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2020 | OriginalPaper | Chapter

8. Membership and Privileges and Immunities

Author : Gerd Droesse

Published in: Membership in International Organizations

Publisher: T.M.C. Asser Press

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Abstract

The chapter shows that privileges and immunities are intrinsically related to membership concepts. In their member countries, privileges and immunities are generally extended to international organizations under their constituent agreements, and under multilateral agreements and/or headquarters agreements and other bilateral agreements. Moreover, there are instances where countries have extended privileges and immunities by way of a unilateral decision or through other arrangements. In certain cases, privileges and immunities may transform, the status of an organization. Privileges and immunities are increasingly viewed critically and there is wide-spread recognition that they do not afford untrammeled freedom for international organizations to conduct themselves as they deem fit. Both international courts and the national courts of organizations’ member countries scrutinize whether international organizations have complied with requirements of due process. In some cases, courts have made such compliance a condition for the grant of privileges and immunities, and it is being discussed whether adopting such an approach is advisable in contractual matters but also in the case of claims based on tort. A serious problem, in particular, for regional organizations and organizations of limited membership, is how to ensure the protection of the organization in non-member countries. In this regard, it is shown that at times it may be advisable for international organizations to renounce to privileges and immunities, limited to the enforcement of international arbitration awards, in those areas where they enjoy absolute immunity of jurisdiction. In doing so, they gain certainty of the law, as they have a better chance of enforcing arbitration awards. Finally, legal regimes applicable to privileges and immunities are fragmented and there is a lacuna in the regulatory framework of privileges and immunities, as there is a widening group of persons who, while contributing in an official capacity to the production of global public goods or the fight against global bads, are not covered by any privileges and immunities. New solutions are needed for the protection to this class of persons.

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previous chapter Changing Concepts of Intergovernmental Organization and International Organization

next chapter Legal Implications of Membership

Oeter 2015, p. 355.

Ibid.

“Reparation for injuries suffered in the service of the United Nations”. Advisory Opinion: ICJ Reports 1949, 174, 183. http://www.icj-cij.org/files/case-related/4/004-19490411-ADV-01-00-EN.pdf.

“Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion”. ICJ Reports 1999, 62. http://www.icj-cij.org/files/case-related/100/100-19990429-ADV-01-00-EN.pdf.

“Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations”, Advisory Opinion, ICJ Reports, 1989, 177. http://www.icj-cij.org/files/case-related/81/081-19891215-ADV-01-00-EN.pdf.

The Constitution of UPU contains no provisions “establishing the legal status of the Union on the territory of member countries”; however, the “Agreement on privileges and immunities of the United Nations” dated 1 July 1946 concluded by the Swiss Federal Council and the Secretary-General of the United Nations is applied by analogy to UPU. See Constitution. General Regulations. Rules of procedure. Legal status of the UPU, by the UPU International Bureau, Commentary, commentaries on D.11. UPU: Berne, 2014. http://www.upu.int/uploads/tx_sbdownloader/actInFourVolumesConstitutionManualEn.pdf.

Cited by Miller 2009, p. 13.

Article 40 of the ILO Constitution provides:

Privileges and immunities:

The International Labour Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

Delegates to the Conference, members of the Governing Body and the Director-General and officials of the Office shall likewise enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

Such privileges and immunities shall be defined in a separate agreement to be prepared by the Organization with a view to its acceptance by the States Members.

For the drafting history of the General Convention, see Miller 2007b, pp. 17–19; Miller 2007a, pp. 180–183; Miller 2009, pp. 16–19.

See Final Article, Section 31 of the General Convention.

As of 5 Oct. 2017, 162 Parties have acceded to the General Convention. See https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-1&chapter=3&lang=en.

For the status of ratification of the UN Charter as at 5 Oct. 2017, please see https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=i-1&chapter=1&lang=en.

The institutional linkage of the UNFCCC secretariat to the United Nations was initially approved by UNFCCC COP decision 14/CP.1, “Institutional linkage of the Convention secretariat to the United Nations” (7 April 1995) and endorsed by United Nations General Assembly resolution 50/115, “Protection of global climate for present and future generations of mankind” (20 Dec. 1995). It was subsequently extended on various occasions. Regarding the terms of the institutional linkage, see UNFCCC. 2005. Continuation of the institutional linkage of the secretariat to the United Nations. Note by the Executive Secretary (FCCC/SBI/2005/15, 30 Aug.). http://unfccc.int/resource/docs/2005/sbi/eng/15.pdf.

The institutional linkage of the UNCCD secretariat to the United Nations was initially approved by General Assembly resolution 52/198 (http://www.un.org/ga/documents/gares52/res52198.htm) and UNCCD COP decision 4/COP.1, and was subsequently extended.

The background is summarized in GCF. 2014. Options for an Institutional Linkage between the United Nations and the Fund. (GCF/B.08/39, 8 Oct. 2014) The UNFCCC COP did not make, as requested by the Board of the Green Climate Fund a recommendation to the UN General Assembly but, taking “note of Green Climate Fund Board decision B.08/24 on the institutional linkage between the United Nations and the Green Climate Fund, [requested] the Board of the Green Climate Fund to continue further deliberations on privileges and immunities, and to report on this matter to the Conference of the Parties at its twenty-first session (Nov.–Dec. 2015)”; Decision 7/CP. 20, “Report of the Green Climate Fund to the Conference of the Parties and guidance to the Green Climate Fund”, para 20. http://unfccc.int/resource/docs/2014/cop20/eng/10a02.pdf#page=14.

Ahluwalia 1964, p. 51.

See Article IX of the IMF Articles of Agreement. https://www.imf.org/external/pubs/ft/aa/.

Article XVI, para 2 of the FAO Constitution provides:

2. Each Member Nation and Associate Member undertakes, insofar as it may be possible under its constitutional procedure, to accord to the Organization all the immunities and facilities which it accords to diplomatic missions, including inviolability of premises and archives, immunity from suit and exemptions from taxation.

In addition, Article VIII, para 4 of the FAO Constitution provides:

4. Each Member Nation and Associate Member undertakes, insofar as it may be possible under its constitutional procedure, to accord to the Director-General and senior staff diplomatic privileges and immunities and to accord to other members of the staff all facilities and immunities accorded to non-diplomatic personnel attached to diplomatic missions or, alternatively, to accord to such other members of the staff the immunities and facilities which may hereafter be accorded to equivalent members of the staffs of other public international organizations.

See Basic Texts of the Food and Agriculture Organization of the United Nations. 2017. Vols. I and II. http://www.fao.org/3/a-mp046e.pdf.

Miller 2007b, p. 14.

CPISA, Article X, Section 33. https://treaties.un.org/doc/Publication/UNTS/Volume%2033/v33.pdf.

CPISA, Article X, Sections 35–38.

See CPISA, Article XI, Section 41; In addition, CPISA, Article XI, Section 42 provides:

Each specialized agency concerned shall communicate the text of this Convention together with the relevant annexes to those of its members which are not Members 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.

As of 25 Nov. 2017, 128 countries have ratified the Specialized Agencies Convention. See https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-2&chapter=3&lang=en.

Burci and Granziera 2015, p. 93.

Agreement Governing the Relationship Between the United Nations and the International Atomic Energy Agency. Article I, para 1. Reproduced in IAEA. 1959. Information Circular. The Texts of the Agency’s Agreements with the United Nations (INFCIRC/11, 30 Oct. 1959). https://www.iaea.org/sites/default/files/publications/documents/infcircs/1959/infcirc11.pdf.

Ibid., Article I, para 2. The Agreement which contains a variety of provisions on cooperation and collaboration with the UN and the respective responsibilities of the UN and IAEA, among which in Article XIX, para under the heading “Administrative rights and facilities” the following:

1. Members of the staff of the Agency shall be entitled, in accordance with such administrative arrangements as may be concluded between the Secretary-General of the United Nations and the Director General of the Agency, to use the United Nations laissez-passer as a valid travel document where such use is recognized by States parties to the Convention on the Privileges and Immunities of the United Nations.

As indicated by Szasz, the following six approaches were investigated:

(a)

To apply the Specialized Agencies Convention to the Agency by amending that instrument;

(b)

To apply the Specialized Agencies Convention to the Agency by means of a resolution of the UN General Assembly (which had originally formulated that instrument), by which the Agency would be defined to be a specialized agency for the purpose of the Convention (as had been done with respect to UNJSPF);

(c)

To apply the Specialized Agencies Convention to the Agency by means of a special multilateral “protocol” to be presented by the Board to the Members of the Agency;

(d)

To apply the Specialized Agencies Convention to the Agency by means of bilateral agreements between the Agency and each Member State;

(e)

To present to the Member States a new agreement formulated by the Board but based as far as possible on the Specialized Agencies Convention;

(f)

To conclude separate bilateral agreements with each Member State. The Secretariat of the Agency originally preferred solution (b), to which it saw no substantial legal obstacle. However, the UN Legal Counsel concluded that the General Assembly had no power at that stage to change the scope of the Convention by an interpretative definition.

Szasz 1970, p. 971.

IAEA Statute. https://www.iaea.org/about/statute#a1-15.

Agreement on the Privileges and Immunities of the International Atomic Energy Agency, http://www.jus.uio.no/english/services/library/treaties/14/14-04/immunities-atomic-agency.xml.

Negotiated Relationship Agreement between the International Criminal Court and the United Nations. http://legal.un.org/ola/media/UN-ICC_Cooperation/UN-ICC%20Relationship%20Agreement.pdf.

See Agreement on the Privileges and Immunities of the International Criminal Court. ICC-ASP/1/3, Adopted by the Assembly of States Parties, First session, New York, 3–10 Sept. 2002. http://www.icc-cpi.int/NR/rdonlyres/23F24FDC-E9C2-4C43-BE19-A19F5DDE8882/140090/Agreement_on_Priv_and_Imm_120704EN.pdf.

See Nilsson 2004, p. 562.

Agreement concerning the relationship between the United Nations and the International Seabed Authority. 14 March 1997. United Nations Treaty Series. No. 1165, Vol. 256, 255–264. https://www.isa.org.jm/sites/default/files/documents/EN/Regs/UN-ISA-Agrmnt.pdf.

Protocol on the Privileges and Immunities of the International Seabed Authority. http://www.isa.org.jm/files/documents/EN/Regs/Protocol-Priv-Imms.pdf.

Agreement between the International Seabed Authority and the Government of Jamaica regarding the Headquarters of the International Seabed Authority. http://www.isa.org.jm/sites/default/files/documents/EN/Regs/HQ-Agrmt.pdf.

Supplementary Agreement between the International Seabed Authority and the Government of Jamaica Regarding the Headquarters of the International Seabed Authority and the Use of the Jamaica Conference Centre Complex. https://www.isa.org.jm/sites/default/files/documents/EN/Regs/ISA-Ja-SuppAg.pdf.

Pursuant to Article VIII, para 34(a) of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention), https://www.opcw.org/fileadmin/OPCW/CWC/CWC_en.pdf, the United Nations and Organization for the Prohibition concluded a relationship agreement that was approved by the OPCW Conference of the States Parties on 17 May 2001 and by the United Nations General Assembly in resolution A/RES/55/283 dated 24 Sept. 2001. https://www.opcw.org/fileadmin/OPCW/LAO/a55r283.pdf. Article IX refers to the right of OPCW officials to “to use the laissez-passer of the United Nations as a valid travel document where such use is recognized by States Parties in the applicable instruments defining the privileges and immunities of OPCW and its officials.” (UN. 2001. Agreement concerning the Relationship between the United Nations and the Organization for the Prohibition of Chemical Weapons. Note by the Secretary-General [18 June, A/55/988], http://www.un.org/documents/ga/docs/55/a55988.pdf). However, the legal basis for the privileges and immunities of OPWC is set out in Article VIII (E) of the Chemical Weapons Convention.

An overview of the legal framework and privileges and immunities of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization is provided In CTBTO preparatory commission for the comprehensive nuclear-test-ban treaty organization. 2012. National Implementation Measures: Legislation, Privileges and Immunities and Facility Agreements. Note by the Executive Secretary (CTBT/PTS/INF. 1204, 21 Sept. 2012). https://www.ctbto.org/fileadmin/user_upload/pdf/Legal_documents/2015/CTBT-PTS-INF1204.pdf.

The legal basis for the privileges and immunities of OPWC is set out in Article VIII (E) of the Chemical Weapons Convention. https://www.opcw.org/chemical-weapons-convention/articles/article-viii-the-organization/#c11980. For details, See Organization for the Prohibition of Chemical Weapon. Privileges and Immunities of the OPCW. https://www.opcw.org/about-opcw/technical-secretariat/privileges-immunities/.

WTO. 1995. “General Council. Arrangements for Effective Cooperation with other Intergovernmental Organizations”. Relations between the WTO and the United Nations. Communication from the Director-General (WT/GC/W/10, 8 Nov. 1995). See also the paper submitted on 12 Feb. 1976 to the Ad Hoc Committee on Restructuring of the Economic and Social Sectors of the United Nations System, titled: “Relations of GATT with the United Nations” (L/4306/Add.1, 14 April) (GATT. 1976. “Relations of GATT with the United Nations”, Ad Hoc Committee on Restructuring of the Economic and Social Sectors of the United Nations System, 5. https://www.wto.org/gatt_docs/English/SULPDF/90920196.pdf.

See GATT. 1976. Ad Hoc Committee on Restructuring of the Economic and Social Sectors of the United Nations System. Addendum. Relations of GATT with United Nations (L/4306/Add. 1, 14 April 1976) which indicates on page 5 under the heading Personnel Arrangements the following: “Under present arrangements members of the GATT staff may use the United Nations laissez-passer as a travel document.” https://www.wto.org/gatt_docs/English/SULPDF/90920196.pdf.

Siegel 2002, p. 563.

Detailed references regarding the agreements between WTO and IMF and IBRD and related documents are contained on the IMF website under “Work with Other International Organizations. The WTO and the International Monetary Fund”. https://www.wto.org/english/thewto_e/coher_e/wto_imf_e.htm.

WTO. 1995. General Council. Arrangements for Effective Cooperation with other Intergovernmental Organizations. Relations between the WTO and the United Nations. Communication from the Director-General (WT/GC/W/10, 8 Nov. 1995).

The 29 Sept. 1995 letter from the Director-General of WTO to the UN Secretary General reads:

The conclusion which we have reached, as a result of these consultations and taking into account the experience in the relations between the United Nations and the GATT, is that a flexible framework for cooperation, liable to further review and adaptation in the light of developments and emerging requirements, is the most desirable course of action.
We agreed, in that light, that the arrangements and practices described in the attached United Nations General Assembly document of 9 March 1976 (A/AC.179/5) in respect of the United Nations/GATT relationship provide a suitable basis to continue to guide relations between the United Nations and the World Trade Organization.

The letter exchange is contained in the Annex of WTO. 1995. “General Council. Arrangements for Effective Cooperation with other Intergovernmental Organizations”. Relations between the WTO and the United Nations. Communication from the Director-General (WT/GC/W/10, 8 Nov. 1995). https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=6887,13692,26254,21280,3316,32374,14512,28305,37959,24645&CurrentCatalogueIdIndex=9&FullTextHash=&HasEnglishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True.

Agreement Establishing the World Trade Organization. https://www.wto.org/english/docs_e/legal_e/04-wto.pdf.

Resolution 70/296 “Agreement concerning the Relationship between the United Nations and the International Organization for Migration” adopted by the General Assembly on 25 July 2019. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/70/296.

Agreement Between the Government of the Republic of Indonesia and the ASEAN Relating to the Privileges and Immunities of the ASEAN Secretariat of 20 Jan. 1979. http://agreement.asean.org/media/download/20140416011141.pdf.

Statute of the International Renewable Energy Agency, Article XIII(B). http://www.irena.org/documents/uploadDocuments/Statute/IRENA_FC_Statute_signed_in_Bonn_26_01_2009_incl_declaration_on_further_authentic_versions.pdf.

IRENA. 2012. Draft Agreement on Privileges and Immunities for the International Renewable Energy Agency. http://www.irena.org/documents/uploadDocuments/4thCouncil/C_4_13_Agreement%20P%20and%20Is.pdf.

IRENA 2013. Decision on an Agreement on Privileges and Immunities for the International Renewable Energy Agency. https://www.irena.org/DocumentDownloads/2013/Assembly/A_3_DC_5_Decision_Privileges%20and%20Immunities.pdf.

OECD. Convention on the Organisation for Economic Co-operation and Development. http://www.oecd.org/general/conventionontheorganisationforeconomicco-operationanddevelop-ment.htm.

http://www.oecd.org/legal/privileges-immunities-agreements.htm.

Global Fund. 2014. Thirty-Second Board Meeting. Privileges and Immunities of the Global Fund. https://www.theglobalfund.org/media/4138/bm32_19-pandis_report_en.pdf.

“Draft Convention on the International Legal Personality, Legal Capacity, and Privileges and Immunities of the OSCE”. In OSCE. 2007. Fifteenth Meeting of the Ministerial Council, 29 and 30 Nov. 2007, Madrid. 65 ss. http://www.osce.org/mc/33180?download=true.

GCF. 2017. Report on the activities of the Secretariat (Doc. GCF/B.17/Inf.01, 21 June 2017), para 54. https://www.greenclimate.fund/documents/20182/751020/GCF_B.17_Inf.01_-_Report_on_the_activities_of_the_Secretariat.pdf/08db0fe2-e40c-44cd-baba-f3d749001ecb.

Mensah 2012, p. 1463.

See Article 16 of the “Agreement between the Swiss Federal Council and the International Labour Organization concerning the legal status of the International Labour Organization in Switzerland”: “The Director of the International Labour Office and officials of the categories designated by him and agreed to by the Swiss Federal Council shall enjoy the privileges, immunities, exemptions and facilities granted to diplomatic agents in accordance with international law and custom.” http://www.ilo.org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/jur/legal-instruments/WCMS_441510/lang%2D%2Den/index.htm.

Headquarters Agreement, Article 13, para 2(b). https://www.greenclimate.fund/documents/20182/56440/Headquarters_Agreement.pdf/13df1525-af90-456b-8d76-5b83be9b39d4.

Article 1 of the “Agreement between the Swiss Federal Council and the Global Fund to Fight AIDS, Tuberculosis and Malaria in view of determining the legal status of the Global Fund in Switzerland”. https://www.theglobalfund.org/media/3393/bm08_07annex4aagreement_annex_en.pdf.

Article 1 of the “Agreement between the Gavi Alliance (Global Alliance for Vaccines and Immunization) and the Swiss Federal Council in order to determine the legal status of the Gavi Alliance in Switzerland” signed in July 2009.

Schmalenbach 2013, p. 453 with further details.

See the “Agreement on the Privileges and Immunities of the Southeast Asian Nations”. http://www.asean.org/storage/images/archive/15thsummit/Agreement-on-Privileges-and-Immu-nities.pdf.

Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines regarding the Headquarters of the Asian Development Bank. http://www.adb.org/sites/default/files/institutional-document/32422/files/adb-phil-agreement.pdf.

ADB regularly concludes a “Technical Assistance Framework Agreement” and “Private Sector Framework Agreement” with those countries where it conducts technical assistance and private-sector operations. Templates of a “Technical Assistance Framework Agreement” and “Private Sector Framework Agreement” are reproduced in ADB 2005, pp. 33–45.

See the templates of ADB’s Technical Assistance Framework Agreement and Private Sector Framework Agreements In ADB 2005, Appendices 10 and 11.

Decision 3/CP.17. Launching the Green Climate Fund. http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=55.

7. In order to operate effectively internationally, the Fund will possess juridical personality and will have such legal capacity as is necessary for the exercise of its functions and the protection of its interests.

8. The Fund will enjoy such privileges and immunities as are necessary for the fulfilment of its purposes. The officials of the Fund will similarly enjoy such privileges and immunities as are necessary for the independent exercise of their official functions in connection with the Fund.

GCF. 2017. “Report on the activities of the Secretariat”. (GCF/B.18/Inf.04., 21 September), para 102. https://www.greenclimate.fund/documents/20182/820027/GCF_B.18_Inf.04_-_Report_on_the_activities_of_the_Secretariat.pdf/09454489-7819-4d80-ac92-8c788b588040.

As shown by Tichy and Köhler 2008, p. 467, one option discussed for transforming the legal status of the OSCE was a: “Model bilateral agreement between the OSCE and mission receiving countries: to be adopted by the appropriate body of the OSCE”.

See “Draft Agreement between the Organization for the Prohibition of Chemical Weapons and [State Party] on the Privileges and Immunities of the OPCW”. https://www.opcw.org/fileadmin/OPCW/LAO/privileges_immunities_agreem/Model_privileges_and_immunities_agreement_en.pdf.

GCF. 2015. Template for the Bilateral Agreement on Privileges and Immunities (GCF/B.09/19, 17 Feb.). https://www.greenclimate.fund/documents/20182/24949/GCF_B.09_19_-_Template_for_the_Bilateral_Agreement_on_Privileges_and_Immunities.pdf/f569da2d-1b35-4958-8a0b-d5d38374825e.

Green Climate Fund. Board Decision B/10.12, Decisions of the Board – Tenth Meeting of the Board, 6–9 July 2015 (GCF/B.10/17, 21 July), 13. https://www.greenclimate.fund/documents/20182/24952/GCF_B.10_17_-_Decisions_of_the_Board_-_Tenth_Meeting_of_the_Board__6–9_July_2015.pdf/1238c5ad-8686-4cf9-a401-aa4893818215.

Tichy and Köhler 2008, pp. 466–467.

Mendaro, Susana v. The World Bank, a/k/a International Bank For Reconstruction And Development, No. 82-2247, United States Court of Appeals for the District of Columbia Circuit. 1983. http://www.leagle.com/decision/19831327717F2d610_11226/MENDARO%20v.%20WORLD%20BANK.

Article VII, Section 3 of the Articles of Agreement of the IBRD reads: “Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.” http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf.

See for that jurisprudence and the jurisprudence of Italian courts, in general: Bonfafè 2015, pp. 246–278.

Ryngaert 2010, p. 125.

See Katkin 2005, p. 12.

See Münch 2006, pp. 71–88. http://www.mpil.de/files/pdf3/mpunyb_03_muenchneuii1.pdf.

Reinisch 2000, p. 28.

“Liang, Jeffrey (Huefeng) versus People of the Philippines”. 28 Jan. 2000. GR No. 125865. http://sc.judiciary.gov.ph/jurisprudence/2000/jan2000/125865.html.

“Jeffrey Liang (Huefeng) versus People of the Philippines”. 26 March 2001. GR No. 125865. http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/125865.htm.

See Lacson 2002, pp. 882–928.

See with further references, Department of Foreign Affairs versus National Labor Relations Commission. G.R. No. 113191. 18 Sept. 1996, http://sc.judiciary.gov.ph/jurisprudence/1996/sept1996/113191.htm.

“Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion”, ICJ Reports 1999, 62–91, 87. http://www.icj-cij.org/files/case-related/100/100-19990429-ADV-01-00-EN.pdf.

Ibid.

In her “Fifth report on immunity of State officials from foreign criminal jurisdiction”, the Special Rapporteur, Concepción Escobar Hernández, states that cases of corruption (involving “embezzlement, diversion and misappropriation of public funds, money-laundering and other manifestations of corruption” cannot be deemed to “involve acts that can be considered as having been carried out in an official capacity. In principle, therefore, there appears to be no need at present to analyse them from the perspective of limitations or exceptions.” Hernández, C. E. 2016. Fifth report on immunity of State officials from foreign criminal jurisdiction, UN General Assembly (Doc. CN.4/701, 14 June), paras 231 and 234.

Ibid., para 234.

See as representative for many, Article 21, para 1 of the Agreement between the Swiss Federal Council and the International Labour Organization concerning the legal status of the International Labour Organization in Switzerland. http://www.ilo.org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/jur/legal-instruments/WCMS_441510/lang%2D%2Den/index.htm.

Agreement between the Swiss Federal Council and the International Labour Organization, Article 21, para 2.

Agreement between the Swiss Federal Council and the International Labour Organization, Article 22.

Ryngaert 2010, p. 130.

Ibid.

de Cooker and Süss 2009, pp. 541–570.

See Barros 2015, p. 349.

See with detailed references, inter alia, Reinisch and Bachmayer 2016, pp. 72–79; Ryngaert 2010, pp. 132–144.

Reinisch 2009, pp. 257–291.

See Judgment No. 2867 of the Administrative Tribunal of the International Labour Organiza-tion upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J. Reports 2012, p. 10. Separate Opinion of Judge Cançado Trindade. http://www.icj-cij.org/files/case-related/146/146-20120201-ADV-01-01-BI.pdf.

100

See as one example para 36.2 of the ADB Charter.

101

Handl 2001, p. 34.

102

Ibid., 35.

103

See Lewis 2014, p. 269, with further references. http://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2014&context=ncilj.

104

Ibid., 270.

105

Ibid., 270.

106

See U.S. Court of Appeals for the Second Circuit in Georges and others v. United Nations, Case 15–455, Doc. 257-2, Decision of 18 Aug. 2016. http://www.ijdh.org/wp-content/uploads/2011/11/2d-Circuit-Decision.pdf.

107

See remarks of Alston, P. reported in the New York Times article of 17 Aug. 2016 by Katz, J.M. “U.N. Admits Role in Cholera Epidemic in Haiti”. http://www.nytimes.com/2016/08/18/world/americas/united-nations-haiti-cholera.html.

108

See article of E.A. Health of 30 Sept. 2016 titled, “UN Secretary General Ban Ki-moon Indicates Compensation Package for Haitian Victims of Cholera Outbreak is Forthcoming”, https://www.asil.org/blogs/un-secretary-general-ban-ki-moon-indicates-compensation-package-haitian-victims-cholera.

109

Faith 2014, pp. 359–375.

110

See the case summary: “Mothers of Srebrenica et al v. State of The Netherlands and the United Nations”. http://www.internationalcrimesdatabase.org/case/769/mothers-of-srebrenica-v-the-netherlands-and-the-un/.

111

Schrijver 2015, pp. 329–341.

112

Ibid., para 129.

113

Cited according to European Court of Human Rights. Application no. 65542/12. “Stichting Mothers of Srebrenica and Others v. The Netherlands”, para 154. http://hudoc.echr.coe.int/eng?i=001-122255.

Ibid., para 127.

Ibid., para 129.

Ibid., para 162.

Ibid., para 164.

Droesse 2017, p. 55.

Cited according to Lewis 2014, pp. 269–270.

120

Article 20 of the “Agreement between the Swiss Federal Council and the Global Fund to Fight AIDS, Tuberculosis and Malaria in view of determining the legal status of the Global Fund in Switzerland” (https://www.theglobalfund.org/media/3375/bm07_07gpcreportannex92_annex_en.pdf?u=636486806830000000) provides that the individuals covered by the provisions of that agreement “shall not enjoy immunity from legal process in the event of civil liability proceedings initiated against them for damages caused in Switzerland by any vehicle belonging to or driven by them, or in the event of offences punishable by fines under federal road traffic regulations.”

Similarly, the “Agreement between the Republic of Korea and the Green Climate Fund concerning the Headquarters of the Green Climate Fund” (https://www.greenclimate.fund/documents/20182/574763/Headquarters_Agreement.pdf/13df1525-af90-456b-8d76-5b83be9b39d4) also provides in Article 13, para 5 that the “persons referred to in this Article shall not enjoy immunity from legal process and execution of judgement in the case of civil liability proceedings initiated against any such person for damages caused in the Republic of Korea by any vehicle belonging to such a person or operated on his/her behalf.”

121

Bares v. Asian Development Bank, ADB Administrative Tribunal Decision No. 5, 31 May 1995. http://www.adb.org/sites/default/files/institutional-document/31489/adbt0005.pdf.

Ibid, para. 10.

Ibid., para 11.

Ibid., para 12.

Ibid., para 14.

Ibid., para 46.

Schrijver 2015, pp. 334–338.

128

See discussion in Wood 2015, pp. 29–60.

129

See Gaja 2006, p. 202. http://legal.un.org/ilc/publications/yearbooks/english/ilc_2006_v2_p2.pdf. Gaja gives on pages 203–205 detailed bibliographic indications.

130

Wood 2015, p. 59.

131

Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: ICJ Reports 1949, 174, 185. http://www.icj-cij.org/files/case-related/4/004-19490411-ADV-01-00-EN.pdf.

132

First report on responsibility of international organizations, by Gaja, G. Doc. A/CN.4/532, 26 March 2003, 105–116, 111. Available at http://legal.un.org/ilc/documentation/english/a_cn4_532.pdf.

133

Droesse 2009, pp. 411–412.

134

Droesse 2011, p. 191.

135

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf.

136

Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Status as at 15 February 2018. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-1&chapter=22&lang=en.

137

Droesse 2011, p. 183.

138

Smyth 2011, p. 529.

139

Ragazzi 2011, p. 489.

140

Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol. 2005. Privileges and Immunities for Individuals serving on Constituted Bodies established under the Kyoto Protocol. Note by the Secretariat. (FCCC/KP/CMP/2005/6, 16 Sept. 2005). http://unfccc.int/resource/docs/2005/cmp1/eng/06.pdf.

Ibid., para 9.

Ibid., para 11.

Ibid.

UNFCCC. 2008. Privileges and immunities for individuals serving on constituted bodies under the Kyoto Protocol: report on the feasibility study on possible insurance for individuals serving on constituted bodies. Technical Paper. FCCC/TP/2008/1 30 May 2008, para 4. http://unfccc.int/resource/docs/2008/tp/01.pdf.

145

Ibid., para 5. See also UNFCCC. 2007. “Privileges and Immunities (for Individuals Serving on Bodies Established by these Organizations: Review of the Legal Regime and Practice of Organizations in the United Nations System”. Technical Paper. (FCCC/TP/2007/2, 30 July). http://unfccc.int/resource/docs/2007/tp/02.pdf.

146

Privileges and immunities for individuals serving on constituted bodies under the Kyoto Protocol: Implementation of decision 9/CMP.2. Note by the secretariat. FCCC/KP/CMP/2007/2, 13 Nov. 2007, 5. https://unfccc.int/resource/docs/2007/cmp3/eng/02.pdf.

147

Ibid., footnote 1.

148

Doc. FCCC/TP/2008/1, paras 9–11.

149

UNFCCC. 2012. Subsidiary Body for Implementation. Report of the Subsidiary Body for Implementation on its 36th session, held in Bonn from 14 to 25 May 2012. Addendum (FCCC/SBI/2012/15/Add.2, 6 July 2012) and UNFCCC. 2012. Subsidiary Body for Implementation. 36th session. Bonn, 14–25 May 2012. Privileges and immunities for individuals serving on constituted bodies established under the Kyoto Protocol, Draft conclusions proposed by the Chair. FCCC/SBI/2012/L.9, 23 May 2012.

150

Privileges and immunities for individuals serving on constituted bodies established under the Kyoto Protocol. Draft conclusions proposed by the Chair. Draft conclusions proposed by the Chair. Subsidiary Body for Implementation Fortieth session Bonn, 4–15 June 2014, FCCC/SBI/2014/L.6, 10 June 2014.

151

http://unfccc.int/resource/docs/2016/sbi/eng/l03.pdf.

152

http://unfccc.int/resource/docs/2016/sbi/eng/l04.pdf.

153

https://unfccc.int/meetings/marrakech_nov_2016/items/9980txt.php.

154

See Michaels 1971.

155

Blokker 2013, p. 275.

156

See Young 2012, pp. 311–364. https://www.law.georgetown.edu/academics/law-journals/gjil/recent/upload/zsx00113000311.PDF.

157

See Michaels 1971.

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Title: Membership and Privileges and Immunities
Author: Gerd Droesse
Publisher: T.M.C. Asser Press
Book: Membership in International Organizations
Print ISBN: 978-94-6265-326-9

Electronic ISBN: 978-94-6265-327-6

Copyright Year: 2020
DOI: https://doi.org/10.1007/978-94-6265-327-6_8

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