INTERNATIONAL PRIVILEGES AND IMMUNITIES

INTERNATIONAL PRIVILEGES AND IMMUNITIES

A CASE FOR A UNIVERSAL STATUTE

by

DAVID B. MICHAELS

• MARTINUS NIJHOFF I THE HAGUE 1197 1

ISBN 978-94-011-8493-9 ISBN 978-94-011-9220-0 (eBook) DOl 10.10071978-94-011-9220-0

© 1971 by Martinus Nijhojf, The Hague, Netherlands All rights reserved, including the right to translate or to

reproduce this book or parts thereof in any form

To Beverly and Lisa

TABLE OF CONTENTS

DEDICATION

FOREWORD

PREFACE

ABBREVIATIONS

INTRODUCTION

I.

PART I

CONCEPTUAL FRAMEWORK

EVOLUTIONARY PERSPECTIVES

The Ancient Basis of Privileges and Immunities Emergence of the International Functionary The Position of the International Functionary International Privileges and Immunities The Utility of International Privileges and Immunities

II. THEORETICAL ANALYSIS OF INTERNATIONAL PRIVILEGES AND IM­

MUNITIES

Legal Bases Nineteenth Century Precedents The Hague Tribunals The League of Nations International Privileges and Immunities Theory

V

XI

xv

XIX

7

7 II

16 20

25

30

30 32 39 41 47

VIII

III.

IV.

V.

VI.

T ABLE OF CONTENTS

PART II.

ORGANIZATIONAL PRACTICE-THE UNITED NATIONS SYSTEM

COMPOSITION AND DEVELOPMENT

The Preparatory Commission of the United Nations The Legacy of the League Preparatory Commission's Recommendations

CONSTITUTIONAL BASES

The Charter of the United Nations The Specialized Agencies Convention on the Privileges and Immunities of the United Nations Convention on the Privileges and Immunities of the Specialized Agencies

HOST NATION AGREEMENTS

Headquarters, Regional and Field Offices Seminars, Special Meeting and Conferences

ASSISTANCE AND RELIEF AGREEMENTS

Technical Assistance Agreements United Nations Children's Fund (UNICEF). Operational, Executive and Administrative Personnel Assistance (OPEX) United Nations Development Program (and Special Fund)

PART III.

ORGANIZATIONAL PRACTICE­REGIONAL ORGANIZATIONS

VII. EUROPEAN ORGANIZATIONS

European River Commissions Organization for European Economic Cooperation The Council of Europe Council for Mutual Economic Assistance The European Free Trade Assiciation The European Community Host Nation Agreements

53

S3 SS S6

59

S9 60 67 68

71

72 78

80

86 91 92 93

97

97 99

100 102

104 106 110

T ABLE OF CONTENTS

VIII. NON-EUROPEAN REGIONAL ORGANIZATIONS

The Constitutive Acts The Separate Conventions Host Nation Agreements

PART IV.

JUDICIAL, FINANCIAL AND SECURITY INSTITUTIONS

IX. INTERNATIONAL COURTS OF JUSTICE

Jidicial Privileges and Immunities

X. INTERNATIONAL FINANCIAL INSTITUTIONS

Bankers' Privileges and Immunities Global Institutions Regional Banks

XI. SECURITY AND PEACEKEEPING FORCES

Alliance Organizations United Nations Forces United Nations Observers and Mediators

PART V.

ANALYSIS AND CONCLUSIONS

IX

113

114 116 119

127

129

134

134 135 136

143

144 152 155

XII. COMPOSITE ANALYSIS OF INTERNATIONAL PRACTICE 159

Prerogative Categories of International Personnel 160 The Function of Privileges and Immunities 162

XIII. INTERNATIONAL PRIVILEGES AND IMMUNITIES OF THE FUTURE 165

XIV. CONCLUSIONS 173

APPENDIX I

Partial list of international organizations considered 179

X T ABLE OF CONTENTS

APPENDIX II

Extracts from general conventions on privileges and immunities

APPENDIX III

Summary of practice in the United Nations system

APPENDIX IV

Extracts of documents pertaining to regional practice

SELECTED BIBLIOGRAPHY

INDEX

194

226

235

244

FOREWORD

Since World War I scholars and practitioners alike have addressed themselves to defining and assessing the "new diplomacy," which the British diplomatist Harold Nicolson has branded the "American method." He distinguishes contemporary practice from earlier forms of diplomacy which, in The Evolution of Diplomatic Method (1954), on the basis of historical orientation, he designates the Greek, Roman, Italian, and French "systems" of diplo­macy, in this order. Intensified multilaterial, as differentiated from bilateral, diplomacy - or what Lord Maurice Hankey treats as Diplomacy by Con­ference (1946) - has become one of the principal qualities characterizing twentieth century diplomatic usage.

"Conference diplomacy," in turn, consists of both ad hoc and regularized components. The latter, sometimes designated "parliamentary diplomacy," is essentially a form of institutionalized conferencing permeating the func­tioning of permanent mechanisms called international organizations. Within them member states pursue national and collective interests and espouse national policies, confer and negotiate respecting mutual problems, engage in forensic and often public exposition, and reduce decision making, but usually only ostensibly, to a formalized voting process.

With the establishment of such international agencies, various legal, functional, and procedural matters relating to the effective operation of emergent types of diplomacy and international administration needed rethinking and reform. The attack on such problems often is less than system­atic, and existing practice tends to become the accepted way of life - the de facto situation crystallizing as de jure behavior. Thus it was with the applica­tion of traditional diplomatic privileges and immunities - long based on customary rather than conventional principles of law - to the officials, agents, and staff members of international organizations. That is to say, issues of status, privileges, and immunities of the officers and personnel of international agencies were dealt with independently for each individual or­ganization, and governing rules were borrowed from the pre-existing body of precepts pertaining to the treatment of the diplomatic and consular agents of national governments.

XII FOREWORD

During the past half century the community of international organizations proliferated extensively, expanding into a massive complex of more than five hundred agencies - global and regional, general and specialized, bi­partite and multi-partite, supra-national and confederal, permanent and temporary, peace-making and peace-keeping, policy-deliberating and pro­gram-implementing, and regulatory and adjudicatory. Increase in the num­ber and types of international organizations naturally produced both qualitative and quantitative extensions of their functions and, consequently, of their regular and adjunct officials and staff members. This growth of inter­national personnel into a corps of thousands of individuals with dozens of different ranks and capacities has impelled reconsideration and further re­finement of their juridical treatment. It is to this need, and the manner in which it is being met, that this volume is addressed.

Not too long ago - as represented by Amos S. Hershey's The Essentials of International Public Law and Organization (rev. 1930) - the fields of inter­national law and international organization were intimately related, perhaps because both were deemed to be directed, at least in part, toward stabilizing the external affairs of nations. During recent decades, however, as segments of learning and literary attention, they have been separated, although they still are interrelated in many respects, so that the literature of international law continues to embrace aspects of international organization, and vice versa. This volume also enjoins these fields in that the juridical principles with which it deals constitute an integral element of international law, and the individuals to whom it applies comprise the personnel of international organizations. The resultant body of precepts, termed "international privi­leges and immunities" must be differentiated from "diplomatic privileges and immunities," a distinction well expounded by the author of this volume.

In the process of evolving separate bodies of literature on important political and social institutions, occasionally a forward-looking, systematic chronicle or synthesis is produced which comes to be regarded as a major ground-breaking contribution. Aside from the articulated dreams and grand designs of visionaries and theorists, in the field of international con­ferencing and international organization, one is readily reminded of such ventures as Paul S. Reinsch, Public International Unions (1911), Francis B. Sayre, Experiments in International Administration (1919), Norman L. Hill, International Administration (1931), Vladimir D. Pastuhov, A Guide to the Practice of International Conferences (1945), and Egon F. Ranshofen-Wert­heimer, The International Secretariat: A Great Experiment in International Administration (1945). Inasmuch as this review of international privileges and immunities similarly addresses itself to an emergent development of

FOREWORD XIII

significance, and does so in an organized and comprehensive fashion, it may be said to join such ground-breaking contributions.

A separate and fairly extensive literature has been produced on the cus­tomary privileges and immunities of regular diplomats and consuls. In more recent times, this is represented, in the English language, by such monographs as Irvin Stewart's Consular Privileges and Immunities (1926), Montell Ogdon's Juridical Bases of Diplomatic Immunity (1936), Henry Reiff's Diplomatic and Consular Privileges, Immunities and Practice (1954), Jan Louis Frederick van Essen's Immunities in International Law (1955), Joseph M. Sweeney's The International Law of Sovereign Immunity (1963), and Clifton E. Wilson's Diplomatic Privileges and Immunities (1967) - to mention only a few.

On the other hand, the matter of the privileges and immunities of the officers, agents, and other personnel of international organizations and re­lated institutions, and their differentiation from those of traditional diplo­mats, has only recently been broached in an occasional professional journal article, and touched upon briefly in a few basic international law texts, such as those of Herbert W. Briggs, Charles G. Fenwick, H. B. Jacobini, Gerard J. Mangone, and Oscar Svarlien. Although this subject also is generally dealt with in a number of recent monographic studies - such as Martin Hill, Immunities and Privileges of International Officials (1947), John Kerry King, The Privileges and Immunities of the Personnel of International Organizations (1949), Carol M. Crosswell, Protection of International Personnel Abroad (1952), and C. Wilfred Jenks, International Immunities (1961) - these tend to be functionally delimited, in some cases dealing largely, if not entirely, with the United Nations. The need for an inclusive, structured, and pene­trating examination of the overall subject, therefore, is clear and urgent -an exigency which this analysis seeks to satisfy.

This volume serves to describe and scrutinize the pragmatic development, nature, and problems of those legal and socio-political precepts that are essential to the effective performance of the officials, agents, and staff members of international organizations. It draws upon pertinent elements of history, diplomacy, international institutionalization, municipal practice, and especially treaty law, and fuses them in a comprehensive survey of both what is and what, in the author's judgment, ought to be. It employs the conceptualistic, empirical, and normative approaches in the treatment of the subject. It avoids the pitfall of simply quantifying the details of current procedure, as embodied in hundreds of treaty stipulations - a process which may have simplified the author's task at the cost of ignoring the forward­looking propositions and judgments that may flow, both inductively and deductively, from qualitative reflection.

XIV FOREWORD

Evidencing the embracement of the validity and value of hypothesization and the drawing of logical conclusions, this volume covers a broad spectrum of practice related to some sixty selected and representative international organizations established since the advent of international institutionaliza­tion early in the nineteenth century. These organizations are ordered in a rationalized series of interlocking but distinguishable groupings, ranging from the League and United Nations, through such major regional inter­national organizations as the Council of Europe, the League of Arab States, and the Organization of American States, as well as various groups of financial, arbitral, and other functionally specialized institutions (both global and regional), to such particularized agencies as the Cape Spartel Light Commission and the Central Commission for the Navigation of the Rhine.

To be definitive, a serious study of international privileges and immunities must deal not only with the status and treatment of the more obvious cate­gories of international personnel - the permanent officials and staff members affiliated with the customary secretariats of international organizations and the judges of international tribunals - but also with a host of additional international functionaries, advisers, consultants, technicians, and the like, and distinctions among them in law and practice need to be noted. In addi­tion, differing forms of treatment among varying types of organizations, among more than one hundred countries operating under diverse legal systems, and among nationals and foreigners must be reviewed. The theoret­ical and juridical bases of international privileges and immunities must be identified and compared with those applied to traditional diplomatic privileges and immunities. Finally, in a field in which de facto and de jure arrangements evolve piecemeal rather than by devisement in a systematic and planned way, it is imperative to define and assess both consensus and variance in international usage.

This volume strives to fulfill all of these requirements and, on the basis of the conclusions reached - in order to establish a greater degree of common­ality if not homogeneity of principles and conduct - it presents a design for future treatment and perhaps substantial resolution of the problem. This model treaty specifies minimal though essential substantive and procedural principles to satisfy the requirements not only of international organizations and their personnel, but also of the governments of the countries in which they function.

Elmer Plischke Professor of Government and Politics University of Maryland

PREFACE

The international law dealing with the privileges and immunities of heads of state and their representatives while traveling through or otherwise present in a foreign nation comprises one of the most time-honored areas in relations among states. This set of privileges and immunities, exemptions and facilities, status and prerogatives commonly is referred to as "diplomatic privileges and immunities." In more recent times, with the advent of international organization, new personalities have become active in international affairs who require and have been granted privileges and immunities in the in­terests of the organizations they serve. Aside from the diplomatic represen­tatives of member countries to international institutions, these personalities include officials, staff members, members of international security and peacekeeping forces, international parliamentarians and consultative assemblymen, experts and technicians, advisers and consultants, represen­tatives, mediators, arbitrators, international financiers and judges of inter­national tribunals. The personnel who fill these positions are generally re­ferred to as "international civil servants" or "international functionaries." The privileges and immunities they enjoy are termed "international privileges and immunities" to differentiate them from traditional "diplomatic privileges and immunities" accorded members of diplomatic missions.

International civil servants or functionaries can be classified as "inter­national personnel" i.e., personnel of international organizations who are not locally recruited and assigned to hourly rates, and "supra-national per­sonnel" who are the functionaries and other personnel of the European Communities. Therefore, it may be said that an "international person" is an international civil servant of an international organization who is entitled to international privileges and immunities much as a "diplomatic person" (the diplomat or diplomatist) is a member of diplomatic mission entitled to diplomatic status. While the essential elements of both diplomatic and international privileges and immunities have common criteria, the former

XVI PREFACE

has been more institutionalized in the course of history. Moreover, diplo­matic status conveys certain prestige and prerogatives in international society not yet fully developed for international personnel. The basic intent of diplomatic and international privileges and immunities differ. Diplo­matic protection is intended to free a national representative from the territorial jurisdiction of the state to which he is accredited, through which he passes, or in which he negotiates. International protection, on the other hand, is intended to free the international organization, vis a vis its personnel, from the jurisdiction of anyone of its members or third countries, including the individual's home state.

Since international status, privileges and immunities have developed ad hoc and have not been institutionalized in a uniform manner throughout the civilized world, international organizations relying on pre-existing diplomatic privileges and immunities have accorded certain of their senior personnel with diplomatic status. However, general assimilation with diplomatic and national counterparts has not been formalized in the treaties that pertain to international privileges and immunities. Additionally, the general conven­tions on privileges and immunities that have been negotiated by the United Nations and its specialized agencies fail to comprehend the full range of functions and positions attributable to international civil servants.

In the century prior to the establishment of the League of Nations, drafters of international agreements pertaining to the establishment of international organizations attempted to accord the institutions and their personnel with similar provisions for inviolability and exterritoriality enjoyed by members of the nineteenth century diplomatic corps. At the same time, the drafters intended to preserve diplomatic status as an exclusive prerogative of diplo­mats and the sovereigns they represented. Consequently, concepts of neu­trality and exterritoriality emerged which included a set of privileges and immunities reserved for the international civil servants of the nineteenth century. Later, these concepts were defined as diplomatic privileges and immunities.

Subsequent to the founding of the League of Nations following the first World War, both the number of international organizations and their functionaries have multiplied. At the same time, the problems of interna­tional administration and specifically the problems related to the status of both organizations and international personnel have been the cause of active research and experimentation. As of this time, however, the writers on inter­national administration have not emulsified a universal code or convention on the privileges and immunities of the international civil servant. In the absence of a universal convention, both the presence of the international

PREFACE XVII

functionary on national soil and his recruitment from the ranks of national subjects have strained the traditional fiber of concepts of national sovereign­ty.

Learned writers on this subject have treated many facets of its problems and their development. Dr. Josef L. Kunz has studied the historical aspects in detail and no attempt will be made to duplicate his efforts except where clarity or emphasis is indicated.1 Martin Hill, who served with the League of Nations Secretariat for almost two decades, has provided a transitional study exemplifying the experiences of the League in the light of preparations for the establishment of its successor organization, the United Nations. 2

More recently, there have been several studies which relate mainly to the privileges and immunities of the United Nations and its specialized agencies. 3

Several events have taken place since these writings which present oppor­tunities for a new overview of the subject. Since 1964, the United Nations agreements pertaining to international privileges and immunities have made increasing reference to "diplomatic privileges and immunities." In part, reference to diplomatic status can be attributed to the Convention on Diplomatic Relations, which was signed at Vienna on April 18, 1961, came into force on April 24, 1964, and to date has been acceded to by more than a hundred nations. 4 Further, institutionalization of European or "supra­national" privileges and immunities has materialized following the integra­tion of the European Communities in 1965. Subsequently, a draft General Convention on the Privileges and Immunities of the Organization of African Unity was circulated for comment by the members of that organization. Moreover, in the previously cited works, Eastern European attitudes and practice have been neglected.

On the basis of the thesis that privileges and immunities, facilities and exemptions need to be distinguished from prestige, status and prerogatives, international civil servants have been classified into prerogative categories which are presented in Chapter XII. A draft for a general statute on inter-

1 Josef L. Kunz, "Privileges and Immunities of International Organizations," The American Journal of International Law, XLI (October, 1947),828-862; reprinted as Chap. 27 of his The Changing Law of Nations (CoIUfllbus: Ohio State Uhiversity Press, 1964), pp. 502-552.

2 Martin Hill, Immunities and Privileges of International Officials (Washington, D.C.: Carnegie Endowment for International Peace, 1947).

3 Carol M. Crosswell, Protection of International Personnel Abroad (New York: Oceana Publications, 1952); Tien-Chen Young, International Civil Service (Brussels: International Institute of Administrative Sciences, 1958); Kuljit Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other Inter­national Organizations (The Hague: Martinus Nijhoff, 1964).

4 United Nations, Secretariat, Multilateral Treaties in Respect of Which the Secretary General Performs Depository Functions (ST/LEG/SER.O/2), as of December 31, 1969.

XVDI PREFACE

national privileges and immunities is suggested in Chapter XIII together with guidelines for the assimilation of general categories of international civil servant to comparable ranks in diplomatic missions. In so doing, two major personnel management requirements may be satisfied: the interna­tional civil servant is afforded the protection and freedom he requires to perform his assigned functions; and, his position is equated to the relative diplomatic and societal strata in which he must function.

The United Nations treaties which were utilized in the development of United Nations technical assistance practice were selected from the first 600

volumes of the United Nations Treaty Series as follows. A table of random numbers was used to select a 30 per cent sample of 200 volumes to which was added a 100 per cent check of the intermittent published volumes subsequent to volume 600. The treaties used in the analysis were gleaned from 120 of the 200 volume sample which represents a full range of United Nations practice from 1946 to 1968, inclusive, as published in the Treaty Series.

The author's interest in international law and organization was first aroused by the late Professor Clyde Eagleton and by Professor Richard N. Swift of New York University. A special debt of gratitude is extended to Professor Elmer Plischke of the University of Maryland who gave gener­ously of his time and talent, whose tireless efforts in the meticulous reading of the entire original manuscript and whose valuable counsel were inspira­tional and rewarding. The comments, assistance and suggestions of others have been sincerely welcomed and appreciated. Finally, the author is in­debted to his wife and daughter for the encouragement and patience that brought this venture to its conclusion.

BANK

C.E.E. CENTO COMECON ECSC EFTA EURATOM FAO FUND

lAEA

ICAO ICJ IDA

IFC

lLO

IMCO IMH

IMS

IRO

lTU

LAFTA

L.N.

NATO OAS OAU OCAS OECD OEBC PCU

ABBREVIATIONS

International Bank for Reconstruction and Development European Economic Community Central Treaty Organization Council for Mutual Economic Assistance European Coal and Steel Community European Free Trade Association European Atomic Energy Community Food and Agriculture Organization International Monetary Fund International Atomic Energy Agency International Civil Aviation Organization International Court of Justice International Development Association International Finance Corporation Inrernational Labor Organization Intergovernmental Maritime Consultative Organization International Military Headquarters International Military Staff International Refugee Organization International Telecommunication Union Latin American Free Trade Association League of Nations North Atlantic Treaty Organization Organization of American States Organization of African Unity Organization of Central American States Organization for Economic Cooperation and Development Organization for European Economic Cooperation Permanent Court ofInternational Justice

xx

SACEUR

SEATO

SHAPE

T.I.A.S.

UAR

UNECA

UNECAFE

UNECLA

UNESCO

UNICEF

UNIDO

UNDP

UNRRA

UNRWAPR

UNSF

UPU

WEU

WHO

WMO

WTO

ABBREVIA TIONS

Supreme Allied Commander, Europe Southeast Asia Treaty Organization Supreme Headquarters, Allied Powers, Europe Treaties and other International Agreements, Series United Arab Republic United Nations Economic Commission for Mrica United Nations Economic Commission for Asia and the Far East United Nations Economic Commission for Latin America United Nations Educational, Scientific and Cultural Organiza­tion United Nations Children's Fund United Nations Industrial Development Organization United Nations Development Program United Nations Relief and Reconstruction Agency United Nations Relief and Works Agency for Palestine Refugees United Nations Special Fund Universal Postal Union Western European Union Wodd Health Organization Wodd Meteorological Organization Warsaw Treaty Organization