall enjoy
the privileges and immunities and fac lities necessary
for the exercise of its purposes, in the country of
its seat and elsewhere, invites the members of the
Court at their first Session to consider this question
and to inform the Secretary-General of their recommen"
dations.
2. The General Assembly decides that the question
of the privileges and immunities of the Court shall
be considered as soon as possible arter the receipt
of the recommendations of the Court.
J• The General Assembly recommends that, until
rurther action has been taken, the rules which have
been applied to the Permanent Court or nternational
Justice should be observed by Members in relation to
151
the nternational Court of Justice.
29
The Status of the Court in The Netherlands
In accordance with the Resolution mentioned above,
the question was considered by the members of the Court
in April-May, 1946.
hortly after, the President, at the
Court's request , entered into negotiations with the
Foreign inister of the Netherlands . These negotiations
resulted in an exchange of letters which the Registrar of
the Court, on June 26, 1946, duly communicated to the
Secretary-General of the United Nations , together with a
report adopted by the Court at a then recent session,
on the subject of immunities. According to the agreement,
which resulted from the official exchange of letters,
the Government of the Netherlands a reed to grant the
Court and its officials the following privileges and
immunities:
1. As concerns the privileges, immunities, facili
ti es and prerogatives within the territory of the
Netherlands of members and staff of the International
Court of Justice, of other than Dutch nationality:
irst
(a) The members of the Court will, in a general
way, be accorded the same treatment as Heads of
Diplomatic Missions accredited to Her Majesty the
ueen of the Netherlands.
2
9united Nations , Journal of the General Assemblz,
ession, 34:704 (London: arch 7, 1946).
As regards the privileges , immunities and
facilities above mentioned, this provision applies
also to the Registrar of the Court and to the
Deputy-Registrar when actin for the Re istrar.
(b) The Deputy-Registrar of the Court will,
in a general way, be accorded the same treatment
as Counsellors attached to Diplomatic Missions
at The Hague.
(c) The other officials of the Court will be
treated as officials of comparable rank attached
to Diplomatic M issions at The Hague .
2. Members of the Court, the Re istrar and higher
officials of the Court who are of Netherlands
nationality, are not answerable to the local jur s
diction for acts performed by them in their official
capacity and within the limits of their duties.
Netherlands nationals of whatever rank are exempted
from direct taxation on the salaries allotted to
them from the Court's budget.
3• The wives and unmarried children of members of
the Court, the Re istrar and the higher officials
of the Court, when of non-Netherlands nationality,
shall receive the same treatment as the head of the
family, if they live with him and are without profes
sion. The household of the family (governesses,
private secretaries, servants ••• etc.) occupy the
same position as is accorded in each case to the
domestic staff of diplomatic persons of comparable
rank.
4. Privileges and immunities are granted in the
interests of the administration of international
justice and not in the personal interest of the bene
ficiary.
As concerns officials of the Registry, the Regis
trar, with the President's approval, may withdraw
their immunities, with due re ard to the principle
laid down in the previous paragraph. In the case
of the Re istrar, this duty shall rest with the Court .
5. The assessors of the Court and the a ents,
153
counsel and advocates of the parties, shall be accord
ed such privileges, immunities and facilities for
residence and travel as may be required for the inde
pendent exercise of their functions.
Witnesses and experts shall be accorded the immuni
ties and facilities necessary for the fulfillment of
their mission.JO
The Status of the Court in Other Countries
The Court accordingly examined the problem of its
status in its various aspects durin its first session,
held at The Ha ue from April Jrd to May 6th, 1946, and
transmitted to the General Assembly its conclusions.
The General Assembly considered the recommendations of
the Court durin the second part of its first session,
and passed a resolution on December 11, 1946, providing:
1. The General Assembly approves the agreements
concluded between the International Court of Justice
and the Netherlands Government, as recorded in the
exchange of letters between the President of the
Court and the Minister of Foreign Affairs of the
ethe lands.31
2. Recommends that if a jud e, for the purpose
of holdin himself permanently at the disposal of
the Court, resides in some country other than his
own, he should be accorded diplomatic privileges and
immunities durin the period of his residence there.
JO nternational Court of Justice, Yearbook 1946-47
(The Ha ue: International Court of Justice Re istry,
1947), P• 90 .
3l bid., pp . 88- 91 carries text of the letters
exchanged.
154
3. Recommends the judges should be accorded every
facility for leaving the country where they may
happen to be, for entering the country ~here the Court
is sitting , and again for leaving it. On journeys in
connection with the exercise of their functions, they
should, in all countries through which they may have
to pass, enjoy all the privile es, immunities and
facilities granted by these countries to diplomatic
envoys.
This provision should also apply to the Registrar
and to any officer of the Court acting as Registrar.
4• Recommends that (a) officials of the Court
should enjoy in any country where they may be on the
business of the Court , or in any country through
which they may pass on such business , such privileges,
immunities and facilities for residence and travel as
may be necessary for the independent exerc se of their
functions.
The Registrar, and any officer of the Court acting
as Registrar, should, while on business of the Court,
be accorded diplomatic privileges and immunities.
(b} Inasmuch as these privileges and immunities are
granted to officials of the Court in the interests of
the International Court of Justice, and not for the
personal bener·t of the individuals themselves , the
Registrar of the ourt, with the President's approval,
should have the ri ght and the duty to waive the
immunity in any case where, in his opinion, the
immunity would impede the cours~ of justice, and can
be waived without prejudice to the interests of the
Court. In the case of the RegistPar , the Court should
have the ri ht to waive immunity.32
This part of the Unite ations Resolution has made
no radical change in the privile es and immunities enjoyed
by the Permanent Court of International Justice. tis ,
32 ·
Ibid., P• 92 •
155
however, an international legal instrument to be observed
by members and non-members of the United Nations .
Briefly, the fifth chapter of the Resolution
provided a recommendation calling upon authorities of
members to accord the agents, counsel and advocates before
the Court the privile es and immunities provided for in
Article IV, Sections 11, 12 and 13 of the Convention on
Privileges and Immunities of the United Nations .33 It
further called upon the authorities of the members to
accord the assessors of the Court , during the period of
their missions, including the time spent on journeys in
connection with their missions, the privileges and
immunities provided for in Article I V, Section 22 of
the Convention. itnesses , experts and persons perform-
ing missions by order of the Court should be, according
to Article V of this Resolution, accorde privileges and
immunities.
But the International Court of Justice, for the
first time in its history, was ranted by Article VI of
the Resolution, the privileges of using the United ations
passports or Laissez - Passer. The Laissez-Passer is to
33Appendix I V.
156
be considered an recognized by the authorities of members
as a valid travel document . To this effect the Article
reads:
6. The General Assembly recommends that
(a) The authorities of Members should reco gnize
and accept United Nations Laissez-Passer, issued
by the International Court of Justice to the
members of the Court, the Registrar and the offi
cials of the Court, as valid travel documents,
taking into account the provisions of sub-paragraph
(b) •
(b) Applications for visas (where required)
from the judges of the Court and the Registrar
should be dealt with as speedily as possible. All
other holders of Laissez-Passer should receive the
same facilities when the applications for visas
are accompanied by a certificate that they are
travellin on the business of the Court . In addi
tion, all holders of Laissez-Passer should be
granted facilities for speedy travel.
(c) Similar facilities to those specified in
sub-para raph (b) should be accorded to experts and
other pe sons who, though not the holders of
United Nations Laissez - Passer , delivered by the
International Court of Justice, have a certi.ficate
that th~y are travelling on the business of the
Court.Ji+
Such Laissez- asser documents were prepared and
issued after the summer of 1950. They are similar in form
to the Laissez-Passer issued by the Secretary- eneral of
the United Nations to his starr.35
34Appendix IV .
35
rnternational Court of Justice, Yearbook 1952-53,
(The Hague: International Court of Justice Re istry,
1953), P• 26.
157
The States concerned have received due notification
of this fact. These listed below have informed the
Registry of the Court that they have taken the necessary
steps to insure that such Laissez-Passer would be con
sidered as valid travel documents within their territory.
36
Australia Nicaragua
Belgium Norway
Bolivia Pakistan
alt Peru
M exico Philippines
Netherlands Switzerland
New Zealand Uruguay
It may be generally concluded, therefore, that
officials of the United Nations functioning out of the
United States have enjoyed a 'great many privileges and
immunities both in territories of member-states and
within the territories of non-member-states. The coopera
tion and ood will of many of the non-member-states helped
greatly in lessening the difficulties of the United
Nations in this regard.
36
Loe. cit.
CHAPI'ER VII
THE SPECIALIZED AGE CIES
In the preceding chapters a study was made of
the different types of privileges and immunities apper
taining to the t~o most important general international
organizations, namely, the League of Nations and the
United Nations, and to the different classes of officials
associated with their work. Analysis of those privileges
and immunities is based upon provisions of such basic
instruments as the Covenant of the League of Nations ,
the Charter of the United Nations , the General Convention
on Privileges and Immunities of the United Nations ,
the Statutes or the Permanent Court of International
Justice, the United States International Organizations
Immunities Act of 1945, the British Diplomatic Privileges
Extension Act of 1946, the Agreement of 1947 between
the United Nations and the United States relating to
the Permanent Headquarters of the un·ted Nations, and
other relevant background material.
Provisions relating to privileges and immunities
similar to those for the League of Nations and the
United Nations are also contained in the constitutional
159
documents of international organizations and in particu
lar of those international organizations which have been
brought into relationship with the United Nations under
Articles 57 and 63 of the Charter. These latter are
called the
11
Specialized Agencies." They were established
by intergovernmental agreement, or agreements, and have
wide international responsibilities, as defined in their
basic instruments, in economic, social, cultural, edu
cational, health, and related fields.
1
Simultaneously with the rapid development of the
United Nations these specialized a gencies have assumed
their present form. Three of them, the International
Labour Organization, the Universal Postal Union, and
the International Telecommunications Union, are older,
well-established, organizations which have modified
their earlier constitutional arrangements in various
respects since the Second W orld War. The others, although
some of them inherit in varying degrees the experience
of earlier bodies, are essentially new organizations
which have been called upon to develop their internal
organization and procedure, evolve their policies and
1
united Nations Charter, Article 57, paragraph 1.
160
programs, establish effe tive links with their members,
lay the foundation for their future development, and
establish satisfactory mutual relations among themselves.
There was a certain amount of initial confusion in this
respect because of the early tendency to improvise, but
it should be noted that great progress has been made
during the last few years. Not only have attempts to
coordinate the activities of the Specialized Agencies
borne fruit, but a remarkable degree of uniformity and
harmony has been achieved as regards their legal status
and privileges and immunities, which are necessary to
enable them to function effectively.
r. CONVENTION ON PRIVILEGES AND IMMUNITIES
The question of privileges and immunities of the
Specialized Agencies, before and during 1944, was dealt
with on the basis of analogies with the customary rules
of diplomatic immunity. Today their position has been
clarified. The United Nations Charter and the Convention
on the Privileges and Immunities of the United Nations
have clearly shown the so-called functional character of
these immunities. On the other hand, the status of
Specialized Agencies has been defined by a multilateral
convention approved by the General Assembly of the United
161
Nations in 1947, the Convention on the Privileges and
Immunities of the Specialized Agencies.
2
The object of
this Convention was to give effect to a Resolution of
the General Assembly contemplating the unification as far
as possible of the privileges and immunities enjoyed by
the United Nations and by the various Specialized Agen
cies.3 Moreover, the status of these Specialized Agencies
has been defined by a great network of agreements, for
example, bilateral agreements concerning headquarters,
agreements relating to technical assistance concluded by
the United Nations, and agreements made by the Specialized
Agencies with a large number of States, both members and
non-members of the United Nations Organization. The
legal personality under municipal law, and above all,
the international legal personality of these agencies,
has been recognized in various forms, expressly and
impliedly by a great number of states, so that today the
problem has been greatly simplified.
As in the case of other international organizations,
Specialized Agencies, in order to carry out their func
tions, must frequently enter into private law transactions.
2
Appendix VI .
3
united Nations, Treaty Series , xv. 282. Reg . o.
103.
162
These transactions assume various forms, as, for example,
the so-called "public international contract," or con
tracts for the purchase of equipment, contracts of
service, building contracts, insurance, transport, or
printing. They also deal with questions of copyright
and are concerned with banking and commercial transac
tions and liability to third parties or to their own
employees. Specialized Agencies also have a legal rela
tion in their dealings with states, other international
organizations, and private individuals or companies.
To examine the Convention on Privileges and
Immunities of Specialized Agencies, we may refer to the
principles applicable to the United Nations Organization
itself, as, with sli ght differences, i ~ is a replica of
the United Nations Convention on Privileges and Immuni
ties . This difference between the two Conventions is
of importance for present purposes.
Article 7, Section 24, of the Convention on Privi
leges and Immunities of Specialized Agencies, which
relates to "Abuse of Privile es," provides:
If any State partyto this Convention considers
that there has been an abuse of a privile e or
immunity conferred by this Convention, consultations
shall be held between that State and the specialized
agency concerned to determine whether any such abuse
has occurred and, if so, to attempt to ensure that
163
no repetition occurs. If such consultations fail
to achieve a result satisfactory to the State and the
specialized agency concerned, the question whether an
abuse of a privilege or immunity has occurred shall
be submitted to the International Court of Justice
in accordance with Section 32. If the International
Court of Justice finds that such an abuse has occurre~
the State party to this Convention affected by such
abuse shall have the right, after notification to
the specialized a gency in question, to withhold from
the specialized agency concerned the
4
benefits of
the privilege or immunity so abused.
This is, indeed, a drastic sanction. It was prob
ably a necessary provision to satisfy certain States,
like Switzerland and the United States, which might have
been apprehensive regarding the increase in the number
of specialized a encies, along with their agents and
officials, enjoying a privileged status outside the ordi
nary law.
The importance of this Convention, however, must
not be exaggerated. It occupies a secondary place in
the hierarchy of legal norms. The Constitution of the
specialized agency and the agreements concluded between
the specialized agency and various states, and in particu
lar the host state, ir such agreement exists, are of
primary importance. In the present connection, the
Convention on Privileges and Immunities is largely
4Appendix VI.
164
declaratory in its effect. Nevertheless , the system works
relatively smoothly as regards the immunity of the
Organization itself, as distinguished from that of its
officials.
II. THE INTERNATIONAL LABOUR ORGANIZATION
The specialized agencies, established by inter
governmental agreement and having wide international
responsibilities as defined in their basic instruments
which have already been,or are, in process of being
established, include the following:
1. The International Labour Organization (IL0).5
2. The Food and Agriculture Organization (FOA).
6
3• The International Monetary Fund (Fund).
7
4• The International Bank ror Reconstruction and
Development (Bank).8
5Ernest s. Hediger , "The International Labour
Organization and the United Nations," Foreign Policy
Reports, June 1, 1946. ~
6
Horace Belshaw, "Th e Food and Agriculture Organ
ization of the United Nations ," International Organiza
tion, 1:291-306, 1947.
7
united Nations, Yearbook, 1946-47, PP• 766-68.
8Fred L. Hadsel , "Technical Specialized Agencies
of the United Nations," Foreign Policy Reports , November
15, 1947, PP • 214-16.
165
5. The International Civil Aviation Organization
(ICAO) •
9
6. United Nations Educational , Scientific and
Cultural Organization (UNESC0).
10
7• The World Health Organization (WH0).
11
8. The International Refugee Organization (IR0).
12
9. The International Trade Organization
(Projected) (IT0).
1
3
10. The Intergovernmental Maritime Consultative
Organization (IMC0).
1
4
11. The Universal Postal Union {UPU).
1
5
. 9
Ibid., PP• 218-19.
10
c. M. Thompson, "The Educational , Scientific and
Cultural Organization of the United Nations," Foreign
Policy Reports, February 15, 1946, PP• 59-67.
11
united Nations, Yearbook, 1946-47, PP• 789-804;
see also: Walter R. Sharp, "The New World Health Organ
ization," American Journal of International Law, 41:509-
30, 1947.
12
P. A. 1'1alin, "The Refugee: A Problem for Inter
national Organization," International Organization,
1:443-59, 1947.
1
3united Nations, Yearbook, 1946-47, PP• 821-24.
l4Jobn M. Cates , Jr., "United Nations aritime
Conference," Department of State Bulletin, 18:495-99,
January-June, 1948.
l5united States, Department of State , International
Agencies in· hich the United States Parti cipates, Depart
ment of State Publication o. 2699, PP• 297-303.
12. International Telecommunications Union
(ITU). lb
139 The World M eteorological Organization
( M0).17
These specialized agencies not only are parties
166
to the Convention on Privileges and Immunities of Special
ized Agencies, but also were brought into relationship
with the United Nations by their own resolutions and in
accordance with the provisi ons of Articles 57 and 63
of .the United Nations Charter.
The International Labour Organization, however, is
of special interest because it is one of the oldest public
international organizations, the importance or whose
activities has received the widest recognition. It has
a well-established position and therefore the methods
it has adopted in order to solve the problems relative
to immunity are of great value and may serve as a pattern
for other international organizations, such as the rest
of the specialized a gencies.
16rbid., PP• 264-70.
17
John M. Cates, Jr., "Meeting or International
Meteorological Organization, Conference of Directors,"
De~artment of S~ate Bulletin, 18:43-6, January-June,
19 a.
167
Juridical Personality and Immunity
The instrument of Amendment of the Constitution
of the ILo
1
8 (October, 1946) contains two articles relat
ing to its juridical personality and immunity. Article
39 which deals with juridical personality reproduces the
first article of the two Conventions on Privileges and
.
Immunities. It provides:
The nternational Labour Organization shall possess
full juridical personality and in particular the
capacity
11
to contract," to acquire and dispose of
immovable and movable property and to institute
legal proceedings.19
Article 40, dealing with privileges and immunities,
is a replica of Article 105 of the United ations Charter.
It provides:
The Organization shall enjoy in the territory of
each of its Members such privileges and immunities
as are necessary ror the fulfillment of its pur
poses. 20
The legal status of the ILO was the subject of an
agreement with the Swiss Federal Council concerning the
legal status of the Organization in Switzerland, which
l8united Nations Treaty Series, XV, p. 37.
19
Ibid., P• 49.
20
rbid.
168
cam e into force i n 1926.
21
This agreement was largely
i nspired by the modus vivendi concluded by the League
of a t ions and the I LO with Switzerland during the 1920's
and after. It contains a series of provisions whose
conciseness and clarity leave little to be desired. Its
importance, however, lies in the fact that it has served
as a pattern for other agreements concluded by Switzerland
wit h other spec i alized a gencies whose headquarters are
l oc at ed in Switzerland, especially that of the WHO. Two
important articles of the A greement may be mentioned
for our purpose.
Article I , which deals with "freedom of action of
the I . L.0.,
11
contai ns "the guarantee, by the Swiss
Federal Council, of the independence and freedom of
action of the I nternational Labour Organization as an
internati onal ins t i tution."
22
This article brings out
the basis of the juridical personality and immunities of
an international organization. The object is to ensure
its i ndependence and freedom of action.
21 B
Ibid.~ P• 2 2, Reg . No. 103.
169
Articles 2 and 3 are logically connected with
Article 1. Article 2 states:
The Swiss Federal Council recognizes the inter•
national personality and legal capacity in Swi~zer
land of the International Labour Organization. 3
There is no confusion here. The article clearly
distinguishes between the two types of personality, and
well established practice makes it possible to use the
correct terms.
Article 3 of the Agreement is of special interest.
It provides: "The International Labour Organization
enjoys the immunities known in international law as
'diplomatic immunities.
111
24 This article is probably
the most satisfactory formulation in the transition period
of 1946 and represents an important consolidation or past
gains.
Immunity from Legal Process
The question of immunity from legal and jurisdic
tional process of the ILO is provided by Article 6 of the
Agreement. This article provides for "immunity from
legal process and immunity from other measures." This
provision, perhaps, is the mos t absolute that we have
23
Ibid., P• 283.
24
rbid.
170
encountered in thi s study so far as regards the immunity
from jurisdiction and execution as enjoyed by public
i nternational organizations. A waiver of immunity cannot
be pr esumed since it requi r es a formal act by the Director
of the Organization. Immunity from execution, in all
its as pects, is also laid down in categorical terms. In
spite of the bilateral character of the Agreement, which
m ay be revised or even denounced after two years• notice,
it is of extreme importance because the practical prob
lems t hat may arise ~ill mainly concern the headquarters
state. Other states will find it difficult to depart
from t he principles thus developed by actual experience.
Other Privileges and I mmunities
The 1946 Agreement between the I LO and the Swiss
Federal Council extended other privileges and immunities
to the O rganization and its staff and officials regarding
taxation, national service obligation, travel facilities,
legal action affecting ILO officials, etc. These privi
leges and immunities, however, are, with slight differ
ences , a r eplica of t he 1926 Modus Vivendi, between the
League of Nati ons and t he Swiss Federal Council.
2
5 The
2
5Appendix II.
171
.
two main differences are dealt with in Articles 19 and
23. Article 19 provides:
Any penslon fund or provident fund acting under
the authority of the International Labour Organiza
tion shall enjo
26
1egal capacity in Switzerland ir
it so requests.
Such an institution would, therefore, be a legal
person under mun~cipal law distinct rrom the Organiza
tion, but it would enjoy the same exemptions, privileges,
and immunities as the Organization itself.
This provision represents the beginning of an
interesting development ·n t he field of the international
organizations which might create limited companies,
trusts, or limited entities for a particular object; they
are legally autonomous but are subject to the authority
of the parent organ zation and enjoy a certain legal
capacity.
The second difference is dealt with by Article 23,
which provides:
The International Labour Or an~zation shall make
provisions for the appropriate methods of settlement
of (a) disputes arising out of contracts and other
disputes of a private law character, to which the
International Labour Organization is a party.27
26
rnternational Labour Organization, Agreement
Between the International Labour Or anization and the
Swiss Federal Council Geneva: 19 , Article 19.
27 .
Ibid., Article 23.
172
For disputes between the ILO and its officials
there is an "Administrative Tribunal," of the Interna t:i.onal Labour Organization, which is the form.er adminis
trative tribunal of the Lea ue of Nations. This tribunal
has a statute which was adopted by the International
Labour Conference in 1946. It was modified in 1949 in
order to extend the competence of the tribunal to other
international organizations, recognized for this purpose
by the Governing Body of the ILO, as regards the contracts
of service and the status oft air personnel . This
represents a qua i-judicial power of the Administrative
Tribunal an is a new provision. It was inserted in the
tatute of the Tribunal in 1946, but as yet has not been
used. It is., moreover, limited to "private'' disputes
arising out of contracts .
The idea of giving the permanent administrative
tribunal of an intern~tional organization jurisdiction
over "external" disputes is in itself a practical one.
It is, however, necessary that the tribunal should provide
all the guarantees associated with the proper administra
tion of justice and that it inspire the highest degree
of confidence. The independence and the value of such
a tribunal depends upon its status and its system of
recruitment . t would be necessary, for example, to avoid
173
a system of recruitment based primarily on geographical
criter ia . Personal qualifications ought to be decisive.
The problem, seems to have been settled in a satisf'actory
manner by the International Labour Organization (ILO) in
respect to its administrative tribunal. It may be men
tioned that the question of the settlement of private
d sputes is less mportant in the case of the ILO than
in t he case of certain other specialized agencies which
carry out so-called "operational" f unctions; for example,
UNESCO or UNIC EF, which, in the exercise of their func
tions , are called upon to purchase goods, to adminster
funds , to organize transport, and so on.
III . OT
1
R IALIZED A G CI ES
It has been stated above that there are, at the
present , t~elve specialized a encies (plus the projected
nternational Trade Organization) which are established
by intergovernmental agreement havin wide international
re ponsibilities as defined in their basic instruments,
and have already met the qualifications set by Articles
57 and 63 of the Charter . It has been seen, again, that
there is a tendency towards the gradual unification of
the rules adopted , both as regard inter.national and
municipal l egal personality, as well as privileges and
174
immunities. Some provisions in earlier legal instruments
lack precision or are unnecessarily complicated. Thus
the Act establishing the United Nations Food and Agricul
ture Organization (1945) contains the usual provisions
(Articles 66 and 67) taken from the Charter of the United
Nations. Article 68 of the Food and Agriculture Organ
ization Constitution provides that the legal capacity,
privileges and immunities of the Organization "shall be
defined in a separate agreement to be prepared by the
Organization in consultation with the Secretary-General
or the United Nations and concluded between the Mem
bers.1128
When establishing its headquarters in Switzerland,
the World Health Organization concluded an agreement
with the Swiss Federal Council (1948) concerning the legal
status of the Organization in Switzerland. This Agreement
closely follows the pattern of the 1946 Agreement between
Switzerland and the International Labour Organization.
2
9
It is of importance for the present purpose to
mention that the World Health Organization has concluded
28
Walter R. Sharp1 "The New World Health Organiza-
tion," American Journal of International Law, 41:509-30,
1947.
29
united Nations, Yearbook
2
1948-49, PP• 1033-46•
175
agreements with various states. For example, there is
the agreement of 1949 with the Government of India
relating to the privileges, immunities and facilities
granted by the Indian Government to the WHO. It reproduces
the main provisions of the Convention on Privileges and
Immunities of Specialized Agencies, including such provi
sions as deal with legal personality, jurisdictional
immunity and the settlement of private law disputes.JO
The r·nternational Refugee Organization
By its resolution of February 12, 1946, the General
Assembly of the United Nations, recognizing the immediate
urgency of the international problem of refugees and
displaced persons, recommended that the Economic and
Social Council establish a special committee for examining
the problem.3
1
A committee so established, the Special
Committee on Refugees and Displaced Persons, met in
London, April 8 to June 1, 1946, and recommended the
establishment of a specialized agency of non-permanent
character to deal with the problem. Arter careful study
of all aspects of the matter by the Council and by the
JOibid., P• 1034•
3
1
united Nations, General Assembly, Resolutions
Adopted During the First Part of the First Session,
Doc. A/64, P• 12.
176
Governments of Members of the United Nations, the Council,
by resolution of October 3, 1946, submitted to the
General Assembly a Draft Constitution for the Internation
al Refugee Organization and proposed Interim Arrange
ments.32 On December 15, 1946, the General Assembly
approved ~1th some modi£1cations) the Draft Constitution
and the Interim Arrangements, and urged Members to ratify
both instruments.33
The legal status of the IRO _ s defined by provi
sions similar to Articles 104 and 105 of the United
Nations Charter. It is of special interest for our pres
ent purpose because of its operational character
6
which
on several occasions gave rise to legal proceedings.
Two cases may be mentioned in this connection. The first
(1951) was an action in tort and for the breach of a
charter party brought by the International Refugee Organ
ization against the Panama Company and a Portuguese
national. The Federal Court of Appeal of the United
32
united
Resolutions Ado
Rev. 1, PP• 29-
33united
Resolutions Ado
Nations, Economic and Social Council,
ted Durin Its Third Session, Doc. E/245/
7.
Nations, Economic and Social Council,
the Second Part of Its First
177
States of America (Fourth Circuit) overruled the decision
of the lower court and held that the IRO had the capacity
to institute legal proceedings. The Court recogni~ed
that international organizations like the IRO which
purchase and charter ships and enter into contracts regard•
ing the transport of refugees must be entitled to apply
to the Federal Courts for the protection of their inter
ests.34
rn another case in Germany, in 1951, one Schaffner
brought an action against the International Refugee
Organization for damages caused by the negligence of an
official of the Organization in driving a car. The United
States Court of Appeal (Allied High Commission for Germany)
held that it had no jurisdiction, not because of the
United States Act relating to the privileges and immuni
ties of international organizations, which had no applica
tion to Germany, nor by reason of an Agreement between the
International Refugee Organization and the American
authorities, but mer· ely on the basis of a statement of the
United States High Commissioner in Germany. The Court
considered that it had the power neither to overrule, nor
3
¾illiam · • ishop, Jr., "Judicial Decisions,
International Organization, Capacity to Sue in United
States Federal Court," American Journal of' International
Law, 1952, P• 146.
178
even to exami ne a decision by the Executive Branch of the
Government in matters of privi l eges and immunities.35
The International Monetary Fund
Provision is made f or t his Organization by the
Articles of Agreement of the International Monetary Fund,
which is Annex A of the Fi nal Ac t of the United Nations
Monetary and Financial Conference held at Bratton Woods,
July 1-22, 1944.36
The principal purposes of FUND, which has its head-
quarters in W ashington, D. C. , are :
1. To promot e international monetary cooperation
through a permanent institution which provides the
machinery for consult ation and collaboration on
international monetary pr oblems;37
2. To facili t at e the expansion and balanced
growth of interna tional trade ; JB
3. To promote exchange s tability, to maintain
orderly exchang e arrangement s among members, and to
avoid competitive exchange d eprec1ation;39
4• To assist in the establishment of a multi
lateral system of payments in respect of current
transactions between m embers and in the elimination
of forei gn exchange restrictions which hamper the
3~Ibid., P• 575.
3
6
united States , Department of State, United Nations
Monetar and Financial Conference Bratton Woo New
Ham sh re Ju -22 Fina Acts and Related Documents,
Depar ment o State ub i cat on No . 2 7, Conference
Series 55, p. 28.
37rbid. 38rb1d., P• 29.
39
rb 1d.
179
growth of the world.40
Such purposes indicate that the FUND is in a
distinct category amongst the specialized agencies. The
question of privileges ·and immunities here assumes a
special character, namely, a functional one. Tb.is so
called
11
funct1onal" test is defined in detail in Article 9
of the Bratton Wood Agreement which deals with "Status,
Immunities and Privileges" of the FUND. It is
to enable the Fund to fulfil the functions, with
which it is entrusted, the status, immunities and
privileges set forth in this Article shall be
accorde~_to the Fund in the territories of each
Member.Lµ..
This Article constitutes a small code dealing with
the question under discussion. It contains ten para-
raphs or "sections." Her e the system of privileges and
immunities is the subject of detailed. rules which are not
the same in other specialized agencies. Article 9 or the
Agreement grants the Fund full juridical personality and
complete immunity from jurisdiction, "except to the extent
that it expressly waives its immunity for the purpose of
4olbid., P• JO.
4
1
united Nations, Yearbook, 1945-46, PP• 766-88.
See also: George N. Holm, International Monetary Coopera
tion (Chapel Hill: University of North Carolina Press,
1945), P• 111.
180
any proceedings or by the terms of any contract."4
2
The
immunity from execution provided for in Section 4 of the
same Article, entitled, "Immunity from ether action"
is not of absolute character. It reads:
Property and assets of the Fund shall be immune
from search, requ sition, confiscation, expropria
tion or any other form of seizure by executive or
le islative action.43
The last words of this Section suggest that imm.un -
ty does not attach when the seizure is ordered by a
juridical body. he judiciary can only intervene in the
case of an express waiver.
The nternational Ban for Reconstruction and Development
The Bank functions under the terms of the Articles
of Agreement constituting Annex B of the Bretton oods
Final Ac t , referred to above.44 It has the following
primary purposes:
1. To assist in the reconstruction and development
of territories of members by facilitating the invest
ment of capital for productive purposes;
42united States , Department of State, United
ations Monetar and Financial Conference Bratton oods,
New H ampshire, Ju y 1-22, Final Acts and Related Documents,
Department of State Publication No. 2187, Conference
Series 55.
4J bid., action 3.
44
united ations, Yearbook, 1946-~7, PP• 747-66.
181
2. To promote private foreign investment, and,
when private capital is not available for productive
purposes on reasonable terms, to supplement private
investments; and
3• To promote the long-range balanced growth of
international trade and the maintenance of equilibrium
in balances of payments by encouraging international
investment for the dev~lopment of the productive
resources of members.4~
The operations of the Bank consist in making or
facilitating loans for the specified purposes under
conditions set forth in the Articles of Agreement. The
nature of such purposes, automatically, put the Bank in
the same "functional" category of specialized agencies
as that of the International Monetary Fund, which was
discussed above. The status, privileges and immunities
of the Bank are similar to that of the Fund. Article 17
of the Bratton Woods Agreement of the Bank is in fact a
replica of Article 9 of the Fund Agreement, mentioned
above.
The difference between the two, however. is in the
position of the Bank with regard to judicial process. In
t his respect actions may be brought against the Bank only
in the territories of a Member in which (a) the Bank has
4.5
Ibid., PP• 749-50.
182
an office, (b) it has appointed an agent for the purpose
of accepting service or notice of process, and (c) it has
issued or guaranteed securities.4
6
However, no actions
can be brought by Members or by persons acting for or
deriving claims from Members. The property and assets
of the Bank shall, wherever situated and by whomsoever
held, be immune from all forms of seizure, attachment or
execution before the delivery of the final judgment
against the Bank. For the present purpose, this provision
is very interesting, in that it makes the Bank subject
to the ordinary procedure in regard to legal proceedings.
The first sentence of the provision provides for
jurisdiction, and there is, therefore, no immunity, while
the second sentence provides for an immunity which must
be respected by member-states. In other words, private
persons or bodies, in their relations with the Bank,
enjoy a more favorable position than member-states. It
may have been sought to prevent member-states from apply
ing to their own courts in order to obtain a judgment
against the Bank. The reason for this was clearly the
special nature of the activities carried out by the
183
International Bank, which is a very special type of
international organization. Its day-to-day activities
are entirely "operational," and are carried out in the
commercial sphere. The International Bank needs the
confidence of the investment market and, more than any
other specialized agency, is of the "operational" type.
It must be emphasized that, unlike the case of
the International Monetary Fund, no provisional measures
of execution may be employed against the International
Bank. No final measures of execution may be resorted to
except after a decision having the juridical effect has
been pronounced.
Thus, it may be generally concluded that there
1s a great deal of similarity between the legal instru
ments . of the rest of the specialized agencies, dealing
with their legal status, privileges and immunities. To
a certain extent, most of them are replicas of the
Articles of the Convention on the Privileges and Immuni
ties of Specialized Agencies which they all adhered to.
CHAPrER VIII
INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS
Until recently, the main concern, in regard to the
legal status,. privileges, and immunities of international
organizations, centered around the official relationships
.
between states. The status of the League of Nations, the
United Nations, and the Specialized Agencies were all
based upon intergovernmental agreements which only repre
sent the official aspect of our topic.
The time has come. however, to realize that the
unofficial side of world affairs has developed to the
point where it should be given consideration as an impor
tant aspect of international lif e. In particular, students
of international organi zations should recognize the
immense contribution of those organizations composed of
unofficial groups in different countries which have come
together to promote common interests through international
action. These were known as "private international organ
izations" before the last orld W ar, but, following the
terminology of Article 71 in the Charter of the United
Nations, "international non- governmental organizations"
has become the commonly accepted term. The Article read :
185
The Economic and Social Council may make suitable
arrangements for consultation with non-governmental
organizations 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 Members of the United Nations concerned.
Since then, the term "international non-governmental
organization" has been defined by the Economic and Social
Council to mean "any international organization which is
not established by intergovernmental agreement."
1
The composition of the international non-govern
mental organizations, which shall be referred to hereaftEr
as INGO's, is varied. In a few instances, the members are
individuals from various countries who have joined the
international organization directly, but generally the
members are national organizations f'rom two or more coun
tries. Most ING0
1
s have permanent central off'ices with
a secretariat; a few have merely a permanent committee.
Nearly all are governed by a constitution, by-laws, etc.
In all instances the structure and control are on the
international level.
The control in most ING0
1
s is exercised by the
1
united Nations, Economic and Social Council,
"Arrangements of the Economic and Social Council of the
United Nations for Consultation with Non-Governmental
Organizations," Guide for Consultants, United Nations
Document E/INF/23, 30, April, 1948, P• 16.
186
members through t heir voti ng rights as to policies and
actions of the organi zations . There are, however, cases
where the control is vested in a single authority, which
may be considered as having an "international personal
ity." Such international single authority 1s to be found
in the Roman Catholic Chur ch and, perhaps, in other
religious bodies, or in organizations like the Salvation
Army, where t h e highest official exercises centralized
control over the personnel, finances, and actions of the
organization.
Most I N G 0
1
s are compos ed of national groups whose
members are private citizens . However, we find that the
term, "non-governmental organization," applies also to
some groups which have a distinct official character,
even though their exi s t ence does not depend upon some form
of intergovernmental a gr eement . There are, indeed,
varied gradations between the private and the intergovern
mental organization which need to be reviewed. But,
only their privileges and immunities will here be dis
cussed.
Some ING0
1
s are organized to promote the interests
of a particular group , industry or profession--steel,
Coca Cola, cocoa, cooper atives , nursing, and chemistry.
187
Some are created to advance a movement, for example,
arbitration, standardization, world federation, calendar
reform. Still others are organized to perform a particu
lar task, such as to facilitate the exchange of students
and teachers, administer relief, prevent blindness, or
promote religion. Other organizations are interested
in scientific research and the exchange of inf'ormation.
The ING0
1
s usually function as a gents of interna
tional understanding, as molders of public opinion, and
as pressure groups, both on the national and interna
tional level. As existing ING0
1
s grow and as new ones
are created, bonds of friendship are strengthened and
better international understanding results. These organ
izations make it possible, through their national members,
f or the countless number of people participating in local
groups in all countries to become part of an international
community. Their horizons are raised. Their allegiance
is extended beyond national frontiers. INGO's are
s t eadily embracing more and more people within their
.
activities, as they organize new member associations and
assist their national units to widen their own membership
r eaching out to the grass roots of their countries.
M any individuals from different countries, some influential
188
in their communities, come to know each other per anally
through the international conferences and congresses
which are held by the international non-governmental
organizations. The number involved is astonishingly
large: twenty t housand Catholics attend the Eucharistic
Congress; fifty thousand Boy Scouts, from forty-two
countries, meet in a World Jamboree; twelve thousand
dentists hold a Congress of the International Dental
Federation; and four thousand engineers and technical
experts take part in a World Power Coru'erence.
I. THE LEGAL SETTLE NT OF DISPUTES
Today, more than ever before, it has become more
and more an accepted practice ror international non~
governmental organiza t ions (INGO's) to establish procedures
and machinery to facilitate the settlement of disputes
arising between their members, or between individuals
or firms closely identified with their work. Also among
ING0
1
s there are personal quarrels, organizational
disputes over policy and other matters, and at times
disagreements between member associations of one country.
INGO' s have contributed very much to th.e organization
necessary for the settlement or these private disputes.
189
Their action has been at the following three distinct
levels:
1. The organized settlement of disputes brought
about through the conciliatory efforts of an INGO , which
prove very successful bec ause of the prestige of the
organization or the prominence or its officers .
2 . In many varied fields INGO's have established
rul~s of arbit·rat on binding on their members . At times
reference is made t o the rules already established by
another INGO. I n this same level , provisions have been
made for clauses t o be inserted into contracts , making
obligatory the settlement of a dispute arising under
them by means of conciliat ion or arbitration.
3• The t hi r d level involves the establishment ,
not only of these contract clauses or rules of procedure ,
but also the setti ng up or an international organ to
deal with t he dispute . The most outstanding institution
of this kind is the Court of Arbitration of the Interna
tional Chamber of Commerce . This Court, since its estab
lishment in 1923, has dealt with over one thousand
commercial ca s e s . The creation of such a Court , which,
perhaps, only a powerful INGO such as the International
Chamber of Commer ce could possibly organize, filled a
need whi ch no of ficial a gency could meet. This need was
190
explained by its president, Nicholas Politis, in the
following terms:
We know the difficulties encountered in settling
foreign commercial disputes by means of a recourse
to law: which to choose of the national or of the
foreign court? If the national court is applied to,
its . judgment will have to be enforced abroad and this
is, in general, a matter of considerable difficulty.
If a foreign court is resorted to, the issue is
submitted to judges whose language and legal spirit
are often unfamiliar to the plaintiff, who only too
often may feel--rightly or wrongly--that this foreign
court is inclined to be somewhat biased in favor of
its compatriot. It was, therefore. natural that an
effort should have been made with a view to substitut
ing private arbitral jurisdiction for State courts.2
This Court provides the means for settling dis
putes arising out of transactions between private commer
cial organizations, and businessmen, of different coun
tries. Many of these organizations include in their
contracts the arbitral clause drawn up by the Interna
tional Chamber of Commerce Court. This clause provides:
All disputes arising in connection with the present
contract shall be finally settled under the Rules of
Conciliation a~d Arbitration of the International
Chamber of Commerce by one or more arbitrators
appointed in accordance with the Rules.3
2
Nicholas Politis, "The Court of Arbitration of
the International Chamber of Commerce," International
Chamber of Commerce Exce tional Grou Meetin (Paris:
Ju..~e 2 , 193 , P• 1.
3
nternational Chamber of Commerce, Information
Pamphlet (Paris: October, 1935), P• 15.
191
The work of INGO's in advancing the principle of
conciliation, arbitration and legal settlement has not
been limited to the private field only. Their action,
since the early days or The Hague Peace Conferences,
has been a powerful force behind the movement for the
peaceful settlement of disputes between nations by legal
methods. They have also contributed greatly to the
movement for codification of international law. They
have influenced international treaties or conventions and
also the creation of intergoverm~ental organizations, all
of which affects international law in the broad sense.
William Martin, well known authority on interna
tional law, claims for the Red Cross, an INGO, a three
fold influence on the development of international law:
1. In influencing the movement for the codifica
tion of international law;
2. In causing the humanitarian ideas and moral
aims which inspired the Geneva Convention to enter
the law of war;
3. In influencing the move~ent toward the organ
ization of international life.~
4w1111am Martin, The Red Cross As I See It (New
York: Carnegie Endowment for International Peace, 1932),
P• 112.
II. INTERNATIONAL NON-GOVERlrMENTAL ORGANIZATIONS
1
PRIVILEGES THROUGH THE LEAGUE OF NATIONS
192
Because of the personal connections resulting from
the interrelationship of the League of Nations and INGO's,
the latter enjoyed numerous privileges and immunities
for the first time. The League of Nations invited ING0
1
s
to send representatives to League c_ ommittees, conferences,
etc., and the League itself was often officially repre
sented at the international conferences or these private
organizations. Besides this type of official relation
ship, there were many indirect connections. Official
delegates to the League of Nations Assembly were often
prominent in the activities of INGO's and in many cases
members of the League Secretariat were closely associated
with INGO's as were many experts, from ING0
1
s, appointed
to serve on special League Committees, and thus enjoyed
the status of the League of Nations officials and their
privileges and immunities.
To illustrate such legal relations between the
INGO's and the League, the following examples may be
mentioned. The Communications and Transit Committee of
the League of Nations was in constant collaboration with
their international organizations of a non-governmental
nature.
193
ight INGO's were invited to send representatives
to the nineteenth session of the Consultative and Tech
nical Commission on Communications and Transit. From
February, 1936, to June, 1936, the Communications and
Transit Section of the Secretariat was represented at
twenty-two meetings sponsored by ING0
1
s. The Committee
on Social Questions of the League of Nations had nearly
twenty international associations and organizations, of
non-governmental character, as "corresponding members."
The International Federation of League of Nations Soci
eties was represented in the League's Advisory Committee
on the League of Nations Teaching and enjoyed, as long
as the Committee was in session, the privileges and
immunities other League of Nations officials had enjoyed.5
The League of Nations Committee on Statistical
ethodology was nominated jointly by the League and the
I nternational Institute of Statistics, an INGO, and "the
recommendations put forward by the Coa"Tlittee were sub
mitted to the general conferences of the Institute before
circulation to the Member States for their consideration~•
6
5League of Nations, Handbook of International
Organizations {Associations, Bureaus, etc.) (Geneva:
1938), P• 97•
6
bid., PP• 101-02.
194
In 1924, the Council of the League of Nations appointed
Professor Pittard, on the nomination of the International
Red Cross Committee, an INGO, and the League of Red Cross
Societies, also an INGO, as the administrator of the
relief funds granted to Albania by the League. He was
granted all the privileges and immunities the League of
Nations officials usually enjoyed.7
The League of Nations invited eight INGO's to its
conrerence held in Java (1936} to consider the problem
of the traffic in women and children in the Far East.
All of these INGO's enjoyed the same privileges and
immunities in the Dutch East Indies which the other League
representatives had. The same privileges were accorded
to the international transport workers organizations
(INGO's), which regularly were invited to send representa
tives to take part in the general conferences of the
League's Communications and Transit Organizations. These
organizations enjoyed, also, extensive rights, "not only
the rights of speaking, but also of presenting, in the
same manner as other States Members in the Conference,
7
League of Nations, "Economic and Financial Organ
ization of the League of N ations," Information Section
Pamphlet (revised edition, 1931), pp. 107-08.
195
propositions to be voted upon.
118
Although these organ
izations could not vote, we find in a number of cases
like that of the International Chamber of Commerce, that
ING0
1
s were given voting rights equal to those of govern
ments.
There were still other types of privileges that
INGO's enjoyed through the Lea ue of Nations. For
example, the League ranted INGO's certain privileges
concerning the use of the Lea gue lib ary. It also pro
vided "special facilities" at League of Nations' meetings
for duly accredited representatives of "unofficial
organizations," at the request of the Federation of
Private and Semi-Official nternational Organizations,
which was established at Geneva.9 n the early days
the League subsidized the publication of the Code des
Vo ex et Resolutions des Congres nternationau.x by a
grant of p• l,500 to the Union of International Associa
tions. The resolutions of ING0
1
s were often printed in
official publications of the League of Nations. For
8
rbid., P• 287.
9
The Federation of Private and Semi-Official
Organizations, The Federation of Private and Semi-Official
Organizations Established at Geneva , ts Aims and Activi
ties (Geneva: 1937), PP• 5-9•
196
example, the resolutions of the International Federation
of League of Nations Societies were printed in the Official
Journal or the Journal of the Assembly year after year.
In its documents the League published yearly summaries
of the activities of many INGO•s. Among these the rnter
national Law Association and the International Association
of Penal Law.
10
III. INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS'
PRIVILEGES THROUGH THE UNITED NATIONS
The official recognition of the status of INGO's
by the United Nations is to be found in Article 71 of
the Charter.
11
This Article recommended that the Economic
and Social Council of the United Nations "make suitable
arrangements for consultation with non-governmental
organizations which are concerned with matters within
its competence."12
Thus, on June 21, 1946, the Economic and Social
10
League of Nations, Penal and Penitentiary Ques
tions Re ort Submitted b the Fifth Committee of the
Assam y, September 3, 93. League of Nations Document
A/62, w. A37 •
11
see supra, p. 185, for text of Article 71.
12
Ibid.
197
Council, in accordance with Article 71, put into effect
arrangements for consultations with non-governmental
organizations. These arrangements went further in
extending to non-governmental organizations opportunities
for the presentation of their views than have ever been
granted to such groups by any national government. The
United Nations thus began a great experiment in legal
relations between the governmental and the non-govern
mental aspects of society. The United Nations took a
great step, indeed, toward the establishment of a true
and full democracy on the international level. Among
the principles guiding the determination of eligibility
for "consultative status" are:
The organization shall be concerned with matters
falling within the competence of the Council with
respect to international, economic, social, cultural,
educational, health and related matters, and the
questions of human rights.
Its aims and purposes "shall be in conformity with the
spirit, purposes and principles of the Charter," and it
"shall be of recognized standing and shall represent a
substantial proportion of the recognized persons within
the particular interest field in which it operates."
It shall "have authority to speak f or its members through
its authorized representatives," and "shall be interna
tional in structure with members who exercise voting
198
rights.
11
(National organizations may be recognized .for
consultative status in some exceptional cases.)
1
3
In general, the United Nations o.fficially recog
nizes three categories of ING0
1
s as to consultative
status. They are:
(A) Organizations which have a basic int. erest in
most of the activities of the Council, and are
closely linked with the economic or social life of
the areas which they represent (to be known as organ
izations in Category A).
(B) Organizations which have a special competence
in and are concerned specifically with only a few of
the fields of' activities covered by the Council (to
be known as organizations in Category B).
(C) Other organizations, not in.continuous con
sultative relationship, but entered on the "register"
of the Secretary-General for the purpose of ad hoc
consultations (to be known as organizations in Cate
gory C). ltj.
The ING0
1
s in all categories,
1
5 have the privilege
o.f sending their authorized representatives to attend the
meetings of the Council and its Commissions. They are to
enjoy the status o.f consultant in such meetings. The
13
united Nations, Yearbook, 1947-48, PP• 507-08.
1
4-rbid.
l5An up-to-date listing or the organizations in
all categories is to be found in: Lyman c. White, Inter
national Non-Governmental Or anizations (New Brunswick,
N.J.: Rutgers Un vars ty Press, 19 , Appendix I.
199
ING0
1
s representatives have the privilege of taking part,
officially, in the discussions with governmental repre
sentatives. The organizations in Categories A and B mE\Y
submit written statements which are distributed as offi
cial documents to all Members of the United Nations and
to the specialized agencies. The representatives of
ING0
1
s have, on many occasions, the privilege of making
oral statements to the Council and the Commissions. They
also have the privilege of expressing their views to the
Council on the report of the Commissions, or on other
matters, through the Council Committee on Non-Governmental
Organizations, which is composed of the President of the
Council and seven members of the Council.
Any INGO in Category A has additional privileges.
It may ask the Committee to request the Secretary-General
to place an item on the provisional agenda of the Council.
A decision of the Committee not to grant the request,
however, is final.
Besides consultative status and its privileges in
the Economic and Social Council, INGO's may send written
statements on matters before the General Assembly, the
Security Council, and the Trusteeship Council. The
Trusteeship Council may and, in fact does, often examine
petitions from INGO's in trusteeship territories which
200
may allege that the government of the territory in ques
tion is not fulfilling its obligations toward the peoples
concerned.
There are still many ING0
1
s without official recog
nition by the United Nations, thus without consultative
status. For such an INGO there are special facilities,
which may also be utilized by the consultative organiza
tions. A special Section for Non-Governmental Organiza
tions has been set up in the Department of Public Infor
mation, which accredits "observers" of non-governmental
organizations which are "able to act as clearing-houses
for information, or undertaking information programs
through lectures, publications, or other means calculated
to develop public understanding of the United Nations.
1116
The "observers" are granted special facilities f'or attend
ing meetin s, securing documents, and using the Library
of the United Nations. They also have the privilege to
be invited to special background conferences on the
activities of the United Nations and the specialized
agencies.
1
7
16
united Nations, Economic and Social Council,
"Arrangements of the Economic and Social Council of the
United Nations for Consultation with Non-Governmental
Organizations," Guide for Consultants, United Nations
Document E/INF/23, JO, April, 1948,i:p. 10-12.
17
Ibid., P• lJ.
201
IV. THE LEAGUE OF RED CRO S SOCIETIES
The number of ING0
1
s is astonishing indeed.
According to one authority on this particular aspect of
international organization, there are about twelve thou
sand INGO's in the world today.
18
From 1850 to 1949,
they held approximately six thousand conf'erences.
1
9 It
is obvious, therefore, that in this study it is not
possible to discuss the status, privileges and immunities
of more than a few selected I GO•s .
Because of the general importance of this organ
ization, we choose to cite the International Red Cross
as an example of the most powerful INGO which has served
as a promoter of good will, peace and understanding between
the peoples of the world. The International Red Cross
is important for our present purpose because it has
behind it not only very strong popular support, but also
the backing of governments.
The international status of the Red Cross may be
credited to its close association with the Geneva Conven
tions. In fact, the Geneva Conventions are inseparable
18
white, op. cit., P • 4•
19
Ibid.
202
from the Red Cross, in their historical origin as in
t heir living reality. It is not the purpose of this
study to go into great detail in discussing the historical
background of the Red Cross. However, it may be suffi
cient to mention here that the Committee of Five, nomi
nated by the Geneva Public Utility Society to study
Dunant's proposals, constituted itself on February 17,
1863 into the "International Standing Committee for Aid
t o W ounded Soldiers." This Committee was the founding
a gency of the Red Cross and it promoted the Geneva Con
vention. In 1880, it adopted the title, "International
Committee of the Red Cross," which remains unchanged.
This Committee, almost immediately, convened an unofficial
i n t er national Conference to study ways and means of
dealing with the inadequacy of the medical services of
armies in the field. The Conferer1ce, to which sixteen
States sent representatives, founded the Red Cross in
1863 .
As the 1863 Conference did not intend to deal with
problems of international law, it was by a recommendation
annexed to its Resolution that it asked for the "neutral
ization" of medical personnel and of the wounded them-
203
selves.
20
Less than a year later the recommendation was
given effect when the Swiss Federal Council called a
Conference which, attended by representatives of the same
powers, this time as plenipotentiaries, drew up the 1864
Geneva Convention.
21
Since then the Red Cross has come
into existence with a definite status in international
law.
The 1864 Convention embodies the great principle
that members of the armed forces who are wounded or sick,
and thus harmless and defenseless, must be cared for and
respected without distinction of nationality. But, for
our purpose, the Geneva Convention has introduced some
thing new in international law. It · provided protection
on the battlefield to a private activity such as the work
or the voluntary relief societies, like the Red Cross
and other GO's.
The 1864 Convention was followed by three more
Conventions at Geneva, mainly for the purpose of main
taining the basic principles of the first Geneva Conven
tion. The latest Convention, however, has a special
20
nternational Committee of the Red Cross, Geneva
Convention for the Amelioration of the Condition of the
ou.nded and ick in Armed Forces in the Field {Geneva:
1952), P• 10.
21
Ibid., P• 17.
204
significance. It introduced the clauses recognizing
the advent of medical aircraft, the extension of the use
of the emblem to the peace-time activities of the National
Red Cross Societies, and the recognition and repression
of violations of the Convention.
Once the Red Cross had established its interna
tional status, its privileges within the territories of
the high contracting powers of the Geneva Convention
became obvious. The formation of the League of Red Cross
Societies in 1919 andt he consequent broadening of the
program of the Red Cross to include the relief of suffer
ing in peace as well as in war led to a more general
acceptance of the Red Cross idea throughout the world,
especially in South America. From 1919 to 1948, the
number of national Red Cross Societies increased by about
forty.
22
In 1947, national societies in practically
every Christian country of the world represented a total
membership of over forty m.illionw
The League of Nations cooperated with the Red
Cross organization and its personnel by providing it wi t h
special privileges concerning transportation, identifica
tion cards, protection of property, use of the League's
2
2wh1te, op. cit., P• 182.
205
libraries, and even some financial aid from time to time.
Through the United Nations the facilities f or the League
of the Red Cross Societies have advanced even further
over those provided by the League of Nations . The United
Nations officially recognized the Red Cross by granting
it a Category A consultative statua.
2
3
V. INTERNATIONAL ALLIANCE OF OMEN
FOR SUFFRAGE AND EQUAL CITIZEN HIP
The contributions of international non-governmental
organizations (ING0
1
s) in the sphere of soci al welfare
are impressive indeed. Among their various fields of
work is the attempt to raise the status of women through
out the world. A good number of international women's
organizations has worked for the advancement of women's
r i ghts, and some have been particularly concerned with
nationality rights. Among those functioning for a con
siderable length of time and gaining international recog-
-
nition, we may mention the I nternational Alliance of
omen for Suffrage and Equal Citizen~hip. Thi Alliance,
which is located at London, in 1938 had a f filiated soci
eties in Argentina, Australia, Bermuda, Br azil, Ceylon,
23
Ibid., P• 310.
206
Egypt, India, Japan, the Netherlands rndies, New Zealand,
Palestine, Syria, the United States, Uruguay, and twenty
three European countries. In nearly all countries, before
the outbreak of war, where agitation was permitted, the
Alliance enjoyed special status and was provided with
the necessary facilities for its functioning.
Concerning nationality rights, the Alliance is
said to have originated in 1923 the demand that an inter
national conf'erence of governments should be called to
deal with the question. The Swedish Government, having
been approached both by the Alliance and by the Swedish
national society belonging to it, brought the matter
before the League of Nations.
2
4 In the Codification
Conference of the League of Nations (1930), the Interna
tional Council of Women, together with the Alliance,
held a joint demonstration in favor of giving women "the
same right as a man to retain or to change her nation
ality."25 This demonstration was supported by ten other
international organizations and many national groups.
The Codification Conf'erence of the League of Nations not
2
4rnternational Alliance or
qual Citizenship, Congress Report
P• 179•
25
Ibid., P• 181.
omen ror Suffrage and
{London: 1929),
only invited representatives of the Alliance to take
part in the discussion, but also adopted a modified
resolution to meet the Alliance's demands.
207
The establishment of the United Nations furthered
the international recognition of the International
Alliance of Women not only through the grant to the
Alliance of consultative status, but also by its invita
tion to take an active part in the United Nations Commis
sion on the Status of omen. When in 1949 the Secretary
General of the United Nations made all the arrangements
for holding the 1949 session of the Commission in Beirut,
Lebanon, he insisted on facilitating the participation ot
the International Alliance of W omen, which took part in
the session, by according its representatives all privi
leges and immunities granted to the Specialized Agencies
and the Secretariat. In a letter sent to the Secretary
General by the Government of Lebanon, the latter guaran
teed the following privileges and immunities:
A - The premises of the Commission shall remain
at the disposal of the Commission for the duration
of its session, the duration to include a preparatory
period to commence fifteen days before the date
appointed for the opening of the session and a liqui
dation period of fifteen days to follow the official
closure of the Commission's session.
B - Freedom of access to the premises of the Com
mission is guaranteed without restriction. The
Lebanese Government undertakes to authorize the entry
208
into Lebanon, without vis costs or delay, and the
sojourn in Beirut for the duration of their functions
with, or mission to, the Commission, of the following
persons:
a - Representatives of Member States, and
officials of the United Nations.
b - Representatives of the press, radio,
cinema and any other information agencies approved
by the United ations. The United Nations will
communicate to the Lebanese Government, eight days
in advance, the names of persons concerned;
c - ersons designated by the specialized
agencies or the international non-governmental
organizations admitted to consultative status by
the United N~tions, to represent them before the
Comrnission.2b
vr • . ST TUTE O INTERNATIONAL LA
The work of international non-government organiza
tions in the field of international law is of major impor
tance in the development and progress of the latter. Its
efforts in advancing the principles of conciliation,
arbitration and judicial settlement has not been limited
to the private field only. The Academy of International
Law, the International Association of Penal Law, and the
nternational Law Association are only a few examples or
NGO's which have great impact on the progress of the law
26
United ations, Handbook on egal Status, rivi-
leges and mm.unities ( ew York: September, 1952),
PP• 149-50.
209
of nations, and enjoy great privileges besides their
legal recognition as possessing international personality.
Foremost among these INGO's, however, is the
Institute of International Law, which was founded in 1873
•
at Brussels and is composed of the leading international
lawyers of the world. The purpose of the Institute is
to promote the progress of international law:
1.- By endeavoring to formulate the general prin
ciples of the science in a way which will respond
to juridical conscience of the civilized world;
2.- By giving its assistance to every serious
attempt at the gradual and progressive codirication
of international law;
3.- By urging the official adoption of the prin
ciples which have been recognized as being in harmony
with the needs of modern society;
4•- By contributing, within the limits of its
competence, to the maintenance of peace and the
observation of the laws of war;
5-- By examining the difficulties which arise in
the interpretation or application of the law ard by
pronouncing reasoned legal opinions, when needed, in
doubtful controversial cases;
6.- By contributing by means of publications,
public instruction and other means, to the triumph
of the principles of justice and humanity which ought
to regulate the relations of all peoples among them
selves.27
27
tatute of the Institute or International Law,
Article I.
210
The Study Commission of this Institute has covered
every aspect of the law, and its work since its beginning
days has been internationally acknowledged as most useful
and constructive. An examination of almost any treaty
or any legal instrument in international law published
since the organization of the Institute would show the
dependence of teachers and students of international law
upon its resolutions. But its legal personality and
its privileges as an international organization are the
result of its recognition, and the acceptance of its
resolutions as an authority by most, if not all, foreign
governments in international controversies. From many
examples one will perhaps suf'fice. In the correspondence
with Guatemala concerning the expulsion of Mr. Hollander,
an American citizen, M r. Richard Olney, then the Secretary
of State of the United States, quoted and relied upon
the resolutions of the Institute of International Law
concerning the ri ght of a government to expel aliens from
its midst and the conditions to which such expulsion
should be subjected.28
n international arbitrations, the resolutions of
the Institute have been legally invoked and relied upon
28
James Brown Scott (ed.), Resolutions or the
Institute of International Law ( ew York: 1916), pp. 5-6.
211
by arbitrators in reaching decisions and thus they have
been quoted extensively as authoritative. A distinguished
American statesman , Elihu Root, has repeatedly referred
to the resolutions of the Institute, and its legal impact
upon t r eatises on international law, in the diplomatic
correspondence of nations, and in the adjustment of
controversies by arbitration, as furnishing the framework
of various conventions of the First and Second Hague Peace
Conferences.
29
George A• Finch, Assistant Director of the Division
of International Law of the Carnegie Endowment for nter
national Peace stated in 1937:
The projec t for international arbitral procedure
adopted by the nstitute of International Law c nsti
tuted an important basis for The Hague Conventions
for the Pacific Settlement of nternational Disputes.
So, too, the Institute•s Oxford Manual of Laws and
Customs of War on Land was of no small aid to the
framers of The Ha ue Conventions on that subject.JO
The proceedings of The Ha ue Conference of 1899
support M r. Finch ' s statement. For example, the report
to the Conference from the Commission on the Pacific
Settlement of International Disputes stated that the
29
Ibid., P• 7•
JOGeor e A. Finch,
11
The Institute of' International
Law.," American ociet of International Law, Proceedings,
1915, PP• •
212
Institute "has for a long time led the way in working
out rules for arbitrations.
11
3
1
In regard to the laws of
war, we find the following in the report to the Conference
from the Commission on the Laws and Customs of War:
The subcommission consequently adopted ••• a
more precise wording which closely follows the text
of Article 22 of the manual of the l~ws on land of
the Institute of International Law.3 ·
The work of the Institute as a technical basis for
the Second Hague Conference is apparent in such matters
as the Conventions on opening of hostilities, on conver
sion of merchant ships into warships, on sea-mines, on
bombardment by naval forces, on the rights of capture
in naval warfare, on the creation of an International
Prize Court, and on the rights and duties of neutral
powers in naval war.33
Since the Economic and Social Council of the United
ations has granted the Institute a consultative status,
in 1948, it is now entitled to send representatives to
the United Nations Commission on International Law, not
only to participate in the discussion of the Commission,
but also to initiate any resolution, if it wishes, for
Jllbid.
JJibid., P• 26.
213
consideration. As long as the Commission is in session
the representatives of the Institute are entitled to
enjoy all the privileges and immunities enjoyed by the
United Nations Commission.
HAPrER IX
REGIONAL ARRANGEMENTS
The study of the legal status, the privileges and
immunities of the League of Nations, the United Nations,
the Specialized Agencies, and the International Non
Governmental Organizations is based on the distinctive
feature they all share, namely, their universal character,
or at least their tendency towards universality. There
are, however, regional organizations whose problems are
somewhat different. The position of these organizations
varies, along with the importance of their privileges
and immunities.
The exact meaning of "regional arrangements or
agencies" is not made clear either by the League of
Nations or by the United Nations. Under the Covenant
of the League, regional arrangements were entered into,
such as the Little Entente, the Balkan Entente, and the
Locarno Agreements. In fact, the League of Nations,
although it tended to be primarily concerned with the
affairs of Europe, did not introduce a clear definition
for such arrangements. In the course of the discussions
at San Francisco, however, a proposal was made by the
215
Egyptian Delegation to i ntroduce a definition of regional
arrangements into the Charter of the United Nations.
The amendment proposed read as follows:
There shall be considered as regional arrangements
organizations of a permanent nature grouping in a
given geographical ar ea several countries which, by
reason of their proximity , community of interests or
cultural, linguistic, historical or spiritual affini
ties, make themselves j ointly responsible £or the
peaceful settlement of any disputes which may arise
between them and for the maintenance of peace and
security in their region , as weli as for the safe
guarding of their interests and the deyelopment of
their economic and cultural relations.
1
The regional arrangements and agencies to which
Article 52, above, refers, include those which were in
existence or in process of coming into being at the time
the Charter entered into f orce as well as those which
subsequently have been es t ablished. It is possible,
therefore, to emphasize at least five such arrangements
as being in operation at the present time. These include
the Organization for European Economic Cooperation, the
European Coal and Steel Community, The North Atlantic
Treaty Organization, The Lea gue of the Arab States, and
the Organization or the American States.
1
united Nations, "The United Nations Conference on
International Organization, " Yearbook, 1946-47, P• 27.
216
I. THE ORGANIZATION FOR EUROPEAN ECONOMIC COOPERATION
The Organization for European Economic Cooperation
(OEEC) is a regional organization established to promote
Europe's recovery and defense. On July 3, 1947, Mr. Bevin,
the Foreign Minister of Great Britain, and Mr. Bidault,
the Foreign Minister of France, invited all the European
countries except Russia, Germany, and Spain to attend a
conference in Paris on July 12 to discuss certain propos
als, including that of George c. Marshall, the Secretary
of State of the United States, re arding the European
economic problems .
Sixteen countries, in all, attended. In addition
to the United Kingdom and France, there were Austria,
Belgium, Denmark, Greece , Iceland, Ireland , Italy,
Luxemberg, the Netherlands, Norway, Portugal, Sweden,
Switzerland, and Turkey.2 The Conference made important
progress. In four days it adjourned after setting up a
Committee of European Economic Cooperation to prepare a
report on the economic needs and capabilities of Europe
as a whole , including requirements for outside help.3
2
united Nations, Yearbook, 1948-49, PP• 43-4•
3
rts organization and terms of reference are in
cluded in Appendix A of the Committee of ~uropean Economic
Cooperation General Report.
217
The Conference also established four Technical Committees
to collect data on the needs and assets of the sixteen
nations in food and agriculture fuel and power, iron and
steel, and transport.
Two weeks after the Congress of the United States
passed the Foreign Assistance Act of 1948, the sixteen
uropean nations signed on April 16, 1948, a Convention
establishing the Organization for European Economic
Cooperation. This Convention, therefore, is the legal
instrument of the OEEC, and its validity is applied not
only to the sixteen members, which signed it, but also
to other international organizations such as the United
Nations and the Specialized Agencies.
Article 22 of the Convention establishes the ground
of the usual functional criterion as regards its legal
capacity and immunity, the conditions of which are stated
in Protocol of the O :&::. There is no doubt that the
O 1W possesses international personality. This status
results, in particular, from its permanent character.
its executive powers, and its capacity to conclude inter
national agreements, especially with non-member-states
and other international organizations or entities (such
as the International Monetary Fund, the Bank of Inter
national Settlement, and the International Bank for
218
Reconstruction and Development).
The privileges and immunities of the OEEC are a
natural result of this international personality and to
this extent an additional Protocol, No. 2, has a declar
atory effect from which certain consequences may follow.
Article I of the Protocol states that "the Organ
ization shall have legal personality," and this means
legal personality under municipal law.
Article 2 of the Protocol provides for the juris
dictional immunity of the Organization, its property and
assets, except in the case of express waiver in any
particular case, but in no circumstances does this extend
to measures of execution.
Up to the present time, it may be of interest to
mention, the Organization has been involved in one impor
tant case which is not concluded, since the French Court
of Cassation has still to deliver the judgment. The case
concerns an action brought by a syndicate of joint-owners
of a building society who sought to prevent the construc
tion of a building for the use of the officies of the
Organization on a site acquired by the latter in Paris.
The plaintiff claimed to be entitled to an easement in
r espect of thi s site, by virtue of which it was only per
mi t ted to erect dwelling houses, thus excluding commercial
219
and industrial buildings and offices as well.
On the preliminary question as to whether the
Organization was entitled to claim immunity, the President
of the Civil Court of Seine, France, decided on July 25,
1951, that he had jurisdiction, &nd relied on a technical
argument of a purely procedural character which, however,
may not be correct, both as regards the facts and the
law.4
The case has not been concluded. rt shows once
again the difficulty that minicipal courts find in appre
ciating the true character of jurisdictional immunity.
Hence, we notice in many cases of that nature the charac
teristic tendency to resort to technical reasoning or
purely procedural methods for evading these difficulties.5
rr. THE EUROPEAN COAL AND STEEL COMMUNITY (ECSC)
For our present purpose, the European Coal and
Steel Community (the Schuman Plan) is of special interest
from the point of view of immunity. But i t 1s important,
J
4con ress of the Economic Coo eration Administra-
tion, Eleventh Report Paris: , PP• 23-2.
220
before entering the discussion of that immunity, to b~ie:fly
indicate the origin of the Plan itself n this connec-
tion it may be mentioned that the European Recovery
rogram phase of the Organization for European conomic
Cooperation was highly successful. Production and trade
throughout astern Europe rose spectacularly. ndustrial
production increased 45 per cent between 1947 and 1950,
bringing annual production to about 25 per cent above
the 1938 leve1.
6
Toward the end of 1950 the astern
European countries reached the production targets original
ly set for 1952.7
It is fair to say, therefore, that the European
Recovery Program accomplished its mission on schedule.
It is hard to predict , however, whether a fuller economic
union in Western Europe will be realized in the near
future. But the OEEC has provided a new constructive
element in the life of Western Europe . Actually the
boldest step in this direction was related, indirectly,
to the Oh'EC. It is the Plan which was announced by
Robert Schuman, the Foreign Minister of France at that
time, on behalf of the French Government. This proposal,
6
bid.
221
which is known as the Schum.an Plan, was another step
toward the "functional integration" of Europe. rts
political motivation, however, was to make armed conflict
between France and Germany "not only unthinkable, but
materially impossible.
11
8 The Schuman proposal has pro
vided for a unified six-nation coal, iron and steel com
munity. After year-long negotiation between these six
European countries, a Treaty Constituting the European
Coal and Steel Community, ECSC, was signed on April 18,
1951, by the foreign ministers of France, the German
Federal Republic, Italy, Belgium, The Netherlands, and
Luxembourg. It was ratified, subsequently, by the respec
tive parliaments and entered into force on August 10,
1952. By May 1, 1953, common markets for coal, steel,
and scrap iron had become operative, as tariffs, quotas,
and exchange controls on these materials were swept away.
The Community has a federal-type organization with
authority divided between institutions representing the
uropean Coal and Steel Community and institutions repre
senting the states. The High Authority of the Community
is composed of nine members designated for six years and
8
Robert Schum.an, The New York Times, May 11, 1950,
222
chosen for their general competence. They are not respon
sible to their national governments; neither do they
report to them, nor do they receive instructions from
them. Each state, in turn, agrees to respect their "supra
national character." The Comm.unity also has a Consulta
tive Committee, consisting of fity-one members, an
Assembly, composed of representatives of the peoples of
the members of the European Coal and Steel Community, a
Council, composed of one Minister representing each member
state, and a Court.
The Community is of special interest in connection
with this study because of the fact of the abandonment
of . certain measures of sovereignty by the member-states.
In certain fields there is an actual transfer of State
jurisdiction and po~er of decision and enforcement. The
Organization is highly integrated at the present time.
It is given legal personality by Article 6 of the Treaty,
which is highly satisfactory from the point of view of
legal technique by distinguishing it from legal capacity
under municipal law (which it also en·joys). The fact that
several non-member-states have sent permanent delegations
of a diplomatic character to the High Authority of the
ECSC, and in so doing have impliedly recognized its
223
international personality, shows that the Comm.unity repre-
sents a new and, indeed, striking phenomenon in the field
of international institutions. This is also shown by
the fact that the Community is treated as a single con
tracting party in the General Agreement on Tariffs and
Trade.
Moreover, on February 7, 1953, the Organization
for European Economic Cooperation, discussed above, has
recognized the Community as a single entity with regard
to mutual relations. The Community, as a result, may
enter into direct relations with private persons, or
parties, under both private and public law.
Article 76 of the Treaty provides that "the Com
munity shall enjoy in the territory of member-states the
privileges and immunities which are necessary for the
carrying out of its functions under conditions laid down
in the Treaty.
11
9
Here, again, we find the criterion of functional
necessity. It is of importance to notice that as regards
immunity from jurisdiction the Protocol, attached to the
Treaty, concerning the privileges and immunities of the
9
naniel s. Cheever and H.F. Haviland, Organization
for Peace (New York: Houghton Mifflin Company, 1954),
P• 747•
224
Community, falls short of the normal position of large
international organizations, with regard to relations
with member-states. The Protocol, to explain this view
more clearly, provides for the inviolability of the
property and assets of the Comm.unity which cannot be made
the subject of any judicial or administrative enforcement
measures without the authorization of the Court.
10
Thus,
there is immunity from execution but not from jurisdic
tion.
The European Coal and Steel Comm.unity, again, is
not of the same character as the international organiza
tions which have been considered so far in this study.
It is a much more highly integrated and centralized insti
tution with a marked functional and a federalist tendency.
The six member-states have a relatively uniform conception
of state immunity, whether this is the immunity of the
local state or of foreign states. On the internal level
the state is subject to the principle of legality. It is
in a very large measure responsible for its acts before
its own courts.
,
The European Coal and Steel Community presents,
indeed, not only an international organization or
225
supernational phenomenon, but also a type of coordination
of municipal institutions common to the various states.
The explanation of such a system is to be found in every
organization of the Community. It possesses, as mentioned
above, a court of justice with a wide jurisdiction, which
it is difficult to parallel in the traditional types of
judicial organization. The main function of the Court is
to deal with administrative disputes (a matter which
falls outside the scope of this study). On the other
hand, the Court can also exercise functions which are
similar to those of ordinary national courts. To clear
up this point, it may be of interest to cite Article 42
of the Treaty, which reads as follows:
The Court shall have such jurisdiction as may be
provided by any clause to such effect in a public
or private contract to which the Community is a
party which is undertaken for its account.11
Paragraph 3 of Article 40 is of interest in this
connection, since it provides:
All other litigation between the Community and
third parties, other than that relating to the
application of the provisions of the present Treaty
and implementing regulations shall be brought before
the national tribunals.12
The system adopted by the Community is, therefore, very
226
clear and consistent. There is no immunity from juris
diction as regards member-states since disputes are
normally subject to the jurisdiction of the national
courts.
It has been mentioned above that the Court of
Justice, of the Community, deals also with disputes aris
ing out of contracts which contain a clause to this
effect. rt seems, however, that the Treaty sought to
withdraw the interpretation of certain contracts from the
jurisdiction of national courts, which might sometimes
be tempted to favor their own nationals. We may, in this
connection, find a kind of analogy with the system adopted
in the United States. The Federal Courts have jurisdic
tion when the parties are citizens, or residents, of
different states--so-called "diversity of citizenship"
provision.
1
3
The first article of the Protocol grants the
Community an immunity from execution which is not absolute,
since the Court may authorize the application of judicial
or administrative enforcement measures. This method of
authorization is typical of the special character of the
Community.
1
3see the diversity of citizenship provision, The
Constitution of the United States, Article I II, Section 2.
227
The Community has enjoyed many privileges, not only
by recognition of it by the United Nations as a Regional
Arrangement, but also in the territories of its member
states. The High Authority does not own a coal mine or
operate a steel mill. But it has wide power and authority
to restrict the movement of coal and steel, and to restrict
import and export duties "or charges with an equivalent
effect." The Comm.tmi ty, through its High Authority, has
the power, in fact, to police both the member-states and
the coal and steel industries.
1
4
III. THE NORTH ATLANTIC TREATY ORGANIZATION
The North Atlantic Treaty Organization (NATO) is
the product of events which took place immediately after
the Second World ar. The threat of the Soviet Union and
Communist-dominated Europe provided the incentive for the
establishment of a military alliance between the United
States ani the several Western European countries. The
Berlin blockade was soon added to the shock of Czecho
slovakia's fall. So obvious was the danger that bipartisan
support in the United States developed not only for tl:1e
Marshall Plan, but also for a re ional defense pact
1
4Articles 3 and 4 of the Treaty.
228
between the United States and European nations as a means
to national security. The spearhead of this program was
the Vandenberg Resolution (Senate Resolution 239) adopted
on July 11, 1948. For the first time in history a peace
time alliance with nations outside the Western Hemisphere
was the principal objective of United States foreign
policy. The Senate had advised the President to seek by
constitutional process the progressive development of
"regional and other collective arrangements for individual
and collective self-defense in accordance with the United
Nations Charter." Such arrangements were to be supported
by "continuous and effective self-help and mutual aid,
111
5
among like-minded nations.
A delicate negotiation between the United States
and several European countries ended, almost, by the 1948
general election in the United States. The President's
inaugural address of January, 1949, included a recommenda
tion "to strengthen freedom-loving nations against the
dangers of aggression." On April 4, 1949, the North
Atlantic Treaty was signed by the twelve original powers
15
un1ted States, Depa tment of State, The Mutual
Security Program, Departm.ent of State Publ cation No. 4236,
General Foreign Polic¥ Series 52 ( ashington: Government
Printing Office, 1951), P• 19.
229
in Was~ngton, on the day following the announcement by
the State Department that official requ~sts for military
assistance had been received from the Treaty partners.
1
6
Within a few months (July 21, 1949), the Treaty
was approved by the United States Senate (82-lJ), a
decisive majority, and Congress as a whole enacted a
Mutual Defense Assistance Program to aid the partners
militarily.
Originally the North Atlantic Treaty Organization
included twelve powers, namely, the United States, Canada,
the United Kingdom, Denmark, Iceland, Norway, France,
Italy, Portugal, Belgium, the Netherlands, and Luxembourg.
But, on February 18, 1952, and following the recommenda
tion of the North Atlantic Council, Greece arrl Turkey
became full members of the Alliance. Later the same year
a momentous step was taken. A Protocol to the Treaty was
drawn up providing membership for the German Federal
Republic simultaneously with the establishment of the
European Defense Community.
1
7
The principal organ in NATO is the Council or .
16
Ibid., P• Jl.
17
A. H. Head, "European Defense," International
Affairs, Vol. 27, No. 1, January, 1951.
230
Foreign Ministers, modeled after the Consultative Council
of the Brussels Treaty. Article 9 of the Treaty provides:
The parties hereby establish a Council, on which
each of them shall be represented, to consider matters
concerning the implementation of this Treaty. The
Council shall be so organized as to be able to meet
promptly at any time. The Council shall set up such
subsidiary bodies as may be necessary; in particular
it shall establish immediately a defense Committee
which shall recommend measures for the implementation
of Articles 3 and 5.
In May, 1950, this Council sought to strengthen
its organization by appointing a continuously functioning
Committee of Deputies with a full-time staff. Defense
matters were placed under a Committee of Defense ~linisters.
There are, in addition, a Military Production and upply
Board and a Military Committee composed of the Chiefs-of
Staff of all the members. Both of these units reported
to the Defense Committee.
The legal status of NATO is made clearer in
Article 4 of the A reement si n6d by the member-states on
September 20, 1951, re arding the status, privileges and
immunities of N TO, national representatives, and inter
national staff. The Article reads as follows:
The Organization shall possess juridical person
ality; it shall have the capacity to conclude contracts,
to acquire and dispose of movable and imm.ova S
property and to institute legal proceedings.
16
office ;f the Executive Secretary, orth Atlantic
Treaty Organization and Related Documents (Paris: 1952), p. 2
231
Other privileges and immunities of the North
Atlantic Treaty Organization may be listed as the follow
ing:
1 - The Organization, its property and assets,
wheresoever located and by whomsoever held, shall
enjoy immunity from every fovm of legal process
except insofar as in any particular case of the Chair
man of the Council of Deputies, acting on behalf of
the Organization, may expressly authorize the waiver
of this immunity. It is, however, understood that no
waiver of immunity shall extend to any measure of
execution or detention of property.
1
9
2 - The premises of the Organization is inviolable.
Also its property and assets, wheresoever located, and
by whomsoever held, is immune from search, requisi
tion, confiscation, expropriation or any other form
of interference.20
3 - The archives of the Organization and all docu
ments belonging to it or held by it shall also be
inviolable, wherever located.21
4 - NATO is not restricted by any financial control,
or regulations of any kind. It may hold currency of
any kind and operate accounts in any currency. It
also may freely transfer its funds from one country
to another or within any country and convert any
currency held by it into any other currency at the
most favorable official rate or exchange for a sale
or purchase as the case may be.22
5 - The Organization has the privilege or tax
exemption in the territories of its member-states.
19
Ibid., Article 5.
20
Ibid., Article 6.
21
Ibid., Article 7.
22
Ibid., Article 8.
232
Article 9 of the Agreement, regarding the privi
leges and immunities of NATO, reads:
The Organization, its assets, income and other
property shall be exempt: (a) from all direct taxes;
the Organization will not, however, claim exemption
from rates, taxes or dues which are no more than
charges for public utility services; (b) from all
customs duties and quantitative restrictions on
imports and exports in respect of articles imported
or exported by the Organization for its official
use • •• ; (c) from all customs duties and quanti
tative restrictions on imports or exports in respect
of its publications.
6 - No censorship shall be applied to the official
correspondence and other official communications of
the Organization.
Furthermore, NATO is to have the right to use
codes and to dispatch and receive correspondence by
courier or in sealed bags, which shall have the same
immunities and privileges as diplomat~ ~ couriers and
bags.
2
3
Representatives of member-states in NATO enjoy the
same privileges and immunities as those accorded to diplo
matic representatives and their staff of comparable rank.
Such a status is to be enjoyed according to Article 12 of
the Agreement, by every person designated by a member
state as its principal permanent representative to the
23
rbid., Article 11.
233
Organization in the territory of another member-state.
Other representatives of a member-state such as those
representing the member-state in the Council or any of
its subsidiary bodies shall, according to Article 13 of
the Agreement, enjoy the following privileges and immuni
ties:
(a) Immunity from personal arrest;
(b) Immunity from legal process;
(c) Inviolability for all papers and documents;
(d) Exemption in respect of himself and his
spouse from immigration restrictions, alien registra
tion, and national service obligation . •
(e) The same facilities in respect of currency
or exchange restrictions as are accorded to diplomatic
personnel of comparable rank.
(f) The same immunities and facilitie s in respect
of his personal baggage.
In addition, a representative of a member-state has
the right to import and re-export, free of duty, his
furniture and effects. He also has the right to import,
temporarily, free of duty, his private motor vehicle for
his own personal use, and subsequently to re-export such
a vehicle free of duty.
In order that such privileges and immunities will
not be abused by the representatives of member-states,
the Agreement (Article 15) gave the ri ht to such states
234
to waive such ri ghts any time they wish to do so. The
Article reads as follows:
Privileges and immunities are accorded to the
representatives of Member States and their staffs
not for the personal benefit of the individuals
themselves, but in order to safeguard the independent
exercise of their functions with the North Atlantic
Treaty. Consequently, a M ember State not only has
the right, but is under a duty to waive the immunity
of its representatives and members of their staffs
in any case where, in its opinion, the immunity would
impede the cause of justice and can be waived without
prejudice to the purposes for which the immunity is
accorded.
The fourteen nations of Europe, Canada, and the
United States have pooled a large part of their military
strength and adopted a comm.on defense strategy in the
North Atlantic Treaty Organization. But those nations
di d not stop at this point. There is now a possibility
that an important element of N ATO would be the European
Defense Comm.unity (EDC) in which six continental nations
were seeking to form a re gional structure of defense,
i ncluding a European army with a common budget, procure
ment program, uniforms and training. On M arch 27, 1952,
a trea t y to that effect was signed by the representatives
of six European countries, namely, France, West Germany,
the Netherlands, Italy, Belgium, and Luxembourg. The
Treaty provided for a European Defense Force within the
political framework of a European Defense Community,
235
specifically described in Article 1 as supranational in
character.
The Members will cease to have national armies
except for troops that were necessary in non-European
territories Lfndo-China, for example. Instead, they
will? ••• supply tropps in units approaching divi
sion-size to a combined and integrated defense force
under a Supreme Commander responsible to NATO.
The European Defense Community, therefore, is the
first international organization which is primarily based
on a military alliance to be discussed in this study.
Since such an alliance necessitates the stationing of
forei· gn military forces on territories of some, or all,
member-states, it is important for our present purpose
to investigate the status, as well as privileges and
immunities, of such forces.
The parties to the North Atlantic Treaty Organiza
tion have considered that forces of one Party may be
sent, by arrangement, to service in the territory of
another Party. On June 21, 1951 they signed, in London,
an agreement which set the basic pattern for the status
of such forces, as well as the civilian component, and
dependents.
2
4 Accordingly, · neither the personnel
24office of the Executive Secretary, "Agreement
Regarding the Status of Forces of the Parties to the
North Atlantic Treaty," .. orth Atlantic Treaty Organiza
tion and Related Documents { aria: 1952), PP• 13-20.
236
belonging to the land, sea or air armed services, nor the
civilian personnel accompanying them or their dependents
enjoy any immunity from arrest or other legal process.
There are, however, certain privileges which the military
personnel and their dependents may enjoy:
(a) Subject to compliance with the formalities
established by the receiving State relating to entry
and departure of a force or the members thereof, such
members shall be exempt from regulations and immigra
tion inspection on entering or leaving the territory
of a receiving state.
(b) They shall also be exempted from the regula
tions of the receiving State on the registration and
control of aliens.
( C)
without
license
sending
The receiving State shall accept as valid,
a driving test or fee, the driving permit or
or military driving perm.it issued by the
State.
(d) Members of a force may possess and carry arms,
on condition that they are authorized to do so by
their orders.
In regard to jurisdictional authority of the NATO
forces, the Agreement provided in Article 7:
(a) The military authorities of the sending State
shall have the right to exercise within the receiving
tate all criminal and disciplinary jurisdiction
conf'erred on them by the law of the sending State
over all persons subject to the military law of the
State.
{b) The authorities of the receiving State shall
have jurisdiction over the members of a force, or
civilian component and their dependents, with respect
to offenses committed within the territory of the
receiving State and punishable by the law of that
State.
237
(c) The military authority of the sending State
shall have the right to exercise exclusive jurisdic. tion over persons subject to the military law of that
State with respect to offenses, including offenses
related to its security, punishable by the law of the
sending Stat~, but not by the law of the receiving
State.
(d) In the meantime, the authorities of the
receiving State shall have the right to exercise
exclusive jurisdiction over members of a force or
civilian component and their dependents with respect
to offenses relating to the security of that State,
punishable by its law and not by the law of the
sending State. Such offenses are like treason against
the State, sabotage, espionage, or violation of any ,
law relating to the national defense of that State.
Neither a force member, nor a civilian component,
nor their dependents, shall enjoy any exemption from
taxes or duties relating to purchases and services charge
able under the fiscal regulations of the receiving State.25
IV. THE LEA UE OF ARAB STATES
The League of Arab States, which came into existence
at the conclusion of the Cairo Conference on March 22,
1945, represents a stage in the natural development of
-
the modern movement for Arab Unity, which began with the
birth of Arab nationalism about the middle of the
2
5office of the Executive Secretary, North Atlantic
Treat Or anization and Related Documents (Paris: 1952),
Artie e IX, Section , P• •
238
twentieth century. The movement, at the start more or
less visionary, has now taken definite shape in the form
of the Lea ue. The objectives of the Arab League, as
set out in the Covenant, are as follows:
(1) To protect and safeguard the integrity and
independence of the Member States.
(2) To ensure that within the framework of the
re gime and the conditions prevailing in each state,
close cooperation between the Member States should
exist in economic and financial affairs, and in
matters connected with nationality, passports, visas
and extradition, social matters, advancement of
education and public health.2°
The League of Arab States, which today includes
Egypt, Iraq, Syria, Lebanon, the Hashimite Kingdom of
Jordan, Yemen, Saudi Arabia, Sudan, Morocco, Tunisia, and
Libya, may be considered as another example of regional
arrangements which are "supranational" in character. It
drew its jurisdiction from Article 7 of its Covenant,
which reads as follows:
Decisions of the Council [or the Leagu~7 by
unanimous assent shall be obligatory on all the
States participating in the League.27
The Lea ue's Council has, furthermore, a jurisdic
tional authority to settle differences which may arise
26
The Covenant of the League of Arab States,
Article 2.
27
bid., Article 7•
239
between member-states of the organization. To this effect
Article 5 of the Covenant reads:
Recourse to force to resolve disputes between two
or more League States is inadmissible. If a differ
ence should arise between them, not pertaining to the
inde~endence, sovereigntz, or territorial integrity
of Lany of the7 States Lconcerned7, and the contend
ing parties have recourse to the-Council to settle
it, then its decision is executory and obli gatory.
In this eventuality, the contending States shall
have no part in the proceedings and resolutions of
the Council.
The Council shall mediate in any dispute which
causes apprehension of a state of war between one
of the League States and another, or one not ffielong
ing to the League?, i n order to effect reconciliation
between the two of them.
But, unlike many re gional arrangements, members of
the League of Arab States have surrendered part of their
sovereignty regarding their national policy or decisions
to make war or peace, powers which normally rest within
their national parliaments and national constitutions.
Article 6 of the League Covenant reads in part:
Should aggression b y a State against a M ember
State of the League take place ••• the Council
shall decide upon the appropriate measures to check
this aggression.
The structure of the League is so centralized that
no special agreement or Protocol has be en signed between
the Lea gue's M embers regarding privileges and immunities
of the Council, members of its committees, or those or
its officials specified in its internal administration.
This may be due to the fact that Cairo, Egypt, is to be
the permanent seat of the League. In general, however,
Article 14 of the Covenant provides:
Members of the League Council, members of its
Committees, and those of its officials specified in
the internal administration, shall enjoy diplomatic
privileges and immunity during the performance of
their duties.
The inviolability of building~
8
occupied by bureaux
of the League shall be observed.
The only distinction between the status of the
League's officials is that of the Secretary-General and
the Assistant Secretaries. According to the Covenant,
the former is to hold ambas sadorial status, while the
latter is given the status of M inisters-Plenipotentiary.
2
9
V. THE ORGANIZATION OF AMERICAN STATES
The last, but indeed not the least, example of
regional arrangements dealt with in this study is the
Organization of American States. From the northern border
of the United States to the tip of Cape Horn this re gional
system has been developing since the nineteenth century.
28
Ibid., Article 14.
29
rbid., Article 12.
Although this astern Hemisphere organ zation was formally
established as recently as 1948, it has its roots in a
series of International Conferences which date back to
1890. ndeed, the present organization is, in many ways,
the old Inter-American System. "writ large. nJO The long
effort to promote Pan-American cooperation forms a pattern
of responses to the changing political and economic rela
tionships among the American states themselves and between
the astern Hemisphere and the rest of the world.
arly in 1945, decisive steps toward a new American
system were taken at the Chapultepec Conference (Mexico
City Con£erence on Problems or ar and Peace) . 3
1
The Act
of Chapultepec announced that after the war's end the
American states desired to conclude a permanent treaty of
mutual defense and consolidate the diverse inter-American
treaties for peaceful settlement of disputes. In eptember,
1947, the Inter-American Treaty of Reciprocal Assistance
was signed, at Rio de Janeiro, by all twenty-one nations.
At the Ninth Inter-American Conf'erence held in
3oArthur P. hitaker, "Development of American
Re ionalism: The Or an zation of the American States,"
International Conciliation, No . 469 (March, 1951), p. 124
31
bid., P• lJl.
242
iarch-April, 1948, at Bogota, Colombia, the Inter-American
System was converted into the Organization of American
States. This conference produced the Charter or Organic
Pact of' the OA and the American Treaty of Pac fie Settle
ment (Pact of Bogota). Other agreements were also reached,
including an economic agreement and a Declaration of the
Rights and Duties of Man. The Pact, however, is designed
to consolidate former treaties for the peaceful settle
ment of disputes by providing a system of uniform accept
ance of procedures, such as good offices, mediation,
investigation, conciliation, and juridical or arbitral
decision.
The supreme organ of' the OAS is the nter-American
Conference, which meets every five years. This Council
is the permanent executive. It is composed of one dele
gate from each of the twenty-one member nations. Under
the Council's supervision there is an Economic and ocial
Council, a Council of Jurists, and a Cultural Council.
The specialized a encies wh_ch have been in existence f'or
a lon period of time have also been incorporated into
the ne· w system and continue to function. The Pan-American
Union, therefore, has bee assi ned to the position of
central permanent or an and General Secretariat of the new
243
system. Its Director is Secretary-General of the Organ-
ization of American States, is chosen for a ten-year
term by the Conference and not eligible to succeed him
self.
The meetings of Foreign Ministers of those nations
constitute another instrumentality of the new system and
are closely related to the OAS Council. The Council is
char ed with convening such meetings "to consider prob
lems of an urgent nature. tt3
2
To advise the Council and
the Foreign Ministers in matters of defense, the Charter
has provided an Advisory Defense Committee, composed of
the military chiefs of all the states. Thus far, the
efforts of the Organization of American States to main
tain peace within the American hemisphere have been
r elatively successful.
A number of changes have taken place in recent
years affecting the rights, privileges, exemptions and
immunities of government officials, diplomatic agents,
and officers and employees of the Organization of American
States. The Charter of the OAS, however, has put an end
3Gr'he first meeting of Foreign Ministers under
the OAS system was convened in March, 1951, following the
retreat of United States forces from the Yalu River in
Korea.
244
to all confusion which has been in existence for a long
period of time. Articles lOJ-6 of the Charter provide:
103 - 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 accomplish
ment of its purposes .
104 - The Representatives of the Governments of
the Council of the Organization, the representatives
on the organs of the Council , the personnel of their
delegations, as well as the ecretary-General and the
Assistant Secretary-General of the Organization,
shall enjoy the privileges and immunities necessary
for the independent performance of their duties .
105 - The juridical status of the Inter-American
Specialized Organizations and the privileges and
immunities that should be granted to them and to their
personnel, as well as to the officials of the Pan
American Un on, shall be determined in each case
through a reements between the respective organizations
and the Governments concerned .
106 - Correspondence of the Organization of Ameri
can States, including printed matter and parcels,
bearin the frank thereof, shall be carried free of
char e in the mails of the Member States .
The Council of the Organization, on June 2, 1948 ,
appointed the Committee on Privileges and Imm.unities to
study the most effective manner of putting into force the
provisions of the Articles mentioned above. The Committee
presented its report on the matter on May 2, 1949, and
on 14ay 15, 1949, an Agreement on Privileges and Immunities
of the Organization of American tates was reached and
opened for si natures.
245
The first chapter of the Agreement is concerned
with the Organization of American States itself. In brief,
it provides:
a - Privileges and immunities for the Organiza
tion's organs and the personnel thereof.
b - The Organization and its Organs, their property
and assets, shall enjoy immunity from every form of
legal process, unless such immunity, in any particular
case, is waived.
c - The premises of the Organization and its Organs
shall be inviolable.
d - The archives, and documents, of the Organiza
tion and of its Organs shall be inviolable.
e - The Organization and its Organs, their property,
funds and assets shall be (1) exempted from all direct
taxes; (2) exempt from customs duties and prohibitions
and restrictions on imports and exports in respect of
articles for their official use; (3) exempt from
customs duties in respect of their publications.
J
f - The Organization and its Organs may hold funds,
gold or currency of any kind without control. They
may also transfer such a fund from one country to
another or within any country.
Privile es and immunities of representatives of
the member-states of the Organization and its Organs are
specified in Chapter II of the Agreement.
Such representatives, as well as the personnel of
t he Delegation, shall, while exercising their functions
and durin their journey to and from the place of meeting,
enjoy:
a - Immunity from personal arrest, from seizure
of their personal baggage and from legal process of
any kind.
b - Inviolability for all papers and documents.
c - The right to use codes and receive correspond
ence in sealed bags.
d - Exemption, with their spouses, from immigra
tion restrictions, national service obligations, and
alien registration.
e - Facilities regarding non-restrictions on
currency and exchange.
f - _ The same facilities in respect of their per
sonal baggage as are accorded to diplomatic envoys.
g - Such privileges and immunities are to be
enjoyed, also, by the Secretary-General of the Organ
ization as well as by his Assistant.
The legal capacity of the Pan-American Union,
which is acting as General Secretariat of the Organiza-
. tion, is dealt with in Article 9 of the Agreement. It has
the capacity to contract, to acquire and dispose of movable
and immovable property, and to institute legal proceedings.
The officials and other members of the staff of
the Pan-American Union,according to the Agreement, are
entitled to enjoy certain privileges and immunities.
Chapter V, Article 10 of the Agreement, provides that such
officials and staff shall:
a - Be immune rrom legal process of any kind, while
functionin in his official capacity.
b - Be exempt from taxation on the salaries paid
to them by the Union.
247
c - Be immune from national service obligations.
d - Be immune, with their spouses and relatives
dependent on them, from immigration restrictions
and alien registration.
e - Be accorded privileges in respect of exchange
facilities.
f - Have the right to import, free of duty, their
furniture and effects.
The Secretary-General of the Organizat_on of Ameri
can States has the right to waive the privileges and
immunities of any official or member of the staff in any
case where in his judgment the exercise of such rights
would impede the course of justice. The Council of the
Organization has the right to waive the immunity of the
Secretary-General himselr.33
33Pan American Union, Division of Law and Treaties,
Department of International Law, "Agreement on Privileges
and Immunities of the Organization of American States,"
Documents and Notes On Privileges and Immunities, With
S ecial Reference to the Or anization of American States
Was ngton, D.C.: 3, PP•
C&.PI'ER X
NTERNATIONAL FUNCTIONAR ES
The press, the public, and even some writers on
international organizations, frequently cont'use the
privileges and immunities of international functionaries,
which shall be discuss din this chapter, with those
enjoyed by the organization itself, its officials, repre
sentatives of its members, and its agencies and subsidiary
organs, which were discussed in the preceding chapters
of this study.
The interpretation of the phrase, "international
functionaries," has not been exactly agreed upon by all
authoriti son international law or international organ
ization, even though it is comm.only used in the literature
of those fields. But, for our present purpose, we may
use the definition of Suzzanne Basdevant, as quoted by
Kunz,
1
which describes "international .functionaries" as
persons invested of international interest, and may
be appointed personally by international organiza
tions or by an organ of it. They are .free of both,
the administrative control of the international
organiz tion and the national policy or regulation
of their own countries.
1
Josef L. Kunz, "Privileges and Immuniti sot
249
In this category the most important groups, perhaps,
are the experts on missions for international organization
and representatives of the pres, radio and films.
I. EXPERTS ON MISS ONS
As for the experts on missions for international
organizations, it is provided in Article VI, Section 22
1
of the Convention on Privileges and Immunities of the
United Nations that experts when performing missions for
the United Nations shall be accorded such privileges and
immunities for the independent exercise of their functions
during the period of their missions, including the time
spent on journeys in connection with the mission.
2
They
are accorded in particular immunity from personal arrest
or detention and from seizure of their personal baggage.
In respect of words spoken or written and acts done b
them while performing their duty, Section 22 of the
Convention reads as follows:
In respect of words spoken or written and acts
done by them in the course of the performance of
their mission, Experts shall be accorded immunity from
legal process of every kind. This immunity from legal
process shall continue to be accorded, notwithstanding
nternation l Organizations," American Journal of Interna
tional Law, 41:828-62, October, 1947.
2
Appendix v.
250
that the persons concerned are no longer employed
on missions for the United Nations.
The documents and papers of these persons are
inviolable, and for the purpose of their communications
with the United Nations they are extended the right to use
codes and to receive papers or correspondence by courier
or in sealed bags. The same facilities in respect of
currency or exchange restrictions are accorded to them
as are accorded to representatives of foreign governments
on temporary official missions. The same immunities and
facilities in respect to their personal baggage are
accorded to experts as are accorded diplomatic envoys.
It should be noted, in particular, that experts
on missions for the United Nations are extended immunity
from personal arrest or detention from seizure of their
personal baggage. This is an immunity which is not
extended to officials of the United Nations except for
acts performed in connection with their official functions.
Since experts are often sent by international organizations
into areas of conflict such as Palestine, Korea, or Kash
mir, it is essential that such persons should retain
complete freedom of movement, and that their functions
should not be interfered with by the state in which they
are perforlTling their duties.
Unlike the representative of a member-state,
where the foreign government or the head or their mission
may waiv the immunity of a representative of a member,
it is the Secretary-General of the United Nations who has
the right to waive such an immunity of the expert. The
Secretary-General, indeed, not only has the right to
waive the immunity, but it 1s his duty to do so in any
case where, in his opinion, the immunity would impede the
course of justice. The immunity can be waived without
prejudice to the interest of the United Nations.
In regard to the extension of privileges and
immunities to experts on missions for specialized agencies,
the Sixth Committee of the General Assembly of the United
ations expressed the view that anything corresponding
to Article VI of the Convention on Privileges and Immuni
ties of the United Nations3 should not 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.4 Any indi
vidual specialized agency, however, may show good and
3Appendix V, Article VI.
4un1ted Nations, General ssembly, Report of Sub
Committee to the Sixth Committee, United Nations Document
A/6, 6/148.
252
sufficient causes for provision giving immunity to such
experts in their particular case.
United Nations experts are not entitled to the use
of the United Nations Laissez-Passer. But, according to
Article VII of the United Nations Convention, they are
entitled to the use of the United Nations certificate
certifying that they are traveling on the business of
the United Nations, and as holders of this certificate
they are entitled to the speedy issuance of visas where
required. Sections 25 and 26 of Article VII read as
follows:
. 25 - Applications for visas (where required) from
the holders of United Nations Laissez-Passer, when
eccompanied by a certificate that they are traveling
on the business of the United Nations, shall be dealt
with as speedily as possible. In addition, such
persons shall be granted facilities for speedy travel •
.
26 - Similar facilities to those specified in
Section 25 shall be accorded to experts and other
persons who, though not the holders of United Nations
Laissez-Passer, have a certificate that they are
traveling on the business of the United Nations.
Experts traveling on the business of the special
ized agencies are provided with similar facilities in
connection with the issuance of certificate for speedy
travel.5
5
Appendix V, Article VI .29.
253
Besides privileges and immunities provided in the
two above-mentioned Conventions, experts performing
missions for the United Nations or for the specialized
agencies fall under the terms of Section 11 of the Head~
quarters Agreement between the United Nations and the
United States of America. In accordance with the terms
of this section, the federal, state, or local authorities
of the United States shall not impose any impediment in
transit to or from the headquarters district of such
persons. This is of vital importance since the United
States has not, as yet, acceded to the Convention on
Privileges and Immunities of the United Nations, and
these experts would not be allowed to enter the United
States under the terms of International Organizations
Imm.unities Act.
In practice, experts of the United Nations and of
the specialized agencies have enjoyed such privileges
and immunities. This is true also regarding experts who
are not members of the United Nations. This may be
illustrated by the following examples.
The Expert Working Group on Inland Water TransEort from
Asia and the Far East
The Expert Working Group was organized as a result
of a resolution passed at a meeting oftheAd Hoc Committee
254
or Experts on Inland Transport held at Bangkok from
October 24 to November 4, 1950. The resolution recom
mended, in part, that
the Executive Secretary be requested to discuss with
governments and the United Nations Technical Assist
ance Administration (TAA) the possibility of arrang
ing for a team of technical inland water transport
experts, drawn from several countries of the region,
to study abroad the technological advances in inland
water transport methods and thereafter submit a
detailed report to an inland waterway sub-committee
to be set up gy the Economic Commission for Asia and
the Far East.
In March, 1951, this resolution was adopted at the
seventh session of the Economic Commission for Asia and
the Far East held at Lahore, and letters were sent to
member Governments inviting them to submit panels of
experts . , suitably qualified to participate in the working
group, for selection by the United Nations. These letters
also requested interested governments to state, anong
other things, what type of problems they would consider
especially important for the group to investigate and
what measures they proposed to take to put into effect
the recommendations of the working group.
6
United Nations, Inland Water Transport in Europe
and the United States, Report of the Expert Work!ng Group
From Asia and the Far East on Inland Water Trans ort
ugus - ovember, 9 New York: n ted ations, Depart-
ment of Public Information, 1954), P• 2.
255
As a result, specific endorsements of the project
as well as detailed replies were received from the Govern
ments of Burma, Cambodia, India, Pakistan, Indonesia,
Thailand, and Viet-Nam. The United Nations Technical
Assistance Administration, in cooperation with the United
Nations Economic Commission for Asia and the Far East,
made the final selection of the experts who were invited
to participate in the tour study. The countries finally
represented in the study group were Burma, India, Pakistan,
Thailand, and Viet-Nam.
According to the terms of reference for the group's
work it was established "to undertake a brief inspection
of existing inland water transport conditions and facili
ties in Thailand, Burma, Viet-Nam, asked for assurance
of privileges and immunities for the group of experts,
while performing their mission within the territories of
those countries. The Secretary-General, in his letters,
cited Article VI, Sections 22 and 23 of the Convention on
Privileges and Immunities of the United Nations as a basis
for his request.
7Ibid., P• 3•
8
Ibid.
256
As a ·result, all governments concerned informed the
Secretary-General officially that they were prepared to
accord the gro~p of of experts all the privileges and
~
immunities provided for them in the Convention.
It is of interest to note, in this connection, that
such assurance for the experts• privileges and immunities
came rrom all governments concerned, even though some of
them, like the United States, have not as yet acceded to
the Convention, and others, like Italy and Viet-Nam, had
not at the time been accepted as members of the United
Nations.
Permane~t Central Opium Board
The case of the Permanent Central Opium Board may
be cited here as a second example of experts on missions
for the United Nations. To secure privileges and immuni
ties for the Board, Resolution 123 (VI) of the Economic
and Social Council of the United Nations, adopted on
March 2, 1948, provided in part:
The Economic and Social Council, taking into
account the responsibilities and functions of the
Permanent Central Opium Board under the Interna
tional Conventions on Narcotic Drugs of 1925 and
1931 and its relations with the Council, recommend
that Governments should extend to the members of the
Permanent Central Opium Board privileges and immuni
ties on the lines laid down in the Convention on
Privileges and Imm.unities as approved by the General
Assembly on February 13, 1946; invite Governments to
report as soon as possible what measures they have
taken to carry out this recommendation.9
Responding to this resolution, the Swiss Federal
Political Council officially informed the Secretary
General of the United Nations, in a letter dated June 14,
1948, that pursuant to the provisional arrangement on
the privileges and immunities of the United Nations con
cluded betweeb the Swiss Federal Council and the SecretarY"i'
General of the United Nations, the members of the Perma
nent Central Opium Board will be granted on the territory
of the Swiss Confederation the following privileges and
immunities:
{a) Immunity from personal arrest or detention
and seizure of their personal baggage.
(b) Immunity from any judicial action in regard
to acts performed by them in the course of their
mission, including their words and writings. This
immunity shall continue and be granted to them even
after these persons shall have completed their mission
on behalf of the United Nations.
(c) Inviolability of their papers and documents.
(d) The right to make use of codes and to receive
documents and correspondence by mail or sealed pouches
for their communications with the United Nations.
9
united Nations, Handbook on the Legal Status,
Privileges and Immunities of the United Nations, 1952,
p. 118. .
258
(e) The same facilities as regards monetary or
exchange regulations as those granted to representa
tives of foreign governments on official temporary
mission.
(r) The same immunities and facilities as regards
their personal luggage as those granted to diplomatic
agents.10
In Greece, the Permanent Central Opium Board has
enjoyed almost the same privileges and immunities which it
enjoyed in the territory of the Swiss Coru'ederation. On
August 10, 1948, the Permanent Representative of Greece
to the United Nations in.formed the Secretary-General that
the Government of Greece "is ready to ext end to the members
of the Permanent Central Opium Board privileges and
immunities along the lines laid down in the Convention
on Privileges and Immunities as approved by the General
Assembly.
1111
Denmark and the United Kingdom have also agreed
to accord the Board similar status, privileges and immuni
ties, as experts on missions for the United Nations. The
United Kingdom delegation to the United Nations, in a
letter dated January 10, 1950, informed the Secretary
General that:
The members of the Permanent Central Opium Board
are considered to fall within the category of experts
10
Ibid., PP• 119-20.
11
Ibid., P• 119.
•
259
performing missions for the United Nations under
Article VI of the General Convention on Privileges
and Immunities of the United Nations. As His
Majesty's Government has acceded to the Convention
and has given effect to it by Order in Council
No. SRO 1772 of August 8, 1947, it would appear that
no further action is l~quired on the part of His
Majesty's Government.
A similar letter to Secretary-General was received
from Permanent Representatives of Denmark. In part,
that letter, which was dated October 4, 1950, indicated
that the Royal Government of Denmark considers the members
of this Board as having the status of experts on missions
for the United Nations, so that the Convention, approved
by the General Assembly on February 13, 1946, is applicable
with regard to the aforementioned Board.
1
3
Commission of Inquiry on Coca Leaf
Members of Commissions of Inquiries are also given
the status of experts for the United Nations. In a letter
dated October 14, 1949, the Secretary-General requested
from the Government of Bolivia that it accord privileges
and immunities to members of the Commission of Inquiry
on Coca Leaf, which was to arrive in Bolivia for a tech
nical survey of the coca leaf in that country for the
12
Ibid., P• 121.
260
Economic and Social Council of the United Nations.
1
4
Consequently, the Bolivian Government, through its Delega
tion to the United Nations, favorably responded to this
request. The Chairman of the Bolivian Delegation, in a
letter dated October 19, 1949, informed the Secretary
General that "the Commission of Inquiry on the Coca Leaf
will enjoy all the privileges and immunities contemplated
in the Convention on Privileges and Immunities of the
United Nations, which has not as yet been ratified by
Bolivia." The Bolivian Delegation ended this affirmative
note by saying, "Accordingly, I request you to inform
the members of the Commission of Inquiry on the Coca Leaf
that they may proceed to Bolivia without delay."
Advisory Council for Somaliland
Advisory Councils, advisory commissions, or advi
sory boards may also be considered as experts on missions
for the United Nations. When, in 1950, the Advisory
Council for Somaliland arrived in that country to perform
a mission for the Trusteeship Council, the Italian
authorities in the Somaliland agreed to accord the Council
the following privileges and immunities.
1
4Ibid., P• 122.
(a)
(b)
to them
261
Imm.unity from legal process.
Exemption from taxation on the salaries paid
by the United Nations.
(c) Immunity from national service obligations.
(d) Exemption from immigration restrictions and
alien registration.
{e) The same exchange facilities as accorded to
diplomatic missions to the Italian Government.
(t) Immunity from personal arrest or detention
and from seizure of their personal baggage.
(g) Exemption from all customs duties of the
export or import of their personal effects.
by
(h)
{i)
the
Right to travel freely in Somaliland territory.
Recognition of Lai~sez-Passer issued to them
Secretary-General.I
Technical Assistance Appointees
The last class of experts on missions for the
United Nations here discussed is that of the technical
assistance appointees. Privileges and immunities of those
experts are provided in the Basic Agreements Concerning
Technical Assistance Between the United Nations and Other
Governments. Technical assistants are operating through
out the world for the United Nations; thus, their privi
leges and immunities are of vital importance, as they
262
carry out their functions in both underdeveloped and
civilized countries.
Again, one of the best available examples for pro
viding such an arrangement for the technical assistance
appointees is the agreement, dated October 1, 1951, between
the Bolivian Government and the United Nations. Article
XX of this Agreement reads as follows:
The contracts of employment shall provide for such
privileges and immunities as are necessary for the
adequate exercise of the functions of the administra
tive assistants in Bolivia. In particular~ no tax
shall be imposed on any payments made under Article
XIII of this Agreement.lb
The contracts of employment between the Bolivian
Government and the Administrative Assistants, recruited
under United Nations auspices for positions in the Bolivian
Civil Service, typically provide for the following privi
leges and immunities:
The appointee shall:
(a) Be immune from all legal process in respect of
words spoken or written and all acts performed by
him when concerned with any political matter or in his
official capacity or in the course of his employment
under this contract;
(b) Be accorded the same privileges in respect of
exchange facilities as are accorded to officials
forming part of diplomatic missions to the Government
of the Republic of Bolivia;
16
Ibid., P• 139•
263
(c) Be immune from national service obligations
to the Government of the Republic of Bolivia;
(d) Have the right to import free of duty his
furniture and effects required in connection with
establishing residence in Bolivia;
(e) Be exempt, together with his spouse and
dependents, from immigration restrictions and alien
registration;
(f) Be given, together with his spouse and depend
ents, the same repatriation facilities as are afforded
to diplomatic envoys under international custom;
(g) Be provided with appropriate identificatiQn
cards for himself and his spouse and dependents.lI
II. UNITED NATIONS TRIBUNALS
A different type of international functionary is
represented by the United Nations Tribunals. Members of
the Tribunal tall under Articles 19, 32, and 42 of the
Statute of the International Court of Justice, discussed
-
above, which provide for full diplomatic privileges and
immunities, including tax exemption. Members of United
Nations Tribunals are also considered as experts on
missions for the United Nations, thus entitled to privi
leges and immunities provided by Article VI, Section 26
of the Convention on the Privileges and Immunites of the
United Nations.
17
Ibid., P• 140.
264
When, in 1952, a United Nations Tribunal was to
preside over a serious religious dispute case in Eritrea,
the Secretary-General obtained an assurance regarding
privileges and immunities from the Government of Eritrea,
before the Tribunal's departure. He informed that govern
ment, in an official letter dated September 11, 1952,
that "the same privileges and immunities have already
been accorded to the same persons wh~n they sat in Libya
as members of the United Nations Tribunal there."
The Foreign Minister of Ethiopia, in a letter dated
September 16, 1952, favorably replied to the Secretary
General's request. In part, he said:
I have the honor to inform you that the Imperial
Government of Ethiopia is pleased to extend to the
members of the United Nations Tribunal in Eritrea
diplomatic privileges and immunities based, mutatis
mutandis, on the provisions of Article 19 of the
Statute of the International Court of Justice and on
provisions of Article 6, Sections 25 and 26 of the
Convention on Privileges and Immu~1ities of the
United Nations.15
III. REPRESENTATIVES OF THE PRESS
The representative of the press, as an international
functionary, is of vital importance to any international
265
organization. Without adequate and free communication,
agents of the United Nations, for example, would face
great difficulty in informing international public opinion
of its activities. Yet, there is not at the present a
uniform law or regulation regarding the status, privileges,
and facilities to be provided for the press agents, or
correspondents in the territories of the states-members
of the United Nations. Problems facing press agents
in foreign countries are far more complicated than tho~e
met by other international functionaries.
The administrative problem of access by foreign
correspondents to the countries in which they are required
to work, the problem of their tax status, and the problem
of exchange are only a few of many that arise.
The Problem of Access
The replies of Governments to the request for
information based upon the provisional a genda of the
United Nations Conference on the Freedom of Information,
and the results of inquiry carried out among a number of
foreign correspondent s show that, generally speaking,
there is no provision in laws or regulations of the vari
ous countries concerning the professional travel of foreign
correspondents. Access by forei gn correspondents to the
266
countries in which they are required to work is governed
by the ordinary legal provisions applying to aliens. The
replies of the various Governments, however, show that
numerous countries have concluded bilateral agreements
abolishing passport and visa formalities for travelers,
and some of them unilaterally abolished entrance visas
to their territory for nationals of specific foreign
powers.
According to the official information received by
the Secretary-General up to December 1, 1953, eighty-three
bilateral agreements have been concluded since the end
of W orld War IT for the purpose of reciprocally abolishing
entrance visa requirements.19
Nine countries have unilaterally abolished entrance
visa requirements and five others have done away with
passport and entrance visa requirements. Generally speak
ing , however, a foreign correspondent is a journalist
accredited by an information a gency to a country which is
not his own. He is, therefore, required, apart from the
particular cases referred to above, to apply for a pass
port, an entrance visa, and, possibly, a transit visa or
vi sas.
19
united Nations, Economic and Social Council,
Commission on Human Ri ghts, A Report on Freedom of
267
In some countries the issue of passports is con
sidered as an obligation to be fulfilled by the public
authorities. It is subject only to the applicant's
producing proof of his nationality and sometimes, in a
country like France, a proof of the fact that he has
complied with his tax or military obligations. The public
authorities in France, for example, are not called upon
to judge whether the proposed journey is or is not in the
national interest.
In other countries, like the United States, the
issue of a passport is left to the discretion of the
authorities, which are empowered to determine whether
the proposed journey· is or is not in the national interest.
Thus, the United States law does not make it obligatory
for the administrative authorities to issue a passport to
citizens wishing to go abroad. The United States State
Department, as may be seen from the repeated statements
of its representatives, reserves the right to refuse to
issue a passport when it considers that the proposed
journey is not in the national interest.
20
Information and of the Press, June 11, 1951, P• 9.
2
0The New York Times, August 4, 1950, PP• 1-2.
See also issues for August 22, 1950, PP• 25-27 and Novem
ber 8, 1950, PP• 2 and 6.
268
The law in force and the administrative practice
in the various countries reflect different procedures.
Thus, a foreign correspondent who applies for a passport
is sometimes exercising a right and sometimes requesting
a privilege.
For the granting of an entrance visa as for the
issue of a passport, foreign correspondents, again, are
subject to the law governing aliens. A study of the
laws and regulations in force in the various countries
concerning the admission of aliens to the national terri
tory for the most part reveals two categories of entrance
visas: (1) permanent residence visas, and (2) temporary
residence visas. It follows that the foreign correspond
ent, who is subject to the ordinary entry visa system
under the law in force, cannot in practice be treated
either as a permanent resident or as a temporary resident.
The special position of foreign correspondents is in fact
generally recognized in practice by more flexible applica
tion of the written provisions r9garding entry visas.
It must be mentioned, however, that the authorities
of the State in which the correspondent works often grant
him preferential treatment as compared with other aliens.
This preferential treatment varies according to the
269
country, but in certain exceptional cases it may even
amount to granting the foreign correspondent a semi
diplomatic status. Thus during the Second World War
several States now members of the United Nations and
several of the Axis States extended to foreign correspond
ents who were nationals of enemy countries the same
measures of privileged internment and repatriation that
were applied to diplomats.
In its reply to the request of the United Nations
for information, the Government of France stated that
journalists wishing to take up residence in France were
issued a residence permit under the same conditions as
other foreigners, but that:
This document can be obtained quite easily, almost
automatically, in fact, on production of a card or a
certificate from the Foreign Press Service, formerly
attached to the Ministry of Information and now under
the Presidency of the Council, accrediting the appli
cant as a foreign press correspondent.21
Similarly, the Italian Government stated that the
granting of entry visas and residence permits to foreign
correspondents is facilitated by the intervention of the
competent offices with the police authorities. Even
21
un1ted Nations, Economic and Social Council,
Commission on Human Rights, A Report on Freedom of Int'or
mation and of the Press, June ll, 1951, P• 9.
270
though this preferential treatment on a de facto basis
is enjoyed by correspondents in many countries, the fact
is that de jure treatment in many countries causes great
difficulties for them. Dependent as he is upon the
protection of authorities of his country of origin and
upon the courtesy of his country of residence, the corre
spondent is subject to administrative demands which vary
not only with the country where he works but also with
his nationality. As an example of this difficulty we
may cite the provisions in force in the United States ot
America concerning entrance visas for foreign correspond
ents.
According to the reply given by the United States
Government to the United Nations, "the transmission of
news from the United States" is treated "as a trade"
by the laws of the United States.22 A foreign correspond
ent who is a national of a country that has concluded a
treaty of commerce and navigation with the United States
is given the visa of indefinite duration granted to
persons engaged in trade. On the other hand, a foreign
2
2united Nations, Freedom of Ini'ormation (New York:
United Nations Department of Public information, 1950),
P• 118.
271
correspondent who is a national of a country with which
the United States has no treaty of commerce can only
receive a tourist's visa of limited duration which has
to be renewed periodically. Thu, an Italian correspond
ent accredited to Washington has a United States visa
valid indefinitely, while an Indian or Iraq correspondent
accredited to Washington has a visa valid for no more than
one year.
The Problem of the Tax Status
Unreasonable or discriminatory taxes and double
taxation constitute one of the obstacles to the profes
sional activities of foreign correspondents which has not
yet been completely removed by the international agree
ments at present in force. In a number of countries the
tax status of foreign correspondents is governed, for
the purposes of both the country of origin and the country
of residence, by the existence or absence of commercial
treaties and agreements for the avoidance of double taxa
tion on income as between the two countries. To illustrate
this situation, let us take the case of three foreign
correspondents accredited to Washington, of Italian,
French, and Australian nationality, respectively.
The Italian correspondent, who is covered by a
272
treaty of commerce concluded between his country and the
United States of America, is taxable in respect of the
income he derived from his professional activities only
by the United States Treasury, and is entitled, in the
assessment of his taxable income, to the credits allowed
to nationals and permanent residents.
The French correspondent, who is covered by a
treaty for the avoidance of double taxation on income,
concluded between his country and the United States of
America, is liable to taxation only by the United States
Treasury, but is not legally entitled to the credits
granted to nationals and permanent residents with respect
to the assessment of taxable income.23 In practice,
however, as a courtesy measure department from the statu
tory requirements, the State Department asks the United
States Treasury to have the credits which are granted to
nationals and permanent residents extended to ~oreign
correspondents of French nationality.
The Australian correspondent accredited to Washing
ton is de ju.re liable to income tax both in his own
2
¾ationals and permanent residents of the United
States are allowed credits for dependents (Internal
Revenue Code, Section 214). According to this Code, these
credits total $600 for a wife or other dependents (Section
25 (b)).
273
country and in the United States. Moreover, in assessing
income liable to United States tax, none of the deduc
tions granted to nationals and permanent residents are
allowable. Here, again, however, actual practice departs
from the texts, and the Australian tax authorities waive
the income tax payable by their nationals accredited as
correspondents to the United States, while the United
States authorities extend to Australian correspondents
the credits granted to residents. It should, however,
be noted that in its reply to the request for information,
the Australian Government points out that personnel of
Australian news a gencies stationed abroad have complained
of double taxation.
2
4
Hence, the transfer of the Australian correspond
ent--or his Italian or French colleague--from the United
States to another country, could very likely affect his
tax status, depending upon the existence or absence of
international agreements, and, in particular, upon the
national practice of the country of residence. Not all
States, by any means, are parties to international
agreements relating to the tax status of aliens, and, in
particular , to treaties for avoidance of double taxation.
2
4un1ted Nations, Freedom of nformation, P• 101.
. ,
274
Exchange Problem of Foreign Correspondents
Inquiry in a hard currency country, like the United
States, shows the number of correspondents who are
nationals of soft currency countries to be quite small.
2
5
In the last ten years a large number of newspapers pub
lished in soft currency countries, like India and Greece,
have, through lack of foreign exchange, been obliged to
recall their correspondents accredited immediately after
the war to a hard currency country.26
It is not uncommon for several newspapers of a
soft currency country to utilize the professional services
of a single correspondent accredited to a hard currency
country, since by pooling their resources they are able
to pay his salary. In some cases a newspaper of a soft
currency country is unable through lack of currency to
obtain the exclusive services of a correspondent accredited
to a hard currency country, and accordingly authorizes
him to offer his professional services, outside his main
assignment, to the news organs of the country of resi
dence.
25
United Nations, Economic and Social Council,
Commission on Human Rights, op. cit., P• 19.
26
Ibid •
215
Many of the foreign correspondents who were con
sulted in the course of the United Nations' inquiry on
this matter said that they considered that the right to
undertake professional assignments on behalf of news
organs of a hard currency country so as to make good the
lack of foreign currency would constitute one method of
removing the inequalities which are caused by the exchange
control exercised by the soft currency countries.
2
7
As regards news originating in hard currency
countries, the great majority of newspapers in soft cur
rency countries utilize only the services of news agencies,
for which they can pay in their national currency.
Because of the lack of foreign currency, the news agencies
of the soft currency countries themselves maintain as
small a staff as possible in the hard currency countries.
A good example of this is the composition of the
Association of Correspondents accredited to the United
Nations, which has its headquarters in a hard currency
country. Of the eighty-one states-members of the United
Nations, only twenty-two have correspondents who are
members of the Association. Six of them are represented
by a single correspondent who is in some cases accredited
276
by several of his country's newspapers.
· It can, however, be seen from a study of the press
resources of the countries concerned that neither the
poverty nor the small circulation of the newspapers is to
blame for this. The exchange restrictions existing in
the "soft currency" countries tend to hamper the access
of those countries to the United Nations news.
Problem of Administrative and Technical Facilities
A large number of governments give foreign corre
spondents the benefit of practical measures designed to
assist them in their professional work. This is clear
from the replies furnished by governments to the United
Nations' request for information.
The measures adopted by these governments are, no
doubt, designed primarily to facilitate the access of
foreign correspondents to sources of information. The
authorities of the correspondent's country of residence
insure him access to press conferences and official,
cultural and artistic functions, and, in many cases, make
easier for him the obtaining of information on political,
economic, and social questions, by arranging interviews
or contacts with the appropriate persons.
In addition to these administrative and technical
277
facilities, economic benefits are also conferred in many
cases. In a number of countries foreign correspondents
are entitled to claim certain customs immunities.
Preferential rates for press cables are generally allowed
under international agreements. In certain countries a
press card is equivalent to an admission ticket to a place
of entertainment or sports ground. In the great majority
of countries the measures which are designed to facilitate
the professional activities of journalists do not as a
rule discriminate between foreign and national correspond
ents.
This explains that the problem is not the lack or
the absence of administrative and technical facilities to
assist foreign correspondents in their professional work.
The problem is the result of these measures, which vary
with the political and economic structure and local regula
tions of the various countries.
In raq, for example, the foreign correspondent's
"Press Pass," while differing in color from that of the
national correspondent, confers the same privileges on its
holder. A notable example of these privileges is a 75 per
cent reduction on the Iraqi railways.
2
8
2
8united Nations, Freedom of Ini'ormation. Reply
of the raqi Government.
278
In France foreign correspondents are granted by
the Foreign Press Service a card or certificate conferring
a number of privileges upon the holder. The police
authorities provide foreign correspondents, upon produc
tion of their cards, with a "priority pass," designed to
facilitate their travel on duty inside France. Reduced
rates for cables, and reduced customs duties are also
accorded to foreign correspondents in France.
2
9
In Greece, foreign journalists are granted complete
exemption from taxation with regard to automobiles or other
means of travel.JO In Italy, foreign correspondents are
granted reduced telegraph and telephone rates, under the
same conditions as Italian journalists.
They are granted reduced rates ••• 70 per cent
for themselves and 50 per cent for their families
••• on Italian railways by means of bookl~ts con
taining a fixed number of travel vouchers.3
1
In Norway and Switzerland, news personnel are
entitled to reduced fares of travel, reduction in hotel
rates and free admittance to theatrical and other per
formances .32
29
Ibid., Reply of the French Government.
JOibid.,
Reply of the Greek Government.
3lrbid., Reply of the Italian Government.
3
2
Ibid., Replies of the Norwegian and Swiss Govern-
ments.
279
In Czechoslovakia, the Governm.ent has set up at
Prague for the use of foreign newsmen, an Information
Bureau containing studies equipped with typewriters and a
postal and telegraph office.33
In Turkey, foreign correspondents are considered,
by the Turkish authorities, as "natural guests" at all
"functions of a non-private nature."
The above examples illustrate, indeed, the desire
of governments to facilitate the work of foreign corre
spondents in various ways. In the meantime, it illustrates
the lack of a uniform regulation based on provisions of
one or more international agreements.
These problems have already been examined by
several organs of the United Nations, and in particular
by the United Nations Conference on Freedom of Information,
held at Geneva from March 23 to April 21, 1948.
In a resolution, dated January 22, 1949, the Eco
nomic and Social Council of the United Nations transmitted
facts relating to the problem of foreign correspondents
to the Fiscal Commission for its information. The Fiscal
Commission referred the problem to the Sub-Commission on
33rbid., Reply of the Czechoslovak Government.
280
Freedom of Information and of the Press, for study and
making of recommendations to the Economic and Social
Council. After a thorough study of the problem, the Sub
Commission introduced a number of recommendations for
certain measures to be carried out by states-members of
the United Nations.34
1. Recommendations concerning the granting of
passports. The Sub-Commission might request the Economic
and Social Council to recommend that states-members of
the United Nations should facilitate the travel, for
professional purposes, of any correspondent accredited
in a foreign country by an organ of information by:
(a) reducing the time taken to issue passport;
(b) reducing fees to the actual cost of the
passport;
{c) making passports valid for two years or
more and renewable for the same period,
and
(d) making passports valid for all foreign
countries or for as large groups of coun
tries as possible.
3
4r.rnited Nations, Economic and Social Council,
Commission on Human Rights, A Report on Freedom of Informa
tion and of the Press, June 11, 1951, PP• 24-JO.
281
2. Recommendations regardi;ng entrance visas.
Among other things the uh-Commission requested the Eco
nomic and Social Council to recommend that states-members
of the United Nations should institute a special visa
for forei gn correspondents, to be known as a "correspond
ent's visa." This visa would be issued promptly and
without charge for a period of not less than twelve months
and would be renewable for an equal period. n regard
to grantin transit visas, the Sub-Commission has recom
mended states-members to abolish transit visas for foreign
correspondents by means of inter-governmental agreements.
3. Recommendations concerning the tax status.
Only partial solutions have been offered at the interna
tional level for the problem of avoiding unreasonable or
discriminatory taxation, or double taxation, affecting
forei gn correspondents. As a consequence, the Sub
Commission recommended that:
(a) The Secretary-General of the United
Nations is to make a survey of unreason
able or discriminatory taxes or double
taxation affecting foreign correspondents
and forei n information agencies and con
stituting an obstacle to the international
282
transmission of news.
(b) In concluding agreements for the avoidance
of double taxation, member-states should
be guided by the principles laid down in
a previous resolution of the United
Nations Conference on Freedom of nforma
tion, and include in such agreements a
special clause exempting foreign corre
spondents and foreign information agencies
from double taxation.
4. Recommendations concerning the obtaining of
foreign currency. The shortage of hard currencies which
affects certain countries and their nationals exercising
their professions abroad is an economic phenomenon outside
the Sub-Commission's purview. Nevertheless, and because
of the fact that the shortage of hard currency is an
obstacle to freedom of information, the Sub-Commission
suggested that:
(a) The Governments of soft currency countries
are to allocate currency to foreign cor
respondents with priority over other
classes of their nationals.
(b) The Economic and Social Council should
instruct the Secretary-General, in con-
283
sultation with the government of states
members of the United Nations, the United
Nations Educational, Scientific and Cul
tural Organization, the International
Monetary Fund and the professional press
organizations, both national and interna
tional, to carry out a survey of the
difficulties encountered by foreign
correspondents as a result of exchange
restrictions and of possible remedies
for this situation.
5. Recommendations related to administrative and
technical facilities. It was noted above that the admin
istrative and technical facilities afforded to foreign
correspondents in their various countries of residence
vary with the special conditions of the individual coun
try. Consequently, it is difficult to have a complete
standardization of these facilities. The Sub-Commission,
therefore, has, in general, recommended that:
(a) The generalization of administrative prac
tices under which foreign correspondents
in many countries receive facilities,
privileges and immunities; and
284
(b) The Economic and Social Council is to
recommend states-members or the United
Nations to adopt administrative and tech
nical measures designed to facilitate the
access of foreign correspondents to news
and facilitate their movements within
the country.
Thus, in spite of the uncertainty of the exact
meaning of the term "international functionaries" Suzzanne
Basdevant defined it in a way that made it possible to
include experts on United Nations missions, United Nations
tribunals and representatives of the press who are asso
ciated with international organizations. Privileges and
immunities for the first two categories are provided by
the Convention on Privileges and Immunities of the United
Nations and by the Convention on Privileges and Immunities
of the Specialized Agencies. Regarding the representa
tives of the press, however, there is not, at the present,
a uniform law or regulation to determine their status or
their privileges and immunities.
CHAPl'ER XI
CONCLUSIONS
As a basic principle of general international
law, the rule regarding territorial supremacy allows a
state to exercise jurisdiction over all persons and
things within its territory. The special legal status
of diplomatic representatives, however, is one of the
exceptions to the principle of territorial supremacy.
Under international law, diplomatic envoys are granted
certain privileges and immunities from the jurisdiction
of the state to which they are accredited. These diplo
matic privileges and immunities usually are regulated by
the operation of the principle of reciprocity. The law
of diplomatic privileges and immunities as applied to
diplomatic envoys is as old as international law itself,
and its specific rules are relatively well-defined.
Recently, however, a new limitation of the princi
ple of territorial supremacy has started to develop as a
consequence of the growth of international organizations
and their staffs of international officials. These
international officials have the duty of serving the
286
international interest. If they are to perform their
duty erfectively, they, like the diplomats, must be
granted certain privileges and immunities with respect
to the jurisdiction of the states within whose territorial
limits they are called upon to carry out their interna
tional functions.
Some types of international officials were in
existence as early as the beginning of the nineteenth
century, when certain arterial rivers of Europe were
placed under a form of international organization. But
both international organizations and international offi
cials are essentially a new phenomenon. Thus, after
the establishment of the League of Nations, the problem
of providing the inter national organization and its offi
cials privileges and immunities to protect their functions
emerged and became sufficiently acute to attract serious
attention.
In the first four chapters of this study evidence
is provided concerning the character and practical func
tioning of the system of privileges and immunities of
an organization that embraced, until very recently, the
largest and most important body of international officials,
namely, the Lea gue of Nations organization and its offi
cials. It may be useful in this conclusion to consider
287
what are the main lessons to be drawn from the experience
of the League.
The grant of diplomatic pr~vileges and immunities
to League officials made it possible to apply to them
from the outset a body of existing law and practice
covering most of the essential requirements of an inter
national service. Except in a few isolated cases, the
Covenant obligations were respected by all states-members
of the League, as well as the non-members. The regime _
worked, on the whole, with little difficulty or friction,
both in the countries in which the League organizations
were stationed and elsewhere. Had the membership of the
League been universal and the obligations binding on all
states, certain of the difficulties in re ard to its
privileges and immunities that arose (for example, the
ones concerning travel), would naturally have been
avoided.
It may be concluded, however, that the law and
practice relating to the privileges and immunities of
Lea gue officials were not perfect or wholly satisfactory.
In the first place, there was considerable uncertainty
concerning the position of persons working for the League
but not members of the permanent staff (member of the
expert committees, etc.). To avoid this difficulty,
288
the position of such persons needed to be clarified and
their treatment rendered more uniform.
Secondly, travel facilities for officials remained
dependent, partly at least, on the type of passport
issued to the officials by their respective governments.
The type of visas that could be obtained, and under what
conditions they could be obtained, has, again, been to
some extent a question of the practice of individual
states and the arrangements they have made with one
another.
The third, and perhaps most important, difficulty
is the one arising from the fact that the special situa
tion of League officials required, in certain respects,
a regime different from that applying to ordinary diplo
mats. As a result of the intent to assimilate these two
categories, uncertainties persisted in some cases concern
ing the exemption of League officials from taxation by
their national authorities, concerning military service
obligations and concerning jurisdictional process. In
accordance with the diplomatic· practice in the countries
where the main body of the staff were stationed, namely,
Switzerland and the Netherlands, some discrimination
was practiced against the citizens of the host countries
289
concerned who were members of the staff as contrasted with
the other members of the staff.
After the Second World War the problem assumed a
new character. The United Nations Ch~rter did not state
that the Organization should have international person
ality, thus being entitled to certain privileges am
immunities. But--perhaps, to assure certain parliaments
who were worried by the idea of a Super-State--provision
was made for legal personality under municipal law.
The provision was made in Article 104 of the Charter,
which read: "The Organization shall enjoy in the terri
tory of each of its members such legal capacity as may
be necessary for the exercise of its functions, and the
fulfilment of its purposes."
Today, even while accepting the classical view
according to which the main attributes of international
personality are the capacity to conclude treaties, the
right of maintaining legations, and the right to wage
war, it has been clear in this study that events have
moved quickly since the signing of the Charter. Thus,
the United Nations, as we have seen in the second part
of this study (Chapters V through X) has entered into
numerous treaties and agreements; it sends representatives
290
to tates (officials, a gents, delegates, and high-commis
sioners); it receives permanent delegates who frequently
have the rank of ambassador, and finally, as we noticed
in Korea, it wages war. This does not, however, mean
that a public international organization like the Un ted
Nations is a state or a super-state, or that its inter
national personality coincides with that of a state in
every respect. But it does necessitate, indeed, that
such organizations must be given an adequate status to
enable them to carry out their functions without any
interference. From the experience of both the League 0£
ations and the United Nations, it may be safely con
cluded that the independence, and therefore the efficiency
of the international organization work, cannot be secured
except by the grant of sufficient autonomy and a definite
legal status which may be accompanied by certain guaran
tees of privileges and immunities.
This conclusion led to the adoption, in the General
Assembly, of the Convention on Privileges and Immunities
of the United Nations. The Convention, which is based
on Articles 104 and 105 of the Charter, contains various
articles which are considered as standard provisions
applicable to a reat number of international organiza-
291
tions. By September, 1956, the Convention had been
ratified by fifty-one states.
Specialized agencies, in order to carry out their
functions, frequently enter into private law transactions.
These transactions assume various forms, such as public
international contracts for the purchase of equipment
or contracts of services. In their legal relations, too,
they deal with states, with other international organ
izations and with private individuals or companies.
Before the establishment of the United Nations, the
question of the specialized a .~ency's privileges and immuni
ties was dealt with on the basis of analogies with the
customary rules of diplomatic immunity. Today that
position has been clarified. The status of specialized
agencies has been defined b a multi-lateral Convention
approved by the General Assembly in 1947, the Convention
on the Privileges and Immunities of Specialized gencies.
A more advanced stage of development is to be
found in re ional arrangements, like the Organization
of American States, the League of Arab States and the
European Coal and teal Community. Such arrangements
have achieved a high degr e of integration. Here, as
has been seen in Chapter I, there is something new.
292
It is the absence of any immunity from jurisdiction
which would not serve any useful purpose to the cause
• of the arrangements themselves. There is indeed a
judicial organ, but it does not have full jurisdiction
in one of the main fields in which immunity normally
operates, namely, private litigation. The independence
of such a regional arrangement is adequately insured
by other means. The member-states possess common ideas
and similar legal institutions. Immunity from jurisdic
tion may, therefore, be treated in a less rigid manner.
A special category is that of international func
tionaries, such as international experts and technical
consultants. Under Article VII, paragraph 4, of the
Covenant of the League, they were mostly excluded from
diplomatic privileges and immunities. But the Convention
on Privileges and Immunities of the United Nations,
actions 22 and 23, now grant to "experts on missions for
the United Nations, such privileges and immunities" as
are "necessary for the independent exercise of their
.functions during the period of their missions."
The problem of privileges and immunities of repre
sentatives of the press, or other information agencies,
who have been accredited by, or to, the United Nations,
i s still unsolved. The status and professional work of
293
such press agents raises practical problems ~hich involve
the question of alien status and therefore can be solved
only by international action, taken jointly by the United
Nations, the Specialized Agencies, Governments and profes
sional organizations. The recommendations considered in
Chapter X of this study are not designed to transform
foreign correspondents into a privileged category of news
personnel. They are intended merely to enable duly recog
nized foreign correspondents to work in conditions of
administrative security and economic independence necessary
for the proper performance of their duties.
In analyfing the experience of the two main public
international organizations, the League and the United
Nations, students of international organizations may draw
several important conclusions regarding the exercise of
their privileges and immunities.
It may now be concluded that no international organ
ization of a scope comparable to that of the league or
of the United Nations could work effectively unless its
agents, in the exercise of their functions, were entirely
independent of, and protected from pressure by, any
individual state. That independence is the counterpart
of the impartiality and the loyalty to the international
organization expected of them. To insure it
294
against interference by the authorities of the countries
where they work has been the main purpose of the immuni
ties from local jurisdiction granted to officials of
international organizations . But it would seem desirable
expressly to provide international officials some protec
tion against other states, more espec ally their own.
Naturally their position in this respect ought to difrer
from that of ordinary diplomats, since they must act
as a gents of the community of states rather than of
particular governments. The immunities which they require
in their own countries should be re garded not as a favor
extended to them as individuals but rather as a condition
of the working of the international organization.
The second conclusion which may be drawn .from the
experienc e of the League and the United ations is that
regarding exemption from taxation of salaries of the
international officials. It would be unreasonable for
any one state to derive a financial advanta ge at the
expense of the community of states because of the fact
that agents of that community are stationed within its
borders. t would also seem undesirable that states
should cause discrimination between international offi
cials by taxing the salaries paid to their own citizens.
295
This is undesirable, indeed, not only on grounds of
equality, but also because the natural consequence would
be to discoura e ood persons from entering, or remaining
in, the international service, if required to work in
their own countries. This consideration ~ould be of
particular importance in countries where salaries are
relatively high and the financial inducement to interna
tional service, even assuming tax exemption on interna
tional salaries, consequently small. It is clear that
in the case of any international organization which may
have urgent and important tasks to perform in different
countries, the expeditious and unhindered travel of its
officials is essential. This would imply not only that
governments should extend to international officials
the same facilities they accord to their own representa
tives and representatives of foreign governments, but
also that the facilities should be afforded not on the
basis of the type or nationality of the passport held,
but on the basis of the official's international function.
On the whole, it may be said that the status,
privileges and immunities of international organizations
and their personnel ought to be, in general, based upon
the requirements of their special functions, which in
some respects differ from those of diplomatic agents.
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_____ • The League of Nations and the New International
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325 PP•
Hill, Martin. Immunities and Privileges of International
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Kelsen, Hans .
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85 PP•
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Malloy, William M . Conventions, International Acts,
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461 PP•
Mander, Linden A. Foundat · ons of M odern \vorld Societ •
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928 PP•
Miller, David Hunter . The Drafting of the Covenant.
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• Treaties and Other International Acts of the
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Morley, Felix. The Charter of the United Nations--An
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Potter, Pitman B. An Introduction to the Stud! of Inter
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Centu.ry-Crofts, 1948. 479 PP•
Sayre, Francis Bowes. Experiments in International Admin
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20l PP•
Schuman, Fredrick L. International Politics. New York:
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Scott, James Brown. An International Court of Justice.
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• Law the State and the International Communit.
--~N-ew York: Columbia University Press, 1939. 33 PP•
Sweetser, Arthur. The First Ten Years of the League of
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____ • The Practical Working of the League of Nations:
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• The United States, the United Nations and the
---L-eague of Nations: The International Civil Service
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White, Lyman Cromwell. International Non-Governmental
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B. PERIODICAL ARTICLES
"Agreement on Privileges and Immunities of the Organiza
tion of the American States," Annals of the Organiza
tion of American States, l:J:272-74, 1949.
Allen, Ward P. "Regional Arrangements and the United
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June 2, 1946.
Basch, Antonin. "International Bank for Reconstruction
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Conciliation, 455:791- 827, November , 1949.
Belshaw, Horace. "The Food and Agriculture Organization
and the United ations," International Organization,
1:2:291-306, June, 1947.
Beyen, J. w . "The International Bank for Reconstruction
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42, October, 1948.
Black, Eugene R. "The World Bank at Work," Foreign
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303
Brandon, Michael. "The United Nations Laissez-Passer,"
British Yearbook of International Law, 27:448-55',
1950.
"Building an Interns tional Secretariat,
11
United ~la tions
Bulletin, 5:881-83, November 1, 1948.
Burge, • R. "International Personnel Administration:
ome Aspects of Administration in the International
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Cates, John M. "Meeting of International Meteorological
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43-6, 1953.
"Comprehensive Report on Personnel Policy," United Nations
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"Convention on Privileges and Imm.unities of' the United
Nations," American Journal of International Law,
Supplement 1, 43:1-7, January, 1949.
"Developing an International Civil Service," Columbia
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1948.
Drummond, Sir Eric, "The Secretariat of the Lea~ue of
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1931.
Eagleton, Clyde. "Covenant of the League of Nations and
Charter of the United Nations: Points of Difference/'
The Derrtment of State Bulleti~, 13:263-69, August
19,195.
Finch, George A. "The Institute of International Law.,"
American ociety of International Law, 9:164-65,
September, 1915.
Fisher, Allan G. "International Institutions in a World
of Sovereign States," Political Science Quarterly,
59:1-14, March, 1944.
304
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Hadley, Paul E. ttorganization of American States: A
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Hadsed, Fred L. "Technical Specialized Agencies of the
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Harley, J. Eugene . "The International Law of the Future,"
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Head , A. H . '' uropean Defense,
11
International Affairs,
27:1-9, January, 1951.
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Hornaday , Mary.
11
2,500 Jobs in the United Nations Organ
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1
he Central American Court of Jus
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305
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• "The Int er-American System and the United
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306
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37:872-~7, October, 1943.
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1:579-623, July and October, 1907.
Sharp, Walter. "The New World Health Organization,
11
American Journal of International Law, 41:509-30,
July, 1947•
Thompson, c. M. "The Educational, Scientific, and Cul
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Policy Reports, 26:59~67, February 15, 1946.
11
Unitec Nations and the Agencies: I. Staffing Problems,"
Planning, 15:303-322, May 23, 1949.
"United States Ratifies orld Meteorological Convention,"
The Department of State Bulletin, 20:622, May 15,
1949.
Van Vollenhoven, c. "Diplomatic Prerogatives of' Non
diplomats," American Journal of' International Law,
19:471-74, July, 1925.
Whitaker, Arthur P. "Development of American Regionalism:
The Organization of the American States,•~ Interna
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Wilson, Howard E. "The Development of UNESCO," Interna
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Wright, Quincy, "Foreword: A Symposium in International
Administrative A encies," Iowa Law Review, J0:475-
77, May, 1945•
• "Fundamental Problems of International Organ
----i-zation," International Conciliation, 369-468-92,
April, 1941•
307
C. PARTS OF SERIES
Annual Digest of Public International Law Cases, Being a
Selection from the Decisions of International and
National Courts and Tribunals. London: Longmans
Green and Company, 1929. 1092 PP•
Annual Digest of Public International Law Cases, Being a
· Selection from the Decisions of International and
National Courts and Tribunals. London: Longmans
Green and Company, 1933-34• 911 PP•
Documents of International Or anizations-- Selected
Bi liograp s• Vol. I. Boston: or d eace Founda
tion, ovem er, 1947-August, 1948. 188 PP•
Docwnents of International Organizations--A Selected
Bibliography. Vol. I. Boston: orld Peace Founda
tion, December , 1948-September, 1949. 128 PP•
Dulles, Allen , and Beatrice Pitney Lamb. The United
Nations. New York: Foreign Policy Association,
1943. Headline eries o. 59. 96 PP•
Evans, Luther • "Problems of Administration in Inter
national Affairs--A Memorandwn," in Foundations
of orld Or anization: A Political and Cultural
Appraisal, Lyman Bryson and others eds ••
New York: Harper and Brothers , 1952. Pp. 331-37•
Huth, Arno G. " nternational Organizations and Confer
ences--Experiences and Lessons,n in Foundations of
World Or anization: A Political and Cultural
Appraisal, yman Bryson and others eds ••
New York: Harper and Brothers , 1952. Pp. 261-79.
International Court of Justice, Yearbook, 1948-49•
Leyden: A •• Sythoff's Publishing Company, 1950.
312 PP•
International Court of Justice, Yearbook, 1952-2J•
Leyden: A •• Sythoff
1
s Publishin Company, n.d.
262 PP•
308
Lalive, Jean-Flavien. "The Jurisdictional Immunity of
States and International Organizations," The Hague
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Lasswell, Harold D. "World Loyalt-y," in The World
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Reiff, Henry. Transition from League of Nations to United
Nations. Washington, D.C.: United States Government
Printin~ Office, 1946. United Nations Information
Series 5. 18 PP•
Sayre, Francis Bowes. "International Administration,"
in League of Nations, tephan Pierce Duggan (ed.).
Bost on: Atlantic M onthly Press, 1919. Pp. 128-60.
United States, Depar tment of State. The United Nations
at W ork. Washington, D.C.: United States Govern
ment Printing Office, 1949. I nternational Organiza
tion and Conference Series 3. 5 PP•
W hitaker, Arthur B.
York: Columbia
New
PP•
Yearbook of the United Nations, 1946-1947. Lake Success,
New York: United Nations Department of Public
I nformation, 1948. 1046 PP•
Yearbook of the United Nations, 1947-1948. Lake Success,
New York: United Nations Department of Public
Information, 1949. 1093 PP•
Yearbook of the United Nations 9. New York:
--~~-~-~~-~~~~-....... ~~~~~
Columbia University Press, • 171 PP•
Yearbook of the United Nations • New York: Columbia
University Press, 19
309
D. OFFICIAL PUBL CATIONS AND DOCUMENTS
Central American Court of Justice. "Treaty and Conven
tions of the Central merican Peace Conference;
Convention for the Establishment of a Central Ameri
can Court of Justice~• American Journal of Interna
tional Law, 2:219-65, 1908.
International Ban for Reconstruction and Development.
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International Bank for Reconstruction and Develop
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nternational Bank for Reconstruction and Development .
Sixth Annual Report , 1950-1951. ashington, n.c.:
International Bank for Reconstruction and Develop
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nternational Committee of the Red Cross. Geneva Conven tion for the Amelioration of the Concition or the
Wounded and Sick in Armed Forces in the Field.
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League of Arab States . The Covenant of the Lea ue or
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12 PP•
League of Nations, Committee or Enquiry on the Organiza
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the International Labour Office and the Registry
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Offi~ial Journal, Eeci~l SuEplement No . 88, Annex 8,
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League o:f ations., Committee o:f xperts. "Organization of
the ecretariat and of nternational Labour Office .,"
( oblemaire Report), Official Journal , 1921. Pp . 174-
221 .
League of ations., Economic and Financial Organization of
the League of ations. Geneva: League of Nations
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310
League of Nations. Handbook of International Organiza
tions. Geneva: Association, Bureaux, etc., 1938.
160 PP•
League of Nations, Health Committee. "Minutes of the
Fourth Session, August 14-21, 1922." League of
Nations Document c.555.M .337.
League of Nations, International Committee on InteThctual
Co-operation, "Report of the Governing Body of the
International Institute of Intellectual Co-operatimr
League of Nations Publication, XII , A.5., 37 PP•
League of ations, n~linutes of the Third Ordinary Ses sion of the Assembly, Meetings of the Fourth Com
mittee. A Statement by the Secretary- General ,
11
Official Journal, 1922. Pp. 58-67.
League of ations. "Minutes of the inth ession of
the Council of the League of Nations," Official
Journal, 1922. Pp. 113-39•
League of ations.
Council of the
October 20-28,
Pp. 279-JOl.
"Minutes of .the Tenth Session of' the
League of ations, Brussels,
1920," Official Journal, 1921.
League of Nations . Penal and Penitentiary Q.uestions,"Re
port Submitted by the Fifth Committee of the Assem
bly; September 30th, 1937•" League of Nations
Document A/62, w . A37•
League of Nations, "Records of the Third Assembly,
Meeting of the Committees; A Statement by the
Secretary-General," Official Journal, 1922. Pp. 58-
71.
League of ations. "Records of the Fourteenth Ordinary
Session of the Assembly, Meetings of the Fourth
Committee," Official Journal, 1931. Pp. 121-38.
Org nization of American States. Catalogue of Pan
American Union Publications . Washington, D .C.:
Pan American Union, 1951. 28 PP•
311
Organization of American tates, Pan American Union.
Ag~eement on Privileges and mm.unities of the Organ
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at the Pan American Union on Ma 15 19 9. ashing-
ton, n.c.: Pan American Union, 19 9. PP•
Organization of American States, Secretary-General.
Annual Report of the Secretar1-General of the Organ
ization of American tates. Washington, D.C.: Pan
American Union, 1950. 199 PP•
Pan American Union, Department of nternational Law,
Division of Law and Treaties. Agreement on Privi
leges and Immunities of the Organization of American
States ; Documents and Notes on Privileges and Immuni
ties With S ecial Reference to the Or anization of
American States . Washington, D. C.: 19 3.
Permanent Court of nternational Justice. Twelfth Annual
Re ort of the Permanent Court of International
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'Staff of the Secretariat of the League of Nations,"
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Balfour, Official Journal, 1:136-39, June, 1920.
'echnical Concentration of the ctivities of the League of
Nations and Rationalization of the Services of the
ecretariat and the International Labour Ofrice,"
Official Journal, pecial upplement o. 118, May 27,
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The Federation of rivate and Semi,-Official Organiza
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Genevai 1937• 28 PP•
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A/CN. 5/2, July, 19$0. 12 PP•
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312
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Genera of the nited ations. aw York: United
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United ations, Annual Re ort of the Secretar -General
on the Work of the Or anization Ju 19 9 -
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New York: United Nations Publications, 1951.
March 1, 1951. 44 PP•
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Selected Bibliography of the Specialized Agencies
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of the Economic and Social Council of the United
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1948. E/INF/23. 42 PP•
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Budgetary Coordination Between tne United Nations
and the Specialized Agencies. A/1352, 7 September
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Rules. Re ort of the Secretar -General. A/551,
May 13, 19 3 PP•
United Nations, General Assembly.
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of the ~ecialized Agencies.
1947• 4 PP•
Coordination of the
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11
79th Congress, 1st Ses
sion, December 29, 1945.
APPENDIX
- - - - -- - - --
APPENDIX I
THE PROVISIONAL MODUS VIVENDI OF 1921 WITH THE
SWISS FEDERAL COUNCIL*
(League or Nations Docwnent c.66.1926.v.}
*
Martin Hill, Immunities and Privileges of Interna-
tional Officials (Washington: Carnegie Endowment for
International Peace, 1947), pp. 121-129.
ANNEX I
The Provisional "Modus Vivendi" of 1921 with
The Swiss Federal Council
A
318
Letter of July 19, 1921, from the head of the Federal
Political Department to the Secretary-General of the League
ot Nations (translation from the original French text).
Sir,
The Swiss Federal Government has been particularly
happy to note that, as a result of the conferences held at
Geneva and Berne a few months ago, and subsequent corre
spondence, the views of the Secretary-General of the Leag~
or Nations concerning the application of Article 7, para
graph 4, ot the Covenant now coincide on many points with
its own views on the subject.
On the basis of the result obtained in our conversa
tions, the Federal Council has instructed us to transmit
to you the following proposals regarQing the points on
which an agreement has been reached. These proposals
~ght form the basis of an initial and provisional modus
vivendi for the League of Nations at Geneva. This partial
settlement which may be subject to revision at any time at
the request of either party, could easily be completed sub
sequently as each point still under discussion was settled.
The proposals in question are as follows:
r. staff
The start of the Secretariat of the League of Nations
and the International Labour Office shall be accorded the
same prerogatives and immunities as are conferred by inter
national law and practice on the staff of diplomatic mis
sions; 1 t shall accordingly be placed on the sau1e footing,
mutatis mutandis, as the members of diplomatic missions
accredited to tfie Confederation. For the purposes of this
arrangement the stafr is divided into two distinct cate
gories, each of which is in a dirferent situation.
The staff of the First Cate~orx (in Berne, the diplo
matic corps and the heads of c ancelleries) will comprise,
in Geneva, the members of the staff whose rank and duties
correspond to those of public officials. This staff,
known as the "exterritorial staff" will, by assimilation
with the diplomatic corps in Berne, be accorded the benefit
of the prerogatives and immunities which, in practice, are
collectively described by the term "exterritoriality" and
319
which are as follows:
A. Inviolability, in the technical signification given
to this word in international law.
B. Exterritoriality, in the precise and limited sense
of this term, that is to say, the presumption according to
which the person who is entitled thereto is deemed to re
tain his domicile in his country of origin.
c. Immunity from civil and criminal jurisdiction, as
this is understood in international law.
In application, by analogy, of the custom which confers
on Governments the right to ask, at any time, for the
recall of a diplomat whose attitude or conduct gives
grounds for dissatisfaction, the Secretary-General of the
League of Nations and the Director of the International
Labour Office, if and when the Federal Government reports
such cases to them, will submit them to careful examination
and will apply, with regard to the official in question,
administrative sanctions which may amount to dismissal.
This procedure will, of course, be without prejudice to any
judicial prosecution that may be instituted in the event of
infringement of the law. Judicial action (save for the
exceptions provided for in international law) will be a
matter for the competent authorities of the country of
origin of the person concerned. If, however, the Secretary
General or the Director of the In.ternational Labour Office
should waive the immunity covering their official, the
Swiss Courts could then, the bar of exterritoriality having
been removed, have the matter in question brought before
them through the normal application of their own procedure.
Particularly in serious cases, the waiving of the immunity
would be highly desirable.
In civil matters also, if the official concerned waived
his right to invoke his exterritoriality, the Swiss Courts
would resume their competence as being the Courts of the
place of de facto domicile.
D. Fiscal immunity, that is to say, exemption from
direct personal taxes and taxes on luxuries, general taxes
on property, whether in the form of capital or of income,
and from war-taxes (decimes de guerre).
E. In regard to Customs matters:
(1) In pursuance of the decision taken in this con
nection by the Federal Council, on July 5th, 1921, the
under-mentioned Principal Officers of the League of Natias,
provided they are not Swiss citizens, shall enjoy freedom
from Customs duties in respect of all articles intended
for their personal use, namely:
(a) The Secretary-General of the League of Nations
and his Deputy, the two Under-secretaries
General and the eight Directors of the Secre
tariat;
320
(b) The Director and the Deputy Director of the
International Labour Office and the two Chiefs
of Division of that Office.
These officials shall, further, on the same footing as
diplomatic representatives in Berne, be exempt, in princi
ple, from Customs examination of their baggage.
{2) The remainder of the staff of the first cate
gory shall enjoy the same advantages as are accorded to the
whole of the diplomatic corps in Berne by the Decree of the
Federal Council dated October 8th, 1912 (importation free
of Customs duties of new articles for the first establish
ment of a home (Kremi8re installation), etc.); the Customs
examination oft e baggage of these officials shall, as in
the case of the diplomatic corps, be limited to what is
absolutely necessary.
F. Members of the staff of the first category will be
entitled to diplomatic visas on their passports. Such a
visa, issued by the Foreign Ai'fairs Division of the Federal
Political Department, may be either a visa for a particular
occasion, that is to say, valid for a single journey from
and return to the country or, on request, a permanent visa,
that is to say, valid for an unlimited number of journeys
from the country and return thereto by any frontier points,
with a period of validity that may extend to one year. The
diplomatic visa may be obtained also from any Swiss Lega
tion abroad.
G. The wife and the children of officials of the first
category will be granted the same status as the head of
the family, provided they reside with him and do not exer
cise any vocation.
The Secretariat and the International Labour Office
will draw up a list of the names of the members of their
staff of the first category, specifying the nationality,
duties and address of each 9,,tficial and stating whether he
is married or unmarried. This list will be communicated
to the Federal Political Department which will be regularly
informed of alterations; on the basis thereof, the Foreign
Affairs Division will provide the persons concerned with
identity cards, bearing the photograph of the holder;
these cards, countersigned by the Secretariat or the Inter
national Labour Office, will serve to establish the iden
tity of the official for the purposes of the Federal and
Cantonal authorities; they will be returned in the case of
final departure.
The members of the staff of the Second Cate (nonex-
terri orial wi comprise the remainder of the o ficial
staff, that is to say the technical and manual staff, or,
in other words, all those who, although they cannot be
321
assimilated to public officials , Bre nevertheless employed
and paid by the League of Nations and are in the service
solely of the Secretariat of the League of Nations or the
International Labour Office. The situation of the members
of this category of the staff will be as follows:
A. They will enjoy complete immunity in respect of actB
performed by them in their official capacity and within
the limits of their duties. They will, however, be subject
to local laws and jurisdiction in respect of acts performed
by them in their private capacity. Nevertheless, if judi
cial, police or other measures taken with regard to a mem~
bar of this category of the staff should be of such a
nature as to interfere with the normal functioning of the
services of the League of Nations, the Federal Political
Department will, at the request of the Secretariat, at once
bring this fact to the notice of the competent authority
which will take account of it to the extent compatible
with public order.
B. The members of the staff of this category will be
exempt from the obligation to report in person to the
local police authorities and to submit their identity
papers. A list of the names of the members of the staff
of the second category, similar to that mentioned above
with regard to members of the exterritorial staff, will
also be supplied to the Federal Political Department by
the Secretariat and the International Labour Office. On
the basis on this list, which must, like the list of the
members of the staff of the first category, be kept con
stantly up to date, identity cards , of a colour different
from those of the members of the exterritorial staff, will
be issued to the persons concerned by the Foreign Affairs
Division.
c. In regard to fiscal matters , the members of the
staff of the second category will, in accordance with the
Federal Decree dated September 28th, 1920, (Article 18) ar.rl
the Decree dated June 14th, 1921 of the Council of State of
the Canton of Geneva, be exempted:
(1)
(2)
(3)
from taxes (taxes ) on salary (revenu profes
sionnel--traitements);
from the tax (taxe) on capital (fortune), (in
so far, at all events, as the amount of the in
come does not exceed that of the salary);
from the Federal W ar rax.
D. In regard to Customs matters, members of the staff
of the second category will have the benefit of the same
facilities in respect of Custom examination of baggage as
members of the exterritorial staff. The members of this
category of the staff will, however, like the correspond
ing members of staffs in Berne , not be entitled to any
exemption from Customs duties.
322
E. In regard to passports, the members of the staff of
the second category will, like the corresponding members
of staffs in Berne, receive the official {non diplomatic}
visa of the Foreign Affairs Division. Like the diplomatic
visa, this visa is either a visa for a particular occasion
or a perm.anent visa, with the same maximum period of
validity.
F. The wife and children of a member of the staff of
the second category will be granted the same status as the
head of the family, provided they reside with him and do
not exercise any vocation.
The above provisions, both those concerning exterritori
al staff and those applicable to staff of the second cate
gory, do not apply to staff - of Swiss nationality, the posi
tion of the latter still remaining unsettled.
rt can however, be stated forthwith:
A. That Swiss nationals who are officials or employees
of the League of Nations are immune from jurisdiction in
respect of all acts performed by them in their official
capacity and within the limits of their duties;
B. That those of them who by reason of their duties
are classed in the first category are entitled, when pro
ceeding abroad on mission, to an official passport of the
Federal Council;
c. That, in accordance with the Decree dated June 14,
1921, of the Council of State of the Canton of Geneva they
shall be exempted, in that Canton, from payment of the tax
on earned income in respect of -the salaries paid to them
by the League of Nations.
II. Premises, Archives and Couriers
A. The premises in which the services of the League of
Nations (Secretariat and International Labour Office) are
installed (in the case of buildings occupied by League
offices, the buildings themselves, together with gardens
and annexes) will be inviolable, by which should be under
stood that no agent of the public authority will be en
titled to enter them, in the exercise of his duties, with
out the consent of the Secretariat or of the International
Labour Office.
B. The archives of the League of Nations will be in
violable.
c. In application, by analogy of the right enjoyed by
diplomatic missions to correspond freely with their Govern
ments, the Secretariat and the International Labour Office
will be entitled to use official couriers for the trans
mission of their official correspondence to their agents
abroad {and vice versa); reference should, in this connec
tion, be made to the correspondence exchanged between the
323
Foreign Affairs Division and the Secretariat concerning the
details of the arrangements for the service of couriers
between Geneva and Paris.
D. The League of Nations will enjoy complete exemption
from Customs duties in respect of all art cles which are
its own property (as distinct from the property of the mem
bers of its staff) and are intended solely for the use of
the Secretariat or of the Internat:1.onal Labour Office
(furniture, equipment, office supplies, etc . ).
III. International Personality of the L~ague of Nations
Although Article 7 of the Covenant of the League of
Nations relates only to the staff and t he 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 Nati ons 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 t he League of Nations may claim the same
independence in respect of Swiss administrative and judic:ial
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.).
Nevertheless, as the League of N ati ons , unlike other
international legal entities, cannot, f or lack of territory,
offer any Courts, it follows that it cannot , at present, be
sued anywhere without its own consent. Doubtless, the
League of Nations may already in virtue of the fact that
its seat is in Geneva, at any time, appl y to Swiss Courts;
for this purpose it need only waive the benefits of its
exterritoriality; it may do this, either expressly, by be
coming the plaintiff, or tacitly, by not raising the objec
tion that the Court in question has no jurisdiction. The
Swiss Government is, however, of opinion that it would
certainly be preferable that the League should, in its own
interest, not confine itself to the jurisdiction of the
Swiss Courts, which, at present, is not compulsory upon it
but merely optional, and that it should, as soon as possi
ble, elect a general legal domicile. The choice of such a
domicile might, moreover, be entirely pr ovisional in
character. Having regard to the fact t hat the League of
Nations has its seat in Geneva, it would seem to be natural
that it should el~ct domicile in that city.
As the Lea ue of Nations may already , if it so desires,
appeal to the Swiss Courts, it is not necessary for the
Federal Government to make any offers in this connection;
it confines itself to expressing the hope that it may at an
324
early date be in possession of such proposals as the
Secretariat may be able to make with a view to remedying
the abnormal features of the present situation.
Whilst awaiting such communications as you may be good
enough to make to us concerning the foregoing, we avail
ourselves of this opportunity, etc.
(Signed) MOTTA
Federal Political Department
The Hon. Sir Eric Drummond,
Secretary-General of the League of Nations.
B
Reply of October 24, 1921, from the Secretary-General
(Translation from original French Text)
Sir,
In reply to your letter B.56/4-l.D.I-CA, dated· July 19th,
I, for my part, am glad to know that the views of the
Swiss Federal Government regarding the questions of diplo
matic privileges and immunities coincide on most points
with my own.
Indeed, it seems that it will be possible to establish
a provisional modus vivendi on the lines of the Swiss
Federal Government
1
s proposals and the following observa
tions which I venture to offer.
I concur in the view that this first partial arrange
ment may be revised at any time at the request of either
party.
For the present, therefore, the following conclusions
may be regarded as agreed upon:
r. staff
The staff of the Secretariat of the League of Nations
and the International Labour Office shall be placed on the
same footing mutalis mutandis as the members of diplomatic
missions accredited to the Confederation, that is to say,
it shall be accorded the same prerogatives and immunities
as are conferred by International Law and practice on the
staff of diplomatic missions.
Consequently, the members of the staff whose rank corre
sponds to that of public officials shall enjoy the preroga
tives and immunities which constitute what is known as
exterritoriality.
I shall have the honour to present to the Swiss Federal
325
Government a li s t of the names of the members of the staff
who are in this situation and I shall not fail to communi
cate, from time to time, any alterations which occur.
In regard to the details mentioned under headings A and
D, F, E, G, relating to this category, I am able to state
my complete agreement.
Agreement exists also concerning the situation of the
second category (non-exterritoriality) mentioned in the
letter of the Swiss Federal Government. I would, however,
venture to point out that it might be desirable to insti
tute for the members of this category of the staff the
same fiscal immunity as has been instituted for members of
the staff of the first category.
Agreement exists, further, in regard to questions relat
ing to the premises in which the services of the League of
Nations are installed. The premises in question consist
of the building occupied by the Secretariat and that occu
pied b the International Labour Office. The same will of
course apply to any buildings that may be temporarily
occupied by the League of Nations, such as the Assembly
Hall and the Labour Conference Hall during the period of
their meetings. Should other buildings or land be occupied
by the League of Nations, the Federal Government will be
informed.
As regards the proposals made concerning the archives
of the League of Nations, the courier service and the
question of exemption from Custom duties in respect of
articles belonging to the League and intended solely for
the use of the Secretariat or the International Labour
Office, no observations are called for.
Finally, I would wish to express my appreciation, both
on my own behalf and on behalf of the staff, for the cour
tesy shown by the Swiss Government in regard to exemptions
from Customs duties and the Customs facilities offered by
the Swiss Federal Government to the staff under numbers
r E and II.
It is understood that the position of the staff of
Swiss nationality still remains to be settled. It is, how
ever, understood that Swiss nationals who are officials or
employees of the League of Nations will be immune from
jurisdiction in respect of acts accomplished by them in
their official capacity and within the limits of their
duties; that those who by reason of their duties are
classed in the first category, shall be entitled, when
proceeding abroad on a mission, to an official passport of
the Federal Council and that t~ey shall be exempt from the
payment of the tax on earned income in so far as regards
the salaries granted to them by the League of Nations.
With regard to the last point, I think that the salaries
granted by the League of Nations should be exempted from
every possible kind of taxation.
326
The let t er of the Swiss Federal Government refers also
to the international peI3onality of the League of Nations .
It will perhaps not be necessary to go into details in
regard to this question. It could not be finally settled
by the present correspondence. For my part , I concur in
the view that the League of Nations may claim the same
independence with regard to Swiss judicial administrative
organs as Members of the international community, that is
to say, it cannot , in principle be sued before Swiss Courts
without its own consent . I think there can be no doubt
that, in certain circumstances , the Lea ue of Nations will
consent to recognise the jurisdiction of a judicial tribu
nal in the event of a dispute. Nevertheless , it would
seem to me to be preferable that it should , for the time
being, retain complete liberty in this matter, and this ,
moreover, will be Justified because hitherto, no incon
venience would seem to have arisen from the practice fol
lowed in thi s connection. It will be possible for deci sions on this matter to be taken by the competent organs
of the League of Nations when circumstances so require.
I would add that , in regard to the question of diplo
matic rights, immunities and privileges, the Director of
the International Labour Office, whom I have consulted,
has informed me that he agrees with my statements and with
the modus vivendi arrived at whilst, at the same time ,
stressing the reservation to which I have already referred
at the beginning of this letter to the effect that what is
at present contemplated is nothing other than a modus
vivendi whi ch may be revised at any time.
In submitting the foregoing observations, I avail my
self of t he opportunity, etc.
Eric Drummond
Secretary-General
, ,
Monsieur le Conseiller Federal J. Motta,
Head of the Federal Political Department,
Berne.
APPENDIX II
THE MODUS VIVE DI OF 1926 WITH THE SWISS FEDERAL COUNCIL*
(League of Nations Document c . 66.1926.V.)
~~ artin Hill, Immunities and Privileges of Interna
tional Officials (Washington: Carnegie Endowment ror
International Peace, 1947), PP• 136-142.
ANNEX II
The "Modus Vivendi" of 1926 with
The Swiss Federal Council
328
Communications from The Swiss Federal Council Concerning
The Diplomatic Immunities to be Accorded to The
Staff of The League of Nations and of The
International Labour Office
(Official Journal, 1926, PP• 1422-24.)
Note by the Secretary-General, Submitted to the Council on
September 20
1
1926
Geneva, September 18, 1926
The Secretary-General has the honour to submit to the
Council the text of a new modus vivendi concerning the
diplomatic immunities of the staff of the League organisa
tions at Geneva. This text has been accepted both by the
Federal Government and by the Secretary-General and the
Director of the International Labour Office.
I
The Swiss Federal Government recognises that the League
of Nations, which poss6sses 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.
II
The premises in which the services of the League of
Nations {Secretariat and International Labour Office) are
installed (in the case of buildings entirely occupied by
League offices, the buildin s themselves, together with
gardens and annexes) are inviolable, that is to say, no
agent of the public authority n1ay enter them, in the exer
cise of his duties, without the consent of the Secretariat
or of the International Labour Office.
III
The archives of the League of Nations are inviolable.
329
IV
The Secretary-General of the League of Nations and the
Director of the International Labour Office are entitled
to use couriers for the reception and despatch of official
correspondence with the Members of the League of Nations
and its agents outside Switzerland.
V
Customs exemption is granted to the Lea ue of Nations
in respect of all objects, whether intended to form an
integral part of a building or not, which are the absolute
property of the League and are destined for its exclusive
use.
VI
The League of Nations shall enjoy complete fiscal
exemption in respect of its bank assets (current and
deposit accounts) and its securities.
In particular, it shall be exempted from the stamp duty
on coupons instituted by the Federal Law of June 25th,
1921. The exemption shall be effected by the repayment to
the League of Nations of the du_ ty levied on its assets.
VII
Subject to the provisions of Article IX below, official9
of the organisations of the League of Nations at Geneva
who are members of the staff of the first category or
extra-territorial staff shall enjoy immunity from civil
and criminal jurisdiction in Switzerland, unless such
immunity is waived by a decision of the Secretary-General
or of the Director of the International Labour Office.
The members of the staff of the second category shall
enjoy the same privileges in respect of acts performed by
them in their orficial capacity and within the limits of
their functions. They shall remain subject to local laws
and jurisdiction in respect of acts performed by them in
their private capacity.
It is clearly understood, however, that the org£.." 1isa
tions or the League or Nations at Geneva will endeavour to
facilitate the proper administration of justice and execu
tion of police regulations at Geneva.
330
VIII
Officials of the organisations of the League of Nations
who are members of the staff of the first category enjoy
fiscal immunity. Consequently, they are exempted, in
accordance with international practice, from all direct
taxes, with the exception of the charges attaching to im
movable property (the land tax). They are liable for the
payment of indirect taxes and charges. The expression
"direct taxes" shall be understood to mean taxes which are
levied directly upon the taxpayer.
11
Charges"--whatever
the expression employed in the regulations governing the
matter may be--shall only be understood to mean payments :in
r turn for the rendering of a special and definite service
by the administration to the person who pays them, togethEr
with those which are paid in order to cover special ex
penditure necessitated by an act of the taxpayer.
Members of the staff of the second category are
exempted: {l) From the tax (taxe) on salary (revenu.,12ro
fessionnel); (2) From the tax (taxe) on capital (fortune)
or income (revenu); (3) From the Emergency Federal W ar Tax.
IX
(As regards the Federal W ar Tax, see annexed note.)
In the case of members of the staff of Swiss nationali
ty, the following exceptions are instituted:
1. Officials of Swiss nationality may not be sued
before the local courts in respect of acts performed by
them in their official capacity and within the limits of
their official duties.
2. The salaries paid to them by the League of Nations
ere exempted from cantonal and municipal direct taxes.
X
The Customs examination of packages, etc., addressed
to the officials of the organisations of the League of
Nations shall be effected in accordance with the regula
tions (prescriptions) the text of which was communicated
to the Secretary-General of the League b y the Head of the
Federal Political Department on January 10th, 1926.
X I
If the exigencies of training and the interests of the
country permit, exemptions from or postponements of
military service shall be granted to officials of Swiss
nationality incorporated in the Federal Army in cas es in
331
which their compliance with an order calling them up for
military service would be likely seriously to interfere
with the normal working of the services of the League.
XII
Ccrrespondence relating to the application of the rules
of the modus vivendi between the organisations of the
League of Nations and the Swiss authorities shall be ex
changed through the intermediary of the Federal Political
Department, except in cases in which some other procedure
has been prescribed.
XI II
The present provisions complete or summarise, but do not
abrogate, t h e rules previously established by an exchange
of notes between the organisations of the League of Nations
and the Federal Political Department.
XI V
As long as the present arrangement remains in force, the
examination of the legal arguments set forth in the notes
of February 24th and March 5th, 1926, shall not be proceed
ed with.
The above rules of the modus vivendi can only be modi
fied by agreement between the organisations of the League
of Nations and the Federal Political Department. If, how
ever, an agreement cannot be reached, it shall always be
open to the Federal Government or to the organisations of
the League of Nations to denounce the whole or part of the
rules of the modus vivendi. In this case, the rules men
tioned in the denouncement shall remain in force for one
year from the date of such denouncement.
Note concerning the Federa.l War Tax
(Members of the Starr of Swiss Nationality)
As regards the exemption from the Federal War Tax granted
to members of the staff of Swiss nationality, the present
position is as follows:
A letter of July 17th, 1926, from the Federal Political
Department shows that the Federal Council is prepared to
exempt from this tax the salary of officials of Swiss
nationality unti l the expiration of the contracts of serv
ice which the persons concerned at present hold and which
make provision for a salary payable free of taxes. By
332
means of this temporary exemption, the Federal Council
desires to prevent the possibility of the payment of the
Federal War Tax resulting, through the operation of the
clauses of the co. ntracts in force, in imposing, even in
directly any charge upon the budget of the League of
Nations. In view of the character and special object of
the Federal War Tax and certain considerations of principle,
the Federal Council does not feel able to contemplate
permanent exemption.
As the Secretary-General has accepted the arrangement
proposed by the Federal Council as regards the contracts at
present in force, but considers it necessary to give further
consideration to the various legal and administrative diffi
culties which might arise from differentiations in con
tracts, a final solution has not up to now been reached.
Amendment to the Second Sentence of Article VIII of the
"Modus Vivendi" ,'/hich Came into Force on April 24
1
1928
(Official Journal, 1928, P• 839.)
(Additions to the original text underlined.)
"Consequently, they are exempted, in accordance with
international practice, from all direct taxe·s, with the
exception of charges attaching to immovable property (the
land tax) and death duties to which they may be liable as
heirs or legatees of a person who has died in Switzerland
or as beneficiaries under a donatio inter vivos the donator
of which is domiciled in Switzerland, it being understood
that the transfer mortis causa or by donatio inter vivas
of property belonging to officials enjoying diplomatic
privileges and immunities shall continue to be exempted
from all taxes; they are liable for ••• ," etc.
APPENDIX III
GENERAL PRINCIPLES AND RULES OF APPLICATION REGULATING
THE EXTERNAL ST- ATUS OF THE MEMBERS OF T~ PERMANENT
COURT OF INTERNATIONAL JUSTICE
(Official Journal, 1928, PP• 985-87.)
~artin Hill, Immunities and Privileges of Interna
tional Officials (Washington: Carnegie Endowment for
International Peace, 1947), PP• 199-202.
334
ANNEX III
General Principles and Rules of Application Regulating
the External Status of the Members of the Permanent
Court of International Justice
(Official Journal, 1928, pps 985-87.)
Agreed between the Netherlands Minister for Foreign Affairs
and the President of the Court; and submitted to and
approved by the Council of the League of Nations, June 5th,
1928.
General Principles
I
The diplomatic privileges and immunities which, under
Article 19 of the Statute of the Permanent Court of Inter
national Justice, the Netherlands authorities grant to the
Members of the Court are the same as they accord in general
to heads of missions accredited to Her Majesty the Queen
of the Netherlands.
The special facilities and prerogatives which the
Netherlands authorities grant, in gener~l, to heads of
missions accredited to Her Majesty the Queen of the Nether
lands will be extended to the members of the Court.
As regards both diplomatic immunities and privileges and
these special facilities, the Registrar of the Court will
be placed on the same footing as the members of the Court.
II
In view of Article 7, paragraph 4, of the Covenant of
the League of Nations, the higher officials of the Court
will be accorded, in principle, as regards diplomatic
immunities ani privileges, the same status as diplomatic
officials attached to the Legations at The Hague.
III
The Permanent Court of International Justice will hold,
in relation to the Netherlands authorities, a position
similar to that of the Corrs diplomatique.
When the Corps diplomat que and the Court are invited to
attend Netherlands official ceremonies at the same time,
the Court will rank immediately after the Corps diplo
matiqu,.
IV
A member of the Court not a national of the Netherlands
335
will be given precedence, in relation to the Netherlands
authorities, as though he were an Envoy Extraordinary and
Minister Plenipotentiary accredited to Her Majesty the
ueen of the Netherlands.
The position of the Registrar of the Court in this
respect will be the same as that of the Secretary-General
of the Permanent Court of Arbitration, as established by
practice.
V
The above principles will be supplemented and defined
by Rules of Application.
Rules of Application
I
Without prejudice to the rules previously laid down in
communications from the Netherlands Ministry of Foreign
Affairs and addressed to the authorities of the Court
before November, 1927, the principles governing the exter
nal status of the members and officials of the Court are
supplemented and defined by the following provisions:
A. - Members and Registrar of the Court
II
1. In General
As regards the precedence of the members of the Court
among them.selves, the Netherlands authorities will observe
the regulations contained in the Rules of Court.
2. Not of Netherlands Nationality
(a) The members and Registrar of the Court will enjoy,
when in Netherlands territory, the diplomatic immunities
and privileges granted, in general , to heads of diplomatic
mission~ accredited to Her Majesty the Queen of the Nether
lands.
(b) The wife and unmarried children or the members and
Re istrar of the Court will sha the s atus of the head
of the family if they live with him and have no other
occupation.
(c) The private staff ( overnesses, housekeepers,
private secretaries, servants, etc.) or the members and
Registrar of the Court will en·joy the same position as that
accorded to the private staff of the heads of diplomatic
336
missions accredited to Her Majesty the ~ueen of the Nether
lands.
3• Of Netherlands Nationality
The members and Registrar of the Court will not be
answerable in the local courts for acts done by them in
their official capacity and within the limits of their
powers. The salaries paid to them out of the budget of
the Court will be exempt from direct taxes.
B. - Deputy-Registrar and Officials of the Court
III
1. In General
(a) The higher officials of the Court at present include,
in addition to the Deputy-Registrar, the drafting secre
taries.
(b) Any questions concerning the external status of all
categories of officials of the Court shall, in case of
doubt, be settled by referring, as far as possible, to the
provisions duly approved by the competent authorities of
the League of Nations for the corresponding officials of
the League institutions established at Geneva.
(c) The Netherlands authorities will not object to the
competent authorities of the Court issuing identity cards
to officials of the Court belonging to the various cate
gories, so that these officials can, if need be, immediate
ly furnish evidence of their external status according to
the present Principles and Rules.
2. Not of Netherlands Nationality
{a) The higher officials of the Court will enjoy, when
in Netherlands territory, the diplomatic immunities and
privileges granted in general to the diplomatic officials
attached to the Legations at The Hague.
(b) The wife and unmarried children of the higher offi
cials of the Court will share the status of the head of
the family if they live with him and have no other occupa
tion.
(c ) The private staff of higher officials of the Court
will enjoy the same position as that accorded to the private
staff of diplomatic officials attached to the Legations
at The Hague.
(d) In the event of an official of the Court infringing
a law or regulation, the Registrar of the Court may, with
the President's approval, after the case has been examined
by the competent national authorities and a detailed report
337
submitted to the Registrar, waive the immunity accorded to
the official.
{e) As re ards precedence in the case of higher offi
cials of the Court, the Deputy-Registrar will be on the
same footing as a councillor attached to a Legation at The
Hague, and the drafting secretaries as secretaries attached
to Legations at The Hague.
3. Of Netherlands Nationality
Higher officials will not be answerable in the local
courts for acts done by them in their official capacity
and within the limits of their powers. The salaries paid
to them out of the budget of the Court will be exempt from
direct taxes.
APPENDIX IV
CONVENTION ON THE PRIVIL G ES AND IMMUNITIES OF
THE UNITED NATI ONS*
~nited Nations, Secretariat, Lega l Department,
Handbook on the Legal Status, Privileges and Immunities,
PP• 26-36.
CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF
THE UNITED NATIONS
339
Adopted by the General Assembly of the United Nations on
13 February 1946.
WHEREAS Ar--ticle 104 of the Charter of the United Nations
provides that the Organization shall enjoy in the territory
of each of its Members such legal capacity as may be neces
sary for the exercise of its functions and the fulfilment
of its purposes and
WHEREAS Article 105 of the Charter of the United 1{ations
provides that the Organization shall enjoy in the territory
of each of its Members such priveleges and immunities as
are necessary for the fulfilment of its purposes and that
representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such
privileges and immunities as are necessary for the inde
pendent exercise of their functions in connection with the
Organization.
CONSEQUENrLY the General Assembly by a Resolution
adopted on the 13 February 1946, approved the following
Convention and proposed it for accession by each Member of
the United Nations.
ARTICLE I
Juridical Personality
SEXJTION 1. The United Nations shall p0ssess 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.
ARTICLE II
Property, Funds and Assets
SECTION 2. The United ations, its property and assets
vJherever located an . 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.
TIO 3. The premises of the United Nations shall be
inviolable. The property and assets of the United Nations,
340
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.
SECTION 4. The archives of the United Nations, and in
general all documents belonging to it or held by it, shall
be inviolable wherever located.
SEXJTION 5. Without being restricted by financial con
trols, regulations or moratoria of any kind,
(a) the United Nations may hold funds, gold or currency
of anr kind and operate accounts in any currency;
(b) The United Nations shall be free to transfer its
funds, gold or currency from one country to another or
within any country and to convert any currency held by it
i nto any other currency.
S EXJTIO T 6. In exercising its rights under Section 5
above, the United Nations shall pay due regard to any
representations made by the Government of any Member inso
f ar as it is considered that effect can be given to such
representations without detriment to the interests of the
United Nations.
SE1CTION 7. The United Nations, its assets, income and
ot her property shall be:
(a) exempt from all direct taxes; it is understood,
however, that the United Nations will not claim exemption
f rom taxes which are, in fact, no more than charg es for
public utility sei vices;
{b) exempt from customs duties and prohibitions and
r estrictions on imports and exports in respect of articles
imported or exported by the United Nations for its offi
cial use. It is understood, however, that articles im
ported under such exemption will not be sold in the country
i nto which they were imported except under conditions
agreed with the Government of that country;
(c) exempt from customs duties and prohibitions and
r estrictions on imports and exports in respect of its
publications.
SEXJTION 8. While the United Nations will not, as a
eneral rule, claim exemption from exc i se duties and from
taxes on the sale of movable and immovable property which
f orm part of the price to be paid, nevertheless when the
United Nations i s making important purchases for official
use of property on which such duties and taxes have been
charged or are char eable, M embers will, whenever possible,
make appropriate administrative arrangements for the re
mission or return of t he amount of duty or tax.
341
ARTICLE III
Facilities in Respect of Communications
SECTION 9. The United Nations shall enjoy in the
territory 01 each Member for its official communications
treatment not less favourable than that accorded by the
Government of that Member to any other Government includ
ing its diplomatic mission in the matter of priorities,
rates and taxes on mails, cables, telegrams, radiograms,
telephotos, telephone and other communications; and press
rates for information to the press and radio. No censor
ship shall be applied to the official correspondence and
other official communications of the United Nations.
SEnTION 10. The United Nations shall have the right to
use codes and to despatch and receive its correspondence
by courier or in bags, which shall have the same immunities
and privileges as diplomatic couriers and bags.
ARTICLE IV
The Representatives of Members
SECTION 11. Representatives of Members to the princi
pal and subsidiary organs of the United Nations and to
conferences convened by the United Nations, shall, while
exercising their functions and during their journey to and
from the place of meeting, enjoy the following privileges
and immunities:
(a) immunity from personal arrest or detention and from
seizure of their personal baggage, and, in respect of worciJ
spoken or written and all acts done by them in their
capacity as representatives, immunity from legal process
of every kind;
(b) inviolability for all papers and documents;
(c) the right to use codes and to receive papers or
correspondence by courier or in sealed bags;
(d) exemption in respect of themselves and their spouses
from immigration restrictions, aliens registration or
national service obligations in the state they are visiting
or through which they are passing in the exercise of their
functions;
(e) the same facilities in respect of currency or ex
change restrictions as are accorded to representatives of
foreign governments on temporary official missions;
(f) the same immunities and facilities in respect of
their personal ba gage as are accorded to diplomatic
envoys, and also;
(g) such other privileges, immunities and facilities
not inconsistent with the foregoing as diplomatic envoys
enjoy, except that they shall have no right to claim exenp
tion from customs duties on goods imported (otherwise than
as part of their personal baggage) or from exercise duties
or sales taxes.
SECTION 12. In order to secure, for the representa
tives of Members to the principal and subsidiary organs of
the United Nations and to conferences convened by the
United Nations, complete freedom of speech and independence
in the discharge of their duties, the immunity from legal
process in respect of words spoken or written and all acts
done by them in discharging their duties shall continue to
be accorded, notwithstanding that the persons concerned
are no longer the representatives of Members.
S:EnTION 13. Where the incidence of any form of taxa
tion depends upon residence, periods during which the
representatives of Members to the p1•incipal and subsidiary
organs of the United Nations and to conferences convened
by the United Nations are present in a state for the dis
charge of their duties shall not be · considered as periods
of residence.
S:EnTION 14. Privileges and immunities are accorded to
the representatives of Members not for the personal benefit
of the individuals themselves, but in order to safeguard
the independent exercise of their functions in connection
with the United Nations. Consequently a Member not only
has the right but is under a duty to waive the immunity of
its representative in any case where in the opinion of the
:t-1ember the immunity would impede the course of justice, and
it can be waived without prejudice to the purpose for which
the immunity is accorded.
S~TION 15. The provisions of Sections 11, 12 and 13
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.
S~TION 16. In this article the expression "represent;.
atives
11
shall be deemed to include all delegates, deputy
delegates, advisers, technical experts and secretaries of
delegations.
ARTICLE V
Officials
343
S~TION 17. The Secretary-General will specify the
categories of officials to which the provisions of this
Article and Article VII shall apply. He shall submit
these categories to the General Assembly. Thereafter
these categories shall be communicated to the Governments
of all Members. The names of the officials included in
these categories shall from time to time be made known to
the Governments of Members.
SEnTION 18. Officials of the United Nations shall:
(a} be immune from legal process in respect of words
spoken or written and all acts performed by them in their
official capacity;
(b) be exempt from taxation on the salaries and emolu
ments paid to them by the United Nations;
(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;
(a) be accorded the same privileges in respect of
exchange facilities as are accorded to the officials of
comparable ranks forming part of diplomatic missions to
the Government concerned;
(f) be given, together with their spouses and relatives
dependent on them, the same repatriation facilities in
time of international crisis as diplomatic envoys;
(g) have the right to import free of duty their furni
ture and effects at the time of first taking up their post
in the country in question.
SJIDTION 19. In addition to the immunities and privi
leges specified in Section 18, the Secretary-General and
all Assistant Secretaries-General shall be accorded in
respect of themselves, their spouses and minor children,
the privileges and immunities, exemptions and facilities
accorded to diplomatic envoys, in accordance with interna
tional law.
SE"XJTION 20. Privileges and immunities are granted to
officials in the interests of the United Nations and not
for the personal benefit of the individuals themselves.
The Secretary-General shall h_ ave 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
344
justice and can be waived without prejudice to the inter
ests of the United Nations. In the case of the Secretary
General, the Security Council shall have the right to waive
immunity.
S~TION 21. The United Nations shall co-operate at all
times with the appropriate authorities of Members to
facilitate the proper administration of justice, secure
the observance of police regulations and prevent the occtlI'
rence of any abuse in connection with the privileges· ,
immunities and facilities mentioned in this Article.
ARTICLE VI
Experts on Missions for the United Nations
SJIDTION 22. Experts {other than officials coming within
the scope of ArticleV) 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 mis
sions. 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 notwith
standing 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) the same facilities in respect of currency or ex-
change restrictions as are accorded to representatives of
foreign govern~ents on temporary official missions;
(f) the same immunities and facilities in respect of
their personal baggage as are acco1•ded to diplomatic en
voys.
SEnTION 23. Privileges and immunities are granted to
experts in the interests of the United Nations and not for
the personal benefit of the individuals themselves. The
Secretary-General sha11 have the right and the duty to
waive the immunity of any expert in any case where, in his
opinion, the immunity would impede the course of justice
and it can be waived without prejudice to the interests of
the United Nations.
345
ARTICLE VII
United Nations Laissez-Passer
s:mTION 24. The United Nations may issue United Nations
laissez-passer to its officials. These laissez-passer
shall be recognized and accepted as valid travel docwnents
by the authorities of Members, taking into account the
provisions of Section 25.
S~TION 25. Applications for visas (whtre required)
from the holders of United Nation, s laissez-passer, when
accompanied by a certificate that they are travelling on
the business of the United Nations, shall be dealt with as
speedily as possible. In addition, such persons shall be
granted facilities for speedy travel.
S~TION 26. Similar facilities to those specified in
Section 25 shall be accorded to experts and other persons
who, though not the olders of United Nations laissez•
passer, have a certi icate that they are travelling on the
business of the United Nations.
SIDTION 27. The Secretary-General, Assistant Secretar~ ...
ies-General and Directors travelling on United Nations
laissez-passer on the business of the United Nations shall
be granted the same facilities as are accorded to diplo
matic envoys.
SIDTION 28. The provisions of this article may be
applied to the comparable officials of specialized agencies
if the agreements for relationship made under Artie.le 63
of the Charter so provide.
ARTICLE VIII
Settlement of Disputes
SEXJTION 29. The United Nations shall make provisions
for appropriate modes of settlement of:
(a) disputes arisin out of contracts or other disputes
of a private law character to which the United Nations is
a party;
(b) disputes involving any official of the United
Nations who by reas on of his official position er1joys
immunity, if immunity has not been waived by the Secretary
General.
346
S:&:TION 30. All differences arising out of the inter
pretation or application of the present convention shall
be referred to the International Court of Justice, unless
in any case it is agreed by the parties to have recourse
to another mode of settlement. If a difference arises
between the United Nations on the one hand and a Member
on the other hand, a request shall be made for an advisory
opinion on any legal question involved in accordance with
Article 96 of the Charter and Article 65 of the Statute
of the Court. The opinion given by the Court shall be
accepted as decisive by the parties.
FINAL ARTICLE
S~TION 31. This convention is submitted to every
Member of the United Nations for accession.
S~TION 32. 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 instru
ment of accession.
S~TION 33. The Secretary-General shall inform all
Members of the United Nations of the deposit of each
accession.
SIDTION 34• It is understood that, when an instrument
of accession is deposited on behalf of any Member, the
Member will be in a position under its own law to give
effect to the terms of this convention.
SIDTION 35. This convention shall continue in force as
between the United Nations and every Member which has
deposited an instrument of accession for so long as that
Member remains a Member of the United Nations, or until a
revised general convention has been approved by the
General Assembly and that Member has become a party to this
revised convention.
S~TION 36. The Secretary-General may conclude with
any Member or Members supplementary agreements adjusting
the provisions of this convention so far as that Member or
those Members are concerned. These supplementary agree
ments shall in each case be subject to the approval of the
General Assembly.
APPENDIX V
AGREEMENT BETWEEN THE UNITED NATIONS AND THE UNITED STATES
OF AMERICA REGARDING THE HEADqUARTERS OF
THE UNITED NATIONS*
*
United Nations, Secretariat, Legal Department,
Handbook on the Legal Status, Privileges and Immunities,
PP• 57-76.
348
AGREEMENT BETWEEN THE UNITED NATIONS AND THE UNITED STATES
OF AMERICA REGARD NG THE HEADQUARTERS OF
THE UNITED NATIONS
The United Nations and the United States of America,
Desiring to conclude an agreement for the purpose of
carrying out the resolutior1 adopted by the General Assembly
on 14 December 1946 to establish the seat of the United
Nations in the City of New York and to regulate questions
arising as a result thereof;
Have appointed as their representatives for this purpose:
The United Nations: Trygve Lie, Secretary-General, and
The United States of America: George c. Marshall,
Secretary of State,
Who have agreed as follows:
ARTICLE I
Definitions
S~TION 1 . In this agreement:
(a) The expression "headquarters district" means:
1 . The area defined as such in Annex I;
2 . Any other lands or buildings which may from time to
time be included therein by supplemental agreement with
the appropriate American authorities; ·
(b) The expression "appropriate Ar.1 rican authorities"
means such federal, state, or local authorities in the
United States as may be appropriate in the context and in
accordance with the laws and customs of the United States,
including the laws and customs of the state and local
government involved;
(c) The expression "General Convention" means the Con
vention on the Privileges and Immunities of the United
Nations approved by the General Assembly of the United
Nations on 13 February 1946, as acceded to by the United
States;
{d) The expression "United Nations" means the interna
tional organization established by the Charter of the
United Nations, hereinafter referred to as the "Charter";
(e) The expression "Seer tary-General" means the Sec
retary-General of the United Nations.
349
ART CLE II
The Headquarters District
SECTION 2. The seat of the United Nations shall be the
headquarters district.
SIDTION 3• The appropriate American authorities shall
take whatever action may be necessary to assure that the
United Nations shall not be dispossessed of its property in
the headquarters district, except as provided in section 22
in the event that the United Nations ceases to use the
same, provided that the United Nations shall reimburse the
appropriate American authorities for any costs incurred,
after consultation with the United Nations, in liquidating
by eminent domain proceedings or otherwise any adverse
claims.
SEDTION 4 (a) The United Nations may establish and
operate in the headquarters district:
1. Its own short-wave sending and receiving radio
broadcasting facilities, including emergency link equipment,,
which may be used on the same frequencies (within the
tolerances prescribed for the broadcasting service by
applicable United States regulations) for radio-telegraph,
radio-teletype, radio-telephone, radio-telephoto, and
similar services;
2. One point-to-point circuit between the headquarters
district and the office of the United Nations in Geneva
(using single sideband equipment) to be used exclusively
for the exchange of broadcasting programmes and inter
office communications;
3. Low power, micro-wave, low or medium frequencies,
facilities for communication within headquarters buildings
only, or within such other buildings as may temporarily be
used by the United Nations;
4• Facilities for point-to-point communications to the
same extent and subject to the same conditions as permitte: d
under applicable rules and regulations for amateur opera
tors in the United States, except that such rules and
regulations shall not be applied in a manner inconsistent
with the inviolabilitJ of the headquarters district pro
vided by section 9 (a);
5. Such other radio facilities as may be specified by
supplemental agreement between the United Nations and the
appro~riate American authorities.
(b) The United Nations shall make arrangements for the
operation of the services referred to in this section with
the International Telecommunication Union, the appropriate
gencies of the Government of the United States and the
appropriate a encies of other affected Governments with
350
regard to all frequencies and similar matters.
{c) The facilities provided for in this section may,
to the extent necessary for efficient operation, be estab
lished and operated outside the headquarters district.
The appropriate American authorities will, on request
of the United Nations, make arrangements, on such terms
and in such manner as may be agreed upon by supplemental
agreement, for the acquisition or use by the United Nations
of appropriate premises for such purposes and the inclusion
or such premises in the headquarters district.
SE!CTION 5. In the event that the United Nations should
find it necessary and desirable to establish and operate an
aerodrome, the conditions for the location, use and opera
tion of such an aerodrome and the conditions under which
there shall be entry into and exit therefrom shall be the
subject of a supplemental agreement •
. SECTION 6. In the event that the United Nations should
propose to organize its own postal service, the conditions
under which such service shall be set up shall be the sub
ject of a supplemental agreement.
ARTICLE III
Laws applicable and competent authority in the
~eadquarters District
S~TION 7 (a) The headquarters district shall be under
the control and authority of the United Nations as provided
in this agreement.
(b) Except as otherwise provided in this agreement or
in the General c~nvention, the federal, state and local law
of the United States shall apply within the headquarters
district.
{c) Except as otherwise provided in this agreement or
in the General Convention, the federal, state and local
courts of the United States shall have jurisdiction over
acts done and transactions taking place in the headquarters
district as provided in applicable federal, state and local
laws.
(d) The federal, state and local courts of the United
States, when dealing with cases arising out of or relating
to acts done or transactions taking place or in the head
quarters district, shall take into a~count the regulations
enacted by the United Nations under section 8.
SH!TION • The United Nations shall have the power to
make regulations, operative within t~ headquarters dis
trict, for the purpose of establishing therein conditions
351
in all respects necessary for the full execution of its
functions. No federal, state or local law or regulation
of the United States which is inconsistent with a regula
tion of the United Nations authorized by this section shall,
to the extent of such inconsistency, be applicable within
the headquarters district. Any dispute, between the United
Nations and the United States, as to whether a regulation
of the United Nations is authorized by this section or as
to whether a federal, state or local law or regulation is
inconsistent with ariy regulation of the United Nations
authorized by this section, shall be promptly settled as
provided in section 21. Pending such settlement, the regu
lation of the United Nations shall apply, and the federal,
state or local law or regulation shall be inapplicable in
the headquarters district to the extent that the United
Nations claims it to be inconsistent with the regulations
of the Urrl.ted Nations. This section shall not prevent the
reasonable application of fire protection regulations of
the appropriate American authorities.
SECTION 9 (a) The headquarters district shall be in
violable. Federal, state or local officers or officials of
the United States, whether administrative, judicial,
military or police, shall not enter the headquarters dis
trict to perform any official duties therein except with
the consent of and under conditions agreed to by the
Secretary-General. The service of legal process, including
the seizure of private property, may take place within the
headquarters district only with the consent of and under
conditions ~pproved by the Secretary-General.
(b) Without prejudice to the provisions of the General
Convention or Article IV of this agreement, the United
Nations shall prevent the headquarters district from becom
ing a refuge either for persons who are avoiding arrest
under the federal, state, or local law of the United States
or are required by the Government of the United States for
extradition to another country, or for p ersons who are
endeavouring to avoid service of legal process.
S~TION 10. The United Nations may expel or exclude
persons from the headquarters district for violation of its
regulations adopted under section 8 or for other cause.
Persons who violate such regulations shall be subject to
other penalties or detention under arrest only in accord
ance with the provisions of such laws or regulations as may
be adopted b y the appropriate American authorities.
ARTICLE IV
Communications and Transit
352
SIDTION 11. The federal, state or local authorities or
the United States shall not impose any impediments to
transit to or from the headquarters district of:
1. Representatives or Members or officials of the
United Nations, or of specialized a gencies as defined in
Article 57, paragraph 2, of the Charter, or the families of
such representatives or officials;
2. Experts performing missions for the United Nations
or for such specialized agencies;
3• Representatives of the Press, or of radio, film or
other information agencies, who have been accredited by the
United Nations (or by such a specialized agency) after con
sultation with the United States;
4. Representatives of non-governmental organizations
recognized by the United Nations for the purpose of con
sultation under Article 71 of the Charter; or
5. Oth~r persons invited to the headquarters district
by the United Nations or by such specialized agency on
official business.
The appropriate American authorities shall afford any
necessary protection to such persons while in transit to
or from the headquarters district. This section does not
apply to general interruptions of transportation which are
to be dealt with as provided in section 17, and does not
impair the effectiveness of generally applicable laws and
regulations as to the operation of means of transportation.
SIDTION 12. The provisions of section 11 shall be
applicable irrespective of the relations existing between
the Governments of the persons referred to in that section
and the Government of the United States.
SECTION 13 (a) Laws and regulations in force in the
United States regarding the entry of aliens shall not be
applied in such manner as to interfere with the privileges
referred to in section 11. When visas are required for
persons referred to in that section, they shall be granted
without charge and as promptly as possible.
(b) Laws and regulations in force in the United States
regarding the residence of aliens shall not be applied in
such manner as to interfere with the privileges referred
to in section 11 and, spscifically, shall not be applied
in such manner as to require any such person to leave the
United States on account of any activities performed by
him in his official capacity. In case of abuse of such
privileges of residence b any such person in activities
353
in the United States outside his official capacity, it is
understood tl_at the privileges referred to in section 11
shall not be construed to grant him exemption from the laws
and regulations of the United States regarding the continued
residence of aliens, provided that:
1. No proceedings shall be instituted under such laws
or regulations to acquire any such person to leave the
United States except with the prior approval of the Secre
tary of State of the United States. Such approval shall be
given only after consultation with the appropriate Member
in the case of a representative of a Member (or a member of
his family) or with the Secretary-General or the principal
executive officer of the appropriate specialized agency in
the case of any other person referred to in section 11;
2. A representative of the Member concerned, the Secre
tary-General or the principal executive officer of the
appropriate specialized agency, as the case may be, shall
have the right to appear in any such proceedings on behalf
of the person against whom they are instituted;
3• Persons who are entitled to diplomatic privileges
and immunities under section 15 01· under the General Con
vention shall not be required to leave the United States
otherwise than in accordance with the customary procedure
applicable to diplomatic envoys accredited to the United
States.
(c) This section does not prevent the requirement of
reasonable evidence to establish that persons claiming the
rights granted by section 11 come within the classes
described in that section, or the reasonable application of
quarantine and public health regulations.
(d) Except as provided above in this section and in
the General Convention, the United States retains full con
trol and authority over the entry of persons or property
into the territory of the United States and the conditions
under which persons may remain or reside there.
(e) The Secretary-General shall, at the request of the
appropriate American authorities, enter into discussions
with such authorities, with a view to making arrangements
for registering the arrival and departure of persons who
have been granted visas valid only for transit -to and from
the headquarters district and sojourn therein and in its
immediate vicinity.
(f) The United N ·ations shall, subject to the fore going
provisions of this section, have the exclusive right to
authorize or prohibit er1try of persons and property into
the headquarters district and to prescribe the conditions
under which persons ·may remain or reside there.
SIIDTION 14. The Secretary-General and the appropriate
American authorities shall, at the request of either of
them, consult as to methods of facilitating entrance into
354
the United States, and the use of available means of trans
portation, by persons coming fr om abroad who wish to visit
the headquarters district and do not enjoy the 11ights
referred to in this article.
ARTICLE V
Permanent Re resentatives to the United Nations
S~TION 15. 1. Every pers on designated by a Member as
the principal permanent representative to the United Nations
of such Member or as a permanent representative with the
rank of ambassador or minister plenipotentiary;
2. Such resident members of their stafrs as may be
agreed upon between the Secretary-General, the Government
of the United States and the Governm.ent of the Member con
cerned;
3. Every person designated. by a member of a specialized
agency--as defined in Article 57, paragraph 2 of the
Charter--as its principal p rmanent representative, with
the rank of ambassador or minister plenipotentiary at the
headquarters of such agency in the United States; and
4• Such other principal permanent representatives of
members of a specialized agency and such resident members
of the staffs or representatives of a specialized agency
as may be agreed upon between the principal executive offi
cer of the specialized a gency, the Government of the United
States and the Government of the Member concerned, shall,
whether residing inside or outside the headquarters dis
trict, be entitled in the territory of the United States
to the same privileges and immunities, subject to corre
sponding conditions and obligations , as it accords to diplo
matic envoys accredited to it. In the case of Members
whose Governments are not recognized by the United States,
such privileges and immunities need be extended to such
representatives, or persons on the staffs of such repre
sentatives, only within the headquarters district, at their
residences and offices if outside the district, in transit
between the district and such residences and offices, and
in transit on official business to or from foreign coun
tries.
ARTICLE VI
Police Protection of the Head uarters District
SECTION 16. (a) The appropriate American authorities
shall exercise due diligence to ensure that the tranquility
of the headquarters district is not disturbed by the un
authorized entry of groups of persons from outside or by
355
disturbances in its immediate vicinity and shall cause to
be provided on the boundaries of the headquarters district
such police protection as is required for these purposes .
(b) If so requested by the Secretary- General , the
appropriate American authorities shall provide a sufficient
number of police for the preservation of law and order in
the headquarters district and for ,the removal therefrom of
persons as requested under the authority of the United
Nations . The United Nations shall , if requested , enter
into arran ements with the appropriate American authorities
to reimburse them for the reasonable cost of such services .
ARTICLE VII
Public Services and Protection of the Headquarters District
SEXJTION 17. (a) The appropriate American authorities
will exercise, to the extent requested by the Secretary General, the powers which they possess to ensure that the
headquarters district shall be supplied on equitable terms
with the necessary public services, including electricity ,
water , gas, post, telephone , telegraph, transportation,
draina ge , collection of refuse, fire protection, snow
removal , et cetera . In case of any interruption or
threatened interruption of any such services , the appro priate American authorities will consider the needs of the
United Nations as being of equal importance with the similar
needs of essential a gencies of the Government of the United
States, and will take steps accordingly to ensure that the
work of the United Nations is not prejudiced.
(b) Special provisions with reference to maintenance
of utilities and underground construction are contained in
Annex 2.
SECTION 18. The appropriate American authorities shall
take all reasonable steps to ensure that the amenities of
the headquarters district are not prejudiced and the pur poses for which the district is required are not obstructed
by any use made of the land in the vicinity of the distric~
The United Nations shall on its part take all reasonable
steps to ensure that the amenities of the land in the
vicinity of the headquarters distr·.ct are not prejudiced
by any use made of the land in the headquarters district
by the United Nations .
SECTION 19. It is a reed that no form of racial or
religious discrimination shall be permitted within the
headquarters district.
356
ARTICLE VII
attars Relatin to the O eration of this A reement
EDTION 20. The Secretary-General and the appropriate
American authorities shall settle by agreement the channels
through which they will communicate re arding the applica
tion of the provisions of this agreement and other ques
tions affecting the headquarters district, and may enter
into such supplemental governments as may be necessary to
fulfil the purposes of this agreement. In making supple
mental agreements with the Secretary-General, the United
States shall consult with the appropriate state and local
authorities. If the Secretary-General so requests, the
Secretary of State of the United States shall appoint a
special representativ e for the purpose of liaison with the
Secretary-General.
SECTION 21. (a) Any dispute between the United Nations
and the United States concerning the interpretation or
application of this a reement or of any supplemental agree
ment, which is not settled by negotiation or other a eed
mode of settlement, shall be referred for final decision
to a tribunal of three arbitrators, one to be named by the
ecretary of State of the United States , and the third to
be chosen by the to, or, if they should fail to agree upon
a third, then by the Pre ident of the International Court
of Justice.
(b) The Secretary - eneral or the United States may ask
the General Assembly to request of the International Court
of Justice an advisory opinion on any legal question aris
ing in the course of such proceedings. Pending the receipt
of the opinion of the Court, an interim decision of the
arbitral tribunal shall be ohserved by both parties. There
after, the arbitral tribunal shall render a final decision,
having regard to the opinion of the Court.
ARTICLE
Miscellaneous Provisions
S~TION 22. (a) The United Nations shall not dispose
of all or any part of the land owned by it in the head
quarters district without the consent of the United States.
If the United States is unwillin to consent it shall buy
the land in question from the United Nations at a price to
be determined as provided in paragraph (d) of this section.
(b) Tf the seat of the United Nations is remov~d from
the headquarters district, all right, title and ~1terest
of the United Nations in and to real property in the
357
headquarters district or any part of it shall, on r quest
of either the United ations or the United States, be
assi gned and conveyed to the United States. In the absence
of such a request, the same shall be assigned and conveyed
to the sub-division of a state in which it is located or,
if such sub-division shall not desire it, then to the state
in which it is located. If none of the foregoing desire
the same, it may be disposed of as provided in paragraph
(a) of this section.
(c) If the United Nations disposes of all or any part
of the headquarters district, the provisions of other sec
tions of this agreement which apply to the headquarters
district shall immediately cease to apply to the land and
buildings so disposed of.
(d) The price to be paid for any conveyance under this
section shall, in default of agreement, be the then fair
value of the land, buildings and installations, to be
determined under the procedure provided in section 21.
S~TION 23. The seat of the United Nations shal1 not be
removed from the headquarters district unless the United
Nations should so decide.
SECTION 24. This a reement shall cease to be in force
if the sea.t of the United Nations is removed from the
territory of the United States, except for such provisions
as may be applicable in connexion with the orderly termina
tion of the operations of the United Nations at its s~at
in the United States and the disposition of its property
therein.
SECT ION 25. ~herever this agreement imposes obligations
on the appropriate American authorities, the Government of
t he United States shall have the ultimate responsibility
for the fulfilment of such obligations by the appropriate
American authorities.
S~TION 26. The provisions of this agreement shall be
complimentary to the provisions of the General Convention.
In so far as any provisions of this agreement and any pro
visions of the General Convention relate to the same sub
ject matter, the two provisions shall, wherever possible,
be treated as complementary so that both provisions shall
be applicable and neither shall narrow the effect of the
other; but in any case of absolute conflict, the provisions
of this a greement shall prevail.
SECTION 27. This a reement shall be construed in the
li ht of its primary purpose to enable the United Nations
at its headquarters in the United States, fully and effi
ciently, to discharg e its responsibilities and rulfil its
purposes.
358
SECTION 28. This agreement shall be brought into effect
by an exchange of notes between the Secretary-General,
duly authorized pursuant to a resolution of the General
Assembly of the United Nations, and the appropriate execu
tive officer of the United States, duly authorized pursu
ant to appropriate action of the Congress.
IN ITNESS WHEREOF the respective representatives have
s i gned this agreement and have affixed their seals hereto.
Done in duplicate, in the English and French languages,
both authentic, at Lake Success, this twenty-sixth day of
June 1947.
ANNEX I
The area referred to in Section 1, paragraph (a) 1,
consists of:
(a) The premises bounded on the east by the westerly
side of Franklin D. Roosevelt Drive, on the west by the
easterly side of First Avenue, on the north by the south
erly side of East Forty-Eighth Street, and on the south by
the northerly side of East Forty-Second Street, all as
proposed to be widened, in the borough of Manhattan, City
and State of New York, and
(b) An easement over Franklin D. Roosevelt Drive,
above a lower limiting plane to be fixed for the construc
tion and aintenance of an esplanade, together with the
structures thereon and foundations and columns to support
the same in locations below such limiting plane, the entire
area to be more definitely defined by supplemental agree
m ent between the United Nations and the United States of
America.
ANNEX 2
aintenance of Utilities and Underground Construction
SEXJTION 1. The Secretary-General agrees to provide
pa sses to duly authorized employees of the City of New Yo:rk,
the State of New York, or any of their a gencies or sub
divisions, for the pui~pose of enabling them to inspect,
r epair, maintain, reconstruct and relocate utilities, con
dui t s, mains and sewers within the headquarters district.
359
SEXJTION 2. Underground constructions may be undertaken
by the City of New York, or the State of New York, or any
of their agencies or sub-divisions, within the headquarters
district only ~fter consultation with the Secretary-Gener~,
and under conditions which shall not disturb the carrying
out of the functions of the United Nations.
APPENDIX VI
CONV NTION O THE PRIVILEGES AND IMMUNITIES OF
THE SPECIALIZED AGENCIES*
➔~
Carol M. Cross~ell, Protection of International
Personnel Abroad (New York: Delano Publications, 1952),
PP • 139-158.
361
CONVENTION. ON THE PRIVILEG S AND IMMUNITIES OF
THE SPJ:D:JTALIZED A ENCIES
WHEREAS the General Assembly of the United Nations
adopted on 13 February 1946 a resolution contemplating the
unification as far as possible or the privileges and
immunities enjoyed by the United Nations and by the various
specialized agencies; and
WllliREAS consultations concerning the implement ation
of the aforesaid resolution have taken place between the
United Nations and the specialized a gencies;
CONSEQUENTLY, by resolution 179(II) adopted on 21
November 1947, the General Assembly has approved the follcw
ing Convention, which is submitted to the specialized
agencies for acceptance and to every Member of the United
Nations and to every other State member of one or more of
the specialized a encies for accession.
ARTICLE I
Definitions and Scope
SEXJTION 1. In this Convention:
(i) Tha words "standard clauses" refer to the pro
visions of Articles II to IX.
(ii) The words "specialized agencies" mean:
(a) The International Labour Organization;
(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 Develop-
ment;
(g) The World Health Organization;
(h} The Universal Postal Union;
(i) The International Telecommunications Union; and
(j} Any other a gency in relationship with the United
Nations in accordance with Articles 57 and 63 of the
Charter.
(iii) The word
11
Convention° means, in relation to any
particular specialized a cency, the standard clauses as
modified by the final (or revised) text of the annex trans
mitted 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
a· dm.inistered by a specialized a
0
ency in furtherance of its
constitutional functions.
(v) For the purposes of Articles V and VII, the
362
ex ression "representatives o members" shall be deemed
to include all representatives , alternates, advisers,
technical experts and secxetaries of delegations .
(vi) In sections 13, 14, 15 and 25, the expression
"meetings convened by a specialized a ency" 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 a gency in question,
whether designated "Director-General" or otherwise.
S:EDTION 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 a gency 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 provisi ons of the final
(or revised) annex relatin to tha t a ency and transmitted
in accordance with sections 36 or 38.
ARTICLE IT
Juridical Perso~ality
s mTION 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 institut e legal proceedings .
R TICL III
Property, Funds and Assets
S:E)JTIO 4. The specialized a ryencies, their property
and assets, wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except in
so far as in any particular case they have expressly waived
their immunity. It is, however, understood that no waiver
of immunity shall ex-tend to any measure of execution.
SECTION 5. The premises of the specialized agencies
shall be inviolable. The property and assets of the
specialized agencies, wherever located and by whomsoever
held, shall be immune from search, requisition, confisca
tion, expropriation and any other form of interference,
363
whether b y executive , administrative, judicial or le isla
tive action.
s m TION 6. The archives of the specialized a gencies,
and in general all documents belonging to them or held by
them, shall be inviolable, wherever located.
S~TION 7. ithout being restricted by financial
controls, regulations or moratoria of any kind:
(a} The specialized a gencies may hold funds, gold or
currency of any kind and operate accounts in any currency;
(b) The specialized a gencies may freely transfer
t heir funds, gold or currency from one country to another
or wit hin any country and convert any currency held by them
i nt o any other currency.
SECTION 8. Each specialized a gency shall, in exer
cising its ri ghts under section 7 above, pay due regard to
any representation made by the Government of any State
party to this Convention in so far as it is considered that
effect can be given to such representations without detri
ment to the interests of the agency.
S:EIJTI ON 9. The specialized agencies, their assets,
income and other property shall be:
(a) Exempt from all direct taxes; it is understood,
however, that the specialized a encies will not claim
exemption from taxes which are, in fact, no more than
charges for public utility services;
(b) Exempt fro m cus toms duties and prohibitions and
restrictions on imports in respect of articles imported or
exported by the specialized agencies for their official use;
i t is understood, however, that articles imported under sooh
exemption will not be sold in the country into which they
wer e imported except under conditions agreed to with the
Government of that country;
(c) Exempt from duties and prohibitions and restric
tions on imports and exports in respect of their publica
t i ons .
S TIO N 10.
1
hile the specialized agencies will not,
as a general rule, claim exemption from excise duties and
f rom taxes on the sale of movable and immovable property
whi ch form part of the price to be paid, nevertheless when
the s pecialized agencies are making important purchases for
official use of property on which such duties and taxes have
be en char ed or are chargeable, States parties to this Con
vention will, whenever possible, make appropriate adminis
trative arrangemen·ts for the remission or return of the
amount of duty or taxe
364
ARTICLE IV
Facilities in Respect of Communications
S~TION 11. Each specialized agency shall enjoy, in
the territory of each State party to this Convention in
respect of that agency, for its official communications,
treatment not less favourable than that accorded by the
Government of such State to any other Government, including
the latter's diplomatic mission in the matter of priorities,
rate and taxes on mails, cables, telegrams, radiograms,
telephotos, telephone and other communications, and press
rates for ini'ormation to the press and radio.
SF.lJTION 12. No censorship shall be applied to the
official correspondence and other official communications
of the specialized agencies.
The specialized agencies shall have the right to use
codes and to dispatch and receive correspondence by courier
or in sealed bags, which shall have the same immunities and
privileges as diplomatic couriers and bags.
Nothing in this section shall be construed to preclude
the adoption of appropriate security precautions to be
determined by agreement between a State party to this Con
vention and a specialized agency.
ARTICLE V
Representatives of Members
SEDTICN 13. Representatives of members at meetings
convened by a specialized agency shall, while exercising
their functions and during their journeys to and from the
place of meeting, enjoy the following privileges and
immunities:
(a} Immunity from personal arrest or detention and
from seizure o:f' their personal bagg~ge, and in respect of
words spoken or written and all acts done by them in their
official capacity, immunity from legal process of every
kind;
(b) Inviolability for all papers and documents;
(c) The right to use codes and to receive papers or
correspondence by courier or in sealed bags;
(d) Exemptior1 in respect o:f themselves and their
spouses from immigration restrictions, aliens' registration
or national service obligations in the State which they are
visiting or through which they are passing in the exercise
of their functions;
(e) The same facilities in respect of currency or
exchange restrictions as are accorded to representatives of
foreign Governments on temporary official missions;
36.5
(f) The same immunities and facilities in respect of'
their personal baggage as are accorded to members of com
parable rank of diplomatic missions.
SECTION 14. In order to secure for the representa
tives of members of the specialized agencies at meetings
convened by them complete freedom of speech and complete
independence in the discharge of their duties, the immunity
from legal process in respect of words spoken or written
and all acts done by them in discharging their duties shall
continue to be accorded, notwithstanding that the persons
concerned are no longer engaged in the discharge of such
duties.
SIDTION 15. Where the incidence of any form of taxa
tion depends upon residence, periods during which the
representatives of members of the specialized agencies at
meetings convened by them are present in a member State for
the discharg e of their duties shall not be considered as
periods or residence.
S:BX;TION 16. Privileges and immunities are accorded
to the representatives of members, not for the personal
benefit o.f the individuals themselves, but in order to safe
guard the independent exercise or their functions in connex
ion with the specialized agencies. Consequently, a member
not only has the right but is under a duty to waive the
immunity of its representatives in any case where, in the
opinion of the member, the immunity would impede the course
of justice, and where it can be waived without prejudice
to the purpose for which the immunity is accorded.
SEXJTION 17. The provisions of sections 13, 14 arrl 15
are not applicable in relation to the authorities of a State
of which the person is a national or of which he is or has
been a representative.
A R TTCLE VI
Of.ficials
SECTION 18. ·Each specialized agency will specify the
categories of officials to which the provisions of' this
article and or article VIII shall apply. It shall communi
cate them to the Governments of all States parties to this
Convention in respect of that agency and to the Secretary
General of the United Nations. The names of the officials
366
included in these categories shall from time to tim be
made known to the above-mentioned Governments.
SEX;TION 19. Officials of the specialized agencies
shall:
(a) Be immune from legal process in respec t of words
spoken or written and all acts performed by them in their
official capacity;
{b) Enjoy the same exemptions from taxation in
respect of the salaries and emoluments paid to them by the
specialized agencies and on the same conditions as are
enjoyed by officials of the United Nations;
(c) Be immune, together with their spouses and rela
tives dependent on them, from immigration restrictions and
alien registration;
(d) Be accorded the same privileges in respect of
exchange facilities as are accorded to officials of com
parable rank of diplomatic missions;
(e) Be given, together with their spouses and rela
tives dependent on them, the same repatriation facilities
in times of international crises as officials of comparable
rank of diplomatic missions;
(f} Have the right to import f ree of duty their
furniture and effects at the time of first taking up their
post in the country in question.
smTION 20. The officials of the specialized agencies
shall be exempt from national service obli ations, provided
that, in relation to the States of which they ar e nationals,
such exemption shall be confined to officials of the spe
cialized a gencies whose names have, by reaso11 of their
duties, been placed upon a list compiled by the executive
head of the specialized a ency and approved by the qtate
concerned.
Should other officials of specialized a gencies be
called up for national service, the State concerned shall,
at the request of the specialized a gency concerned, grant
such temporary deferments in the call-up of such officials
as may be necessary to avoid interruption int he continua
tion of essential work.
S11CTION 21. In addition to the immunities and p~ivi
leges specified in sections 19 and 20, the executive head
of each specialized a genc·y, including any official acting
on his behalf during his absence from duty, shall be
accorded in respect of himself, his spouse and minor chil
dren, the privileges and immunities, exemptions and facili
ties accorded to diplomatic envoys, in accordance with
international law.
367
SECTION 22. Privileges and immunities are granted to
officials in the interests of the specialized agencies
only and not for the personal benefit of the individuals
themselves. Each specialized a gency shall have the right
and the duty to waive the immunity of any official in any
case where, in its opinion, the immunity would impede the
course of justice and can be waived without prejudice to
the interests of the specialized a ency.
SECTION 23. Each specialized a ~ency shall co-operate
at all times with 'the appropriate authorities of member
States to facilitate the proper administration of justice,
secure the observance of police regulations and prevent
the occurrence of any abuses in connection with the privi
leges, immunities and facilities mentioned in this article.
ARTICLE VII
Abuses of Privilege
SECTION 24. If any State party to this Convention
considers that there has been an abuse of a privilege or
immunity conferred by this Convention, consultations shall
be held between that State and the specialized a gency con
cerned to determine whether any such abuse has occurred
and, if so, to attempt to ensure that no repetition occurs.
If such consultations fail to achieve a result satisfactory
to the State and the specialized agency concerned, the
question whether an abuse of a privilege or immunity has
occurred shall be submitted to the International Court of
Justice in accordance with section 32. If the Interna
tional Court of Justice finds that such an abuse has
occurred, the State party to this Convention affected by
such abuse shall have the right, after notification to the
specialized in question, to withhold from the specialized
agency concerned the benefits of the privilege or immunity
so abused.
s:mTION 25. 1. Representatives of members at meetings .
convened by specialized a encies, while exercising their
functions and durin their journeys to and from the place
of meetin, and officials within the meaning of Section 18,
shall not be required by the territorial authorities to
leave the country in which they are performing their func
tions on account of any activities by them in their offi
cial capacity. In the case, however, of abuse of privileges
of residence committed by any such person in activities in
that country outside his official functions, he may be
required to leave by the Government of that country pro
vided that:
368
2. (I) Representatives of members, or persons who are
entitled to diplomatic immunity under section 21, shall not
be required to leave the country otherwise than in accord
ance with the diplomatic procedure applicable to diplomatic
envoys accredited to that country.
(II) In the case of an official to whom section 21 is
not applicable, no order to leave the country shall be
issued other than with the approval of the Foreign Ministry
of the country in question, and such approval shall be
given only after consultation with the executive head of
the specialized agency concerned; and, if expulsion pro
ceedings are taken against an official, the executive head
of the specialized agency shall have the right to appear in
such proceedings on behalf of the person against whom they
are instituted.
ARTICLE VIII
Laissez-Passer
SECTION 26. Officials of the specialized agencies
shall be entitled to use the United Nations laissez-passer
in conformity with administrative arrangements to be con
cluded betweer1 the Secretary-General of the United Nations
and the competent authorities of the specialized agencies,
to which agencies special powers to issue laissez-passer
may be delegated. The Secretary-General of the United
Nations shall notify each State party to this Convention
of each administrative arrangement so concluded.
SIDTION 27. States parties to this Convention shall
recognize and accept the United Nations Laissez-passer
issued to officials of the specialized agencies as valid
travel documents.
SECTION 28. Applications for visas, where required,
from officials of specialized agencies holding United
Nations laissez-passer, when accompanied by a certificate
that they are travelling on the business of a specialized
agency, shall be dealt with as speedily as possible. In
addition, such persons sh.all be granted facilities for
speedy travel.
SECTTON 29. Similar facilities to those specified
in section 28 shall be accorded to experts arid other per
sons who, though not the holders of United Nations laissez
passer, have a certificate that they are travelling on the
business of a specialized agency.
369
SEDTION 30 . The executive heads , assistant executive
heads, neads of departments and other officials of a rank
not lower than head of department of the special zed agen
cies, travelling on United Nations laissez-passer on the
business or the specialized agencies , shall be granted the
same facilities for travel as are accorded to officials of
comparable rank in diplomatic missions .
ARTICLE IX
Settlement of Dispute~
SEDTION 31. Each specialized agency shall make provi
sion for appropriate modes of settlement of:
(a) Disputes arising out or contracts or other dis
putes of private character to which the specialized agency
is a party;
(b) Disputes involvin any official of a special zed
agenc who by reason of his official position enjoys
immunity, if immunity has not been waived in accordance
with the provisions of section 22.
SECTION 32. All differences arising out of the inter
pretation or application cf the pres)nt Conv9ntion shall
be referred to the International Court of Justice unless
in any case it is agreed by the parties to have recourse
to another mode of settlement . If ad fference arises
between one of the sryecialized a encies on the one hand ,
and a member on the other hand , a request shall be made for
an advisory opini on on any legal question involved in
accordance with Article 96 of the Charter and Article 65
of the Statute of the Court and the relevant provisions of
the agreements concluded between the United Nations and the
specialized agency concerne . The opinion given by the
Court shall be accepted as decisive by the parties .
ARTICLE X
Annexes and A licat on to Individual S ecialized A encies
SEX:!TION 33. n their application to each specialized
agency, the standard clause shall operate subject to any
modificati n set forth in the final (or revised) text of
the annex relatin to that agency, as provided in sections
36 and 38.
370
S:BX;TION 34. The provisions of the Convention in rela
tion to any specialized a ency must be interpreted in the
light of the functions with which that agency is entrusted
by its constitutional iI1s trurnent.
SEnTION 35. Draft annexes 1 to 9 are recommended to
the specialized a gencies named therein. In the case of any
specialized agency not mentioned by name in section 1, the
Secretary-General of the United Nations shall transmit to
the agency a draft annex recommended by the Economic and
Social Council.
SECTION 36. The final text of each annex shall be
that approved by the specialized a gency in question in
accordance with its constitutional procedure. A copy of
the annex as approved by each specialized agency shall be
transmitted by the agency in question to the Secretary
General of the United Nations and shall thereupon replace
the draft referred to in section 35.
SJIDTION 37. The present Convention becomes applicable
to each specialized a gency when it has transmitted to the
Secretary-General of the United Nations the final text of
the relevant annex and has informed him that it accepts
the standard cla- uses, as modified by this annex, and under
takes to ive effect to sections 8, 18, 22, 23, 24, 31, 32,
42 and 45 (subject to any modification of section 32 which
may be found necessary in order to make the final text or
the annex consonant with the constitutional instrument of
the agency) and any provisions of the annex placing obliga
tions on the agency. The Secretary-General shall communi
cate to all Members of the United Nations and to other
States members of the specialized agencies certified copies
of all annexes transmitted to him under tbL is section and
of revised annexes transmitted under section 38.
S:EDTION 38. If, after the transmission of a final
annex under section 36, any specialized agency approves any
amendments thereto in accordance with its constitutional
procedu.re, a revised annex shall be transmitted by it to
the Secretary-General of the United Nations.
SEDTION 39. The provisions of this Convention shall
in no way limit or prejudice the privileges and immunities
which have been, or may hereafter be, accorded by any State
to an-y· specialized agency b y reason of the location in the
territory or that State of its headquarters or regional
offices. This Convention sha11 not be deemed to prevent
the conclusion between any State party thereto and any
spec alized agency of supplemental agreements adjusting
371
the provisions of this Convention or extending or curt ail ing the privileges and immunities thereby g~anted.
SEXJTIO 40. It is understood that the standard clauses
as modified by the final text of an annex sent by a special~
ized agency to the Secretary-General of the United Nations
under section 36 (or any revised annex sent under section
38) , will be consistent with the provisions of the consti tutional instrument then in force of the a gency in ques tion, and that if any amendment to that instrument is necm sary for the purpose of making the constitutional instru ment so consistent , ~uch amendment will have been brought
into force in accordance with the constitutional procedure
of that agency before the final (or revised) annex is
transm.i tted.
The Convention shall not itself operate so as to
abrogate , or derogate f~om, any provisions of the constitu tional ·nstrument of any specialized agency or any rights
or obligations which the agency may otherwise have ~ acquire,
or assume.
ARTICLE XI
Final Provi3io s
---------
S:EUTION 41. Accession to this Convention b¥ a Member
of the United atio11s and (subject to section 42) by any
State me· m . ber of a specialized a ency shall be effected by
deposit Nith the Secretary-General of the United Nations of
an instrt1ment of accession which shall take effect on the
date of its deposit.
SEXJ'J~ION 42. Eacl1 specialized agency concerned shall
communicate, the text of thi Convention together with the
relevant annexes to those of its members which are not
!embers of the United Nations and shall invite them to
accede thereto in respect of that agency by depositing an
instrument of accession to this Convention in respect
thereof either with the Secretary- General of the United
Nations or with the executive head of the specialized
agency.
Each State party to this Convention shall indicate in
its instrument of accession the specialized agency or
agencies :tn respect of whicl1 it undertakes to apply the
provisions of this Conv ntion. Each tate party to this
convention may by a subsequent written notifice.tion to the
Secretary-General of the United Nations undertake to apply
the provisions of this Convention to one or more further
spec alized agencies . This notification shall take effect
on the ate of its recei•t by the Seer tary-General .
372
S~TION 44. This Convention shall enter into force
for each State party to this Convention in respect of a
specialized agency when it has become applicable to that
agency in accordance with section 37 and the State party
has undertaken to apply the provisions of the Convention
to that agency in accordance with section 43•
SECTION 45. The Secretary-General of the United
Nations shall inform all Members of the United Nations, as
well as all members of the specialized a gencies, and execu
tive heads of the specialized agencies, of the deposit of
each instrument of accession received under section 41 and
of subsequent notifications received under section 43. The
executiwe head of a specialized agency shall inform the
Secretary-General of the United Nations and the members of
the a ency concerned of the deposit of any instrument of
accession deposited with him under section 42.
SEXJTION 46. It is understood 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 ovJn law to give effect to the terms of thi.s Conver.a.tion,
as modified by the final texts of any annexes relating to
the agencies covered by such accessions or notifications.
SECT ON 47• 1. Subject to the provisions of paragraph
2 and 3 of this section, each State party to this Conven
tion undertakes to apply this Convention in respect of each
specialized agency covered by its accession or subsequent
notification, until such time as a revised convention or
annex shall have become applicable to that agency and the
said State sha11 have accepted the revised convention or
annex. In the case of a revised annex, the acceptance of
States shall be by a notification addressed to the Secre
tary-General of the United Nations, which shall take effect
on the date of its receipt by the Secretary-General.
2. Each State party to this Convention, however,
which is not, or has ceased to be, a member of a specialized
agency, may address a written notification to the Secreta:cy-
eneral of the United Nations and the executive head of
the a ency concerned to the effect that it intends to with
hold from that agency the benefits of this Convention as
from a specified date, which shall not be earlier than
three months from the date of receipt of the notification.
3. Each State party to this Convention may withhold
the benefit of this Convention from any specialized agency
which ceases to be in relationship with the United Nations.
4. The Secretary-General of the United Nations shall
inform all member State parties to this Convention of any
notification transmitted to him under the provisions of
this sectior1.
373
S TION 48. At the request of one-third of the States
parties to this Convention, the Secretary-General of the
United Nations will convene a conference with a view to its
revision.
S:EnTION 49. The Secretary-General of the United
Nations shall transmit copies of this Conventi on to each
specialized agency and to the Government of each Member of
the United Nations .
ANNEXES OF THE PROPOSED CONVENTION ON THE PRIVILEGES AND
Il-1MUNITIES OF THE SPmIALIZED AGENCIES
ANNE I
The International Labour Organization
The standard clauses shall operate in respect to the
International Labour Organization subject to the following
provision:
The provisions of Article V (other than paragraph (c)
of section 13) and of section 25, paragraphs 1 and 2 (I) of
Article VII shall extend to the employers' and workers•
members of the Governing Body of the International Labour
Office and their alternates and advisers, except that any
waiver of the immunity of any such person member under
Section 16 shall be by the Governing Body.
ANNEX II
The Food and Agriculture Organization of the United Nations
The standard clauses shall operate in respect to the
Food and Ag~iculture Organization of the United Nations
(hereinafter called "the Organization") subject to the
following provisions:
1. Article V and section 25, paragraphs 1 and 2 (I)
of Article VII shall extend to the Chairman of the Council
of the Organization, except that any waiver of the immunity
of the Chairman under section 16 shall be by the Council
of the Organization.
2. (1) Experts (other than officials comin within
the scope of Article VT) serving on committees of, or per
forming missions for, the Organization shall be accorded
the following privile es and immunities so far as is neces
sary for the effective exercise of their functions , includ
ing the time spent on journeys in connexion with service on
such committees or missions:
374
(a) Immunity from personal arrest or seizure of their
personal baggage;
(b) Immunity fro m legal process of every kind in
r espect of words spoken or written or acts done by them in
th e performance of their official functions, such immunity
to continue notwithstanding that the persons concerned are
no longer serving on committees or, or employed on m1s · sions
ror, the Organization;
(c) The same racilities in respect of currency and
exchange restrictions and in respect or their personal
bagga g e as are accorded to officials of foreign Governments
on temporary official missions.
(ii) Privileges and immunities are granted to the
experts in the interests of the Organization and not for
the pers onal benefit of the individuals themselves. The
O r ganizati on shall have the right and the duty to.waive the
immunity of any expert in any case where in its opinion the
i mmunity would :tmpede the course of justice and can be
waived without prejudice to the interests of the Organiza
tion.
AN NEX III
The I nternational Civil Aviation Organization
The starrlard clauses shall operate in res pect to the
International Civil Aviation Organization (hereinafter
cal l ed "the Organization'') subject to the following provi-
sions : .
1. The privileges, immunities, exemptions and facili
ti es referred to in section 21 of the standard clauses
shall also be accorded to the President of the Council of
the Organization.
2. (i) Experts (other than officials coming within
the s cop e of Article VI) serving on committees of, or
p er f orming missions for, the Organization shall be accorded
the following privileges and immunities so far as is neces
sary for the effective exercise of their functions, in
cluding the time spent on journeys in connexion with
service on such committees or missions:
(a) Immunity from personal arrest or seizure of their
p rsonal baggage;
(b ) Immunity from legal process of every kind in
respect of words spoken or written or acts done by them in
the perrormance of their official functions, such immunity
to continue notwithstandj_ n that the persons concerned are
no longer ser vin on committees of, or employed on m i ssions
375
for, the Organization;
(c) The same faciliti es in respect of currency and
exchange restrictions arrl in respect of their personal
baggage as are accorded to officials of foreign Governments
on temporary official m ssions;
(d) Inviolability of their papers and documents relat
ing tu the work on which they are engaged for the Organiza
tion.
(ii) In connexion with (d) of 2 above, the principle
contained in the last sentence of section 12 of the standard
clauses shall be applicable.
(iii) Privileges and immunities are granted to the
experts of the Organization in the interests or the Organ
ization and not for the personal benefit of the ind·viduals
themselves. The Organization shall have the right and the
duty to waive the immunity of any expert in any case where
in its opinion the immunity would impede the course of
justice, and it can be waived without prejudice to the
interests of' the Organization.
ANNEX IV
The United Nations Educational, Scientific and
~ultural Organization
The standard clauses shall operate in respect to the
United Nations Educational, Scientific and Cultural Organ
ization (hereinafter called "the Organization") subject to
the following provisions:
I. Article V and section 25, paragraphs 1 and 2 (I}
of Article V I shall exten to the President o the Con
ference and member of the Executive Board of the Organ
ization, their substitutes and advisers except that any
waiver of immunity of any such person of the Executive
Board under section 16 shall be by the Executive Board.
2. (i) Experts (other than officials coming with n the
scope of Article VI) serving on committees of, or perform
ing missio11s for , the Or anization shall be accorded the
following privileges and immunities so far as is necessary
for the effective exercise of their functions, including
the time spent on jou nays in connexion with service or
such committees or mis si ons :
(a) Immunity from personal arrest or seizure of their
personal bagga e;
(b) In respect of words spoken or written or acts
done by them in the performance of their official functiom,
376
for, the Organization;
(c} The same facilities in respect of currency and
exchange restrictions and in respect of their personal
baggage as are accorded to officials of foreign Govern
ments on temporary official mission~.
(ii) Privileges and immunities are granted to the
exper ts of the Organization in the interests of the Organ
ization and not for the personal benefit of the individuals
t hemselves. The Organization shall heve the right and
duty to waive the immunity of any expert in any case where
in its opinion the immunity would impede the course of
justice, and it can be waived without prejudice to the
inter ests of the Organization.
A NEX V
The I nternational Monetary Fund
I n their applic tion to the International Monetary
und (hereinafter called "the Fund"), the standard clauses
shall operate subject to the following provisions:
1. The following shall be substituted for section 9:
"(a) The Fund, its assets, property, income and its
operations and transactions authorized by its articles of
agreement shall be immune from all taxation and from all
cus toms duties. The Fund shall be immune from prohibitions
and restrictions on imports and exports in respect of
articles imported or exported for i ts official use and in .
respect of its publications. It is understood, however,
that the Fund will not claim exemption from taxes which
are, in fact, no more than charges for public utility
services, and tnat articles (other than its publications)
imported under this exemption will not be sold in the
country into whic h they were imported except under condi
t i ons . agreed to with the Government of that country. The
Fund shall al s o be imm.u.ne from the collection or payment
of an 7, tax or duty.
'(b) No taxation of any kind shall be levied on any
obli gation or security issued by the Fund, including any
dividend or interest thereon, by whomesoever held:
"(i) W hich discriminates against such obli gation or
secur i ty solely because of its origin; or
"(ii) If the sole jurisdictional basis for each taxa
tion is the place or currency in which it is issued, made
payable or paid, or the loc ation of any office or place
of business maintained by the Fund.
11
2. action 32 of the standard clauses shall only
377
apply to differences arising out of the interpretation or
application of priv·leges and immunities which are derived
by the Fund from this Convention and are not included in
those which it can claim under its articles or otherwise.
ANNEX VI
The International Bank for Reconstruetion and Develo ment
In their application to the International Bank for
Reconstruction and Development (hereinafter called "the
Bank"), the standard clauses shall operate subject to the
following provisions:
1. The following shall be substituted for section 4:
"Actions m.ay 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 0£
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."
2. The rollowin shall be substituted for section 9:
"(a) The Bank., its assets, property, income and its
operations and transactions authorized by its articles of
agreement shall be immune from all taxation anJ from all
customs duties. The Bank shall be immune from prohibitions
and restrictions on imports artl exports in respect of
articles imported or exported for its official use and in
respect of its publications. It is understood, however,
that the Bank will not claim exemption from taxes which
are, in fact, no more the.n charges for public utility
services, and that articles (other than its publications)
imported under this exemption will not be sold in the
country into which they were imported except under condi
tions agreed to with the Government of that country.
"The B ank shall also be immune from the collection
or payment of any tax or duty.
"(b) No taxation of any kind shall be levied on any
obligation or security issued by the Bank {including any
dividend or interest thereon) by whomsoever held:
"(i) lAJ'hich discriminates a ain~t such obligation or
security solel·y because it is issued by the Bank; or
378
"(ii) I f the sole jurisdictional basis for such taxa tion is the place or currency in which i t is issued, made
payable or paid, or the location of any office or pl ace of
business maintained by the Bank.
"(c) No taxation of any kind shall be levied on any
obli ation or security guaranteed by the Bank (including
a ny dividend or interest thereon) by whomsoever held:
"(i) hich discriminates against such obligation or
security solely because it is guaranteed by the Bank; or
" (ii) If the sole jurisdictional basis for such t axa t i on i s the location of any office or place of busines s
maintained by the Bank."
3• Section 32 of the standard clauses shall only
ap~ly to differences arising out of the interpretati on or
a pl i cation of privileges and immunities which are derived
by t he Bank from this Conventi on and are not included in
those which it can claim under i ts articles or otherwise.
A N NEX V I I
The World Health Organization
rn their application to the W orld Health Or anization
(here i nafter called "the Or ani zation"), the standard
clauses shall oper ate subject to the followin modifi ca
tions :
1. Article V and secti on 25 , paragraphs 1 and 2 (I}
of Arti cle VII shall extend to persons desi gnated to serve
on the executiv board of the Organization, their alter nates and advisers, except that any waiver of the immunity
of any such persons under section 16 shall be by the Board.
2. (i) Experts (other than officials coming withi n the
scope of Artic::e VI) serving on committees of , or per forming
missi ons for, the Organization shall be accorded the follow
ing privileges and irrummities so far as is necessary f or
the ef'fective exercise of their functions , includi ng t he
time spent o. n journeys in connexion with service on such
committees or missions:
(a) Immunity from persor1al arrest or seizure of their
personal baggage;
(b) Immunity of legal process of every kind, in
respect of words spoken or written or acts done by them in
the performance of t heir official functions , suc h i mmunity
to cont inue notwithstanding that the persons concerned are
no l ong er serving on committees of, or employed on missions
for , t he Or anizat ion;
(c) The same fa cilities in respect of currency and
379
exchange restrictions, and in respect of their personal
ba gage, as are accorded to officials of foreign govern
ments on temporary official missions:
(ii) Privileges and immunities are granted to the
experts of the Organization in the interests of the Organ
ization and not for the personal benefit of the individuals
themselves. The Organization shall have the right and the
duty to waive the immunity of any expert in any case where
i1 its opinion the immunity would impede the course of
justice and can be waived without prejudice to the inter
ests of the Organization.
ANNEX VIII
The Universal Postal Union
The standard clauses shall apply without modification.
ANNEX IX.
The International Telecommunications Union
The standard clauses shall apply without modification.
I

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Asset Metadata

Creator Al-Kadhim, Nouri Mahmoud (author)

Core Title Privileges and immunities of international organizations and their personnel

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science

Degree Conferral Date 1958-06

Publication Date 08/09/1957

Defense Date 08/09/1957

Publisher Los Angeles, California (original), University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest

Format theses (aat)

Language English

Contributor Digitized from microfilm by the USC Digital Library in 2023 (provenance)

Advisor Harley, John Eugene (committee chair), Hadley, Paul E. (committee member), Noonan, F. G. (committee member), Rodee, Carlton Clymer (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-oUC113174007

Unique identifier UC113174007

Identifier Ph. D Po '58 A415 (call number),etd-AlKadhimNouri-1957.pdf (filename)

Legacy Identifier etd-AlKadhimNouri-1957

Document Type Dissertation

Format theses (aat)

Rights Al-Kadhim, Nouri Mahmoud

Internet Media Type application/pdf

Type texts

Source 20230616-usctheses-microfilm-box8 (batch), University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

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