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Convention on the Privileges and Immunities of the United Nations
New York, 13 February 1946 Convention on the Privileges and Immunities of the Specialized Agencies New York, 21 November 1947
By August Reinisch
Professor of International Law, University of Vienna
When the United Nations was established it was considered necessary that it should enjoy the status of a legal person under the domestic law of its Member States. Such a domestic legal personality is a prerequisite for international organizations to effectively manage numerous practical needs such as procurement contracts, the acquisition of property and the capacity to pursue its private law rights before national courts. The Charter of the United Nations only very generally responded to these needs by providing in its Article 104 that “[t]he 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 fulfilment of its purposes.” A similar functional concept was adopted with regard to the question of the privileges and immunities that the United Nations should enjoy. Article 105, paragraph 1, provides that “[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.” The principle of “functional” personality as well as of “functional” immunity was thus firmly established in the founding document of the United Nations. However, these abstract rules required some more detailed explanation in order to become workable helping United Nations officials as well as national judges to determine whether the United Nations should be considered capable of entering into a specific legal transaction or immune from a particular lawsuit directed against it. In a similar way, it was unclear to what extent United Nations officials as well as Member State representatives to the United Nations should enjoy privileges and immunities. In Article 105, paragraph 2, the drafters of the Charter of the United Nations again opted for a functional concept when it was stated therein that “[r]epresentatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.” At the time of the adoption of the Charter of the United Nations there were not many legal instruments that could have served as examples for what was intended to be achieved. The Covenant of the League of Nations of 28 June 1919 merely provided for “diplomatic” privileges and immunities of its employees and the inviolability of its property. Only a subsequent agreement with the League’s host State, the so-called modus vivendi, stipulated that the League possessed international personality and capacity and that it could not “in principle, according to the rules of international law, be sued before the Swiss Courts without its consent.” (Communications du Conseil Fédéral Suisse concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail, entered into by the League of Nations and the Swiss Government on 18 September 1926, 7 OJLN (1926), annex 911a, 1422). Thus, the privileges and immunities of international organizations was largely uncharted territory. It was against this background that the Convention on the Privileges and Immunities of the United Nations, frequently referred to as the “General Convention”, was negotiated and adopted in the immediate aftermath of the establishment of the United Nations. As provided for in Article 105, paragraph 3, of the Charter of the United Nations, it was adopted by the General Assembly at its first session on 13 February 1946 (resolution 22 A (I)) on the basis of a draft of the United Nations Preparatory Commission. It entered into force on 17 September 1946 and was registered with the Secretary-General on 14 December 1946. It was one of the first treaties to be published in the United Nations Treaty Series. The General Convention specifies the notion of “functional” personality and immunity of the United Nations and contains detailed provisions on the privileges and immunities enjoyed by United Nations officials and Member State representatives. Because of the high level of precision of the Convention’s articles they are considered directly applicable or self-executing in many national legal systems. That means that national courts may directly rely on them without the need of national implementing legislation. In article I, section 1, the “functional” personality of the United Nations is defined as “juridical personality” encompassing the specific capacity: “(a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to institute legal proceedings.” This provision clarifies that the United Nations should be able to enter into day-to-day operations governed by private law. The Convention’s core provision with regard to immunity from jurisdiction is found in article II, section 2, which runs as follows: “The United Nations, its property and assets wherever located and 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.” The resulting “absolute” immunity from suit of the United Nations has been largely respected in most countries, though some national courts have tried to limit the Organization’s scope of immunity along the initially envisaged “functional” immunity. In practice, this has also sometimes led to the application of restrictive State immunity principles denying immunity for “commercial” activities. The de facto “absolute” immunity of the United Nations is mitigated by the fact that article VIII, section 29, of the Convention requires the United Nations to “make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. The General Convention’s obligation to provide for alternative dispute settlement in case of the Organization’s immunity from legal process can be regarded as an acknowledgment of the right of access to court as contained in all major human rights instruments. Private law contracts entered into by the United Nations regularly contain arbitration clauses. In the case of tort claims, such as those resulting from harm suffered as a result of peacekeeping operations or vehicular accidents, the United Nations usually agrees on similar forms of dispute resolution. Staff disputes within the United Nations are settled by an internal mechanism in the form of the United Nations Administrative Tribunal, established in 1949 (General Assembly resolution 351 A (IV) of 9 December 1949). In 2009, this system will undergo a major reform leading to the establishment of a two-tier judicial system with a United Nations Dispute Tribunal and a United Nations Appeals Tribunal. In addition to immunity from suit, the General Convention provides for the “inviolability” of United Nations premises and property which basically means that they are exempted from any search, requisition, confiscation, or other forms of executive, administrative, judicial or legislative interference. The same inviolability applies to the archives of the United Nations. The most important “privileges” conferred upon the United Nations by the General Convention are fiscal ones. Most significantly, article II, section 7, exempts the United Nations from all direct taxes as well as from customs duties and quotas concerning goods for the United Nations’ official use. With regard to indirect taxes, the Convention merely provides that in case of “important purchases for official use” the State concerned will make appropriate administrative arrangements for tax reimbursement. The General Convention further contains privileges and immunities for three categories of persons crucial for the work of the Organization: 1) representatives of Member States; 2) United Nations officials; and 3) experts on missions for the United Nations. While Member State representatives enjoy modified diplomatic privileges and immunities, United Nations officials, i.e. permanently employed staff members, enjoy “functional” immunity which is defined in article V, section 18 (a), as immunity “from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” Article V, section 20, stresses that “[p]rivileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves” and that the Secretary-General has to waive the immunity of United Nations officials where it would “impede the course of justice and can be waived without prejudice to the interests of the United Nations.” In addition to jurisdictional immunity, United Nations officials are tax exempt with regard to their salary received from the United Nations and enjoy a number of other fiscal, travel and residence privileges. Only the Secretary-General, Under-Secretaries-General and Assistant Secretaries-General enjoy full diplomatic privileges and immunities. As opposed to United Nations officials, experts on missions for the United Nations, like members of the International Law Commission, Special Rapporteurs, or members of United Nations peacekeeping operations, serve under a temporary and specific mandate. They also enjoy certain functionally limited privileges and immunities pursuant to article VI of the General Convention. The General Convention has had a major impact on the development of subsequent treaties dealing with privileges and immunities of international organizations. Already on 21 November 1947, the General Assembly approved the Convention on the Privileges and Immunities of the Specialized Agencies. It entered into force on 2 December 1948 and applies to those United Nations related international organizations that have entered into special relationship agreements with the United Nations pursuant to Article 63 of the Charter, such as the International Civil Aviation Organization, the World Health Organization, the Food and Agriculture Organization, the United Nations Educational, Scientific and Cultural Organization, the International Monetary Fund, the International Bank for Reconstruction and Development, and others. The so-called Special Convention contains roughly the same provisions on privileges and immunities as the General Convention. Examples of similar privileges and immunities treaties are the General Agreement on Privileges and Immunities of the Council of Europe, 1949, and the Agreement on Privileges and Immunities of the Organization of American States, 1949. Numerous “headquarters” or “seat agreements” have also been influenced by the General Convention. This Introductory Note was written in October 2008.
Related Materials
Convention on the Privileges and Immunities of the United Nations At the United Nations Conference on International Organization, held in San Francisco from 25 April to 26 June 1945 (see procedural history of the Charter of the United Nations), the Rapporteur of Technical Committee 2 (Legal Problems) of Commission IV (Judicial Organization) had pointed out that “the possibility is not excluded of a general convention to be submitted to all Members” on the privileges and immunities of the future United Nations Organization (restricted doc. 933 (English) IV/2/42 (2), p. 2). The Executive Committee of the Preparatory Commission (established by the San Francisco Conference to make provisional arrangements for the initiation of the work of the Organization) recommended, in its final report, that the Preparatory Commission refer to the future General Assembly for its consideration a study on privileges and immunities attached to the report (PC/EX/113/Rev.1, Part III, Chapter V, Section 5, p.69 and Appendix in ibid.). The Preparatory Commission remitted this part of the report to its Committee 5 (Legal Committee), which was instructed to “consider and report to the Preparatory Commission on Chapter V of the Report of the Executive Committee and on any proposals or amendments submitted by Delegations on matters falling within the scope of Chapter V” (see Memorandum by the Executive Secretary on the organization of the work of the Second Session of the Preparatory Commission, PC/EX/138/Rev.1, p. 17). Committee 5 held its first meeting on 27 November 1945 (see summary record. PC/LEG/8). On 30 November 1945, the delegation of Canada submitted to Committee 5 a draft resolution concerning the question of immunities, facilities and privileges of the United Nations, of representatives of its Members and of its officials. Under the draft resolution, it was recommended that the General Assembly, at its first session, adopt a convention on this issue “for submission to the Members for ratification” (PC/LEG/17, p. 2). The draft resolution also contained a text entitled “Tentative and Provisional Draft of Convention on the Immunities, Facilities and Privileges of the United Nations[,] of Representatives of its Members and of its Officials”, which indicated that the purposes of the convention were “to determine the details of the application of paragraphs 1 and 2 of Article 105 of the Charter, to ensure the efficient performance of the functions entrusted to the Organization and to avoid the imposition of financial burdens on the funds contributed to the Organization by the Members” (PC/LEG/17, pp. 2 and 3). On 2 December 1945, the Secretariat, in connection with the topic of privileges and immunities considered by Committee 5, issued, for the information of delegations, the text of the above-mentioned report of the Rapporteur of Committee IV/2 at the San Francisco Conference (PC/LEG/22, pp.1 and 3). On 29 November 1945, Committee 5 established a Sub-Committee on Privileges and Immunities (see summary records of the third meeting of Committee 5: PC/LEG/10 and PC/LEG/16). On 8 December 1945, the Sub-Committee issued a draft recommendation for adoption by the Preparatory Commission and a draft convention on privileges and immunities (PC/LEG/34; pp.1 and 3; see also the report of the Sub-Committee to Committee 5, PC/LEG/33 and Rev.1, and the summary records of the ninth meeting of the Committee, PC/LEG/40). Under paragraph 2 of the draft recommendation, the Preparatory Commission was to recommend that the General Assembly “should propose to the Members of the United Nations a convention for the purpose of determining the details of the application of paragraphs 1 and 2 of Article 105 of the Charter and should adopt in accordance with Articles 104 and 105 of the Charter the attached draft convention on privileges and immunities”. On 10 December 1945, the Chairman of the Sub-Committee submitted to Committee 5 his report on the work of the Sub-Committee, which was followed by a general discussion (see summary records of the seventh meeting of Committee 5, PC/LEG/35). The draft recommendation, as amended by the Chinese delegation (PC/LEG/36) and by suggestions made by members of the Committee, was adopted by Committee 5 on 11 December 1945 (see summary records of the eighth meeting of Committee 5, PC/LEG/37) and circulated as document PC/LEG/38. On 13 December 1945, the Chairman of the Sub-Committee proposed additional paragraphs to the draft convention (PC/LEG/39). Committee 5 held its discussion on the draft convention on 14 and 15 December 1945 (see summary records of the ninth and tenth meetings of Committee 5, PC/LEG/40 and PC/LEG/41). The Committee thus concluded its work on 15 December 1945 by unanimously approving the draft convention, although many delegations made reservations concerning different articles (see PC/LEG/41). At the same meeting, the Committee, after adopting a deletion proposed by Yugoslavia in order to ensure that the General Assembly would consider the convention purely as a working paper, issued the recommendation on privileges and immunities (PC/LEG/42 and Corr. 1). Following this recommendation, the Preparatory Commission, in its report dated 23 December 1945, recommended that the General Assembly, at its first session, “should make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of Article 105 of the Charter, or propose conventions to the Members of the United Nations for this purpose” and transmitted “for the consideration of the General Assembly the attached study on privileges and immunities and the attached draft convention on privileges and immunities” (PC/20, Chapter VII, paras. 2 and 3). At the first session of the General Assembly, the consideration of the report of Chapter VII of the report of the Preparatory Commission was referred to the Sixth (Legal) Committee (see the verbatim records of the 16th plenary meeting of the General Assembly, 19 January 1946). The Sixth Committee held its discussions on the matter in the first part of the first session of the General Assembly. On 24 January 1946, the Chairman of the Committee proposed that a sub-committee on privileges and immunities be appointed (see Sixth Committee, Summary records of the sixth meeting, pp. pp. 14 and 15). Following a brief discussion, the Committee agreed that the terms of reference of the Sub-Committee would be to make recommendations on whether a draft convention on privileges and immunities or a series of recommendations on the topic should be adopted (ibid., p. 15). In its first report (A/C.6/17), the Sub-Committee recommended that the General Assembly should propose to the Members of the United Nations a convention in respect of privileges and immunities, to be drafted by the Sub-Committee; this recommendation was adopted unanimously by the Sixth Committee on 28 January 1946 (see the summary records of its seventh meeting, A/C.6/19, p. 16). The Sub-Committee thus submitted a draft of the General Convention on Privileges and Immunities of the United Nations (see the second report of the Sub-Committee, in summary records of the Sixth Committee, Annex 3a, A/C.6/31, p. 45), which the Sixth Committee recommended, with minor modifications, to the General Assembly for adoption (see Draft Recommendation and Convention on the Privileges and Immunities of the United Nations, A/C.6/28, and summary records of the 11th meeting of the Sixth Committee, A/C.6/37, pp. 26-28; see also the decision contained in ibid., p. 28). The Convention on the Privileges and Immunities of the United Nations was approved by the General Assembly on 13 February 1946 by resolution 22 (I) A and was proposed to every Member of the United Nations for accession. It entered into force on 17 September 1946.
As indicated above, the issue of the elaboration of a convention on the privileges and immunities of the United Nations and related issues were considered in the framework of Committee 5 (Legal Committee) of the Preparatory Commission of the United Nations. On 23 December 1945, based on the recommendations of its Committee 5 (PC/LEG/38, p.2, para.5), the Preparatory Commission of the United Nations recommended to the General Assembly that “the privileges and immunities of specialized agencies contained in their respective constitutions should be reconsidered” and that, if necessary, “negotiations should be opened for their co-ordination in the light of any convention ultimately adopted by the United Nations” on privileges and immunities (PC/20, Chapter VII, Section 1, p. 60, para. 5). The Commission pointed out, inter alia, that the privileges and immunities of the United Nations might be regarded as a maximum within which the specialized agencies should enjoy such privileges and immunities as the proper fulfilment of their respective functions might require (ibid.). On the same day the General Assembly approved the Convention on the Privileges and Immunities of the United Nations, on 13 February 1946, the Assembly also adopted resolution 22 (I) D entitled “Resolution on the Co-ordination of the Privileges and Immunities of the United Nations and the Specialized Agencies”, based on the recommendation proposed by the Sub-Committee on the Privileges and Immunities of the United Nations (see A/C.6/31) and adopted by the Sixth Committee on 8 February 1946 (see A/C.6/34 and A/C.6/38). In that resolution, the Assembly stated that there were “many advantages in the unification as far as possible of the privileges and immunities enjoyed by the United Nations and the various specialized agencies”, and considered that “the privileges and immunities of the United Nations should be regarded, as a general rule, as a maximum within which the various specialized agencies should enjoy such privileges and immunities as the appropriate fulfilment of their respective functions may require”. It thus instructed the Secretary-General “to open negotiations with a view to the re-consideration, in the light both of the General Convention [on privileges and immunities] adopted by the United Nations and of the considerations above, of the provisions under which the specialized agencies at present enjoy privileges and immunities”. At two preliminary meetings, held at Lake Success on 6 and 7 March 1947, the Secretary-General consulted the representatives of the specialized agencies on a single draft convention prepared by the United Nations Secretariat (see Report of the Secretary-General, “Co-ordination of the Privileges and Immunities of the United Nations and Specialized Agencies”, A/339, p.279). It was agreed that the problem of the unification of the privileges and immunities of the United Nations and the specialized agencies would be greatly facilitated by the adoption of such a single convention (A/339, pp.278 and 279). This convention would apply without distinction to all the specialized agencies and would lay down the general privileges and immunities required by those organizations, while reserving the special privileges which might be needed because of the particular functions of any individual agency. Subsequently, the International Labour Organization (ILO), the International Civil Aviation Organization (ICAO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) submitted their comments and suggestions on the draft convention prepared by the United Nations Secretariat (A/339, p. 280). On 23 July 1947, at a second meeting of the representatives of the specialized agencies held at Lake Success, the draft convention was amended in accordance with the observations and proposals received, adopted and submitted to the General Assembly under cover of a report of the Secretary-General (A/339, p. 281) issued on 20 August 1947. In his report, the Secretary-General pointed out that the specialized agencies favoured the convening of a general conference of all States Members of the various specialized agencies, which the specialized agencies themselves would be invited to attend in a consultative capacity, so as to enable them to submit any observations and suggestions that might be useful. The conference would discuss and adopt the text of a convention which it would propose for accession by the States Members of the United Nations and by States Members of the specialized agencies which are not Members of the United Nations (A/339, pp. 279 and 280). It was left for the Assembly to decide on the procedure to be followed in adopting the convention (A/339, p. 280). At the second session of the General Assembly, on 23 September 1947, the question of the co-ordination of the privileges and immunities of the United Nations and the specialized agencies was referred to the Sixth Committee (see verbatim record of the 91st plenary meeting of the General Assembly, A/392, p. 302; see also A/392, p.11, and A/C.6/134, p.1). On 24 September 1947, the Sixth Committee referred this question to a sub-committee composed of the representatives of Argentina, Canada, Cuba, Czechoslovakia, Egypt, India, Norway, Union of Soviet Socialist Republics, United Kingdom, United States of America and Yugoslavia (see A/C.6/134, p.1, and A/C.6/136, p.1). On 29 September 1947, the Sub-Committee on Privileges and Immunities of the Sixth Committee submitted an interim report (A/C.6/148) to the Sixth Committee stating that it had unanimously agreed that a single convention applicable to all the specialized agencies should be drafted. According to this interim report, the convention “when it had come fully into force, would be regarded as a complete statement of the privileges and immunities of the Specialized Agencies, apart from any special agreements concluded with the country in which their seat is established”( A/C.6/148, p. 2).While the Sub Committee recommended that the General Assembly should adopt the general part of the convention containing the standard privileges and immunities in definitive form, it also suggested that the texts of the various annexes drawn up by the Assembly and adapting the standard clauses to each of the agencies “might be made recommendations only and might be definitively settled in discussions held in the conferences or assemblies of the specialized agencies themselves” (A/C.6/148, p.3). On 2 October 1947, the Sixth Committee approved the interim report of the Sub-Committee without discussion (see A/C.6/148, p.23). Thereafter, on 15 November 1947, the Sub-Committee submitted a draft convention to the Sixth Committee for approval by the General Assembly (A/C.6/191, p.1). Although in a certain number of cases the privileges granted were narrower in scope than those of the United Nations, they were modelled on those of the Convention on Privileges and Immunities of the United Nations (A/C.6/191, para.5, p.3). The draft convention also contained nine annexes adapting the general provisions to each of the specialized agencies brought into relationship with the United Nations (A/C.6/191, para. 5, p. 3, and para. 13, p. 6) — namely, the International Labour Organization (ILO), the Food and Agriculture Organization of the United Nations (FAO), the International Civil Aviation Organization (ICAO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD), the World Health Organization (WHO), the Universal Postal Union (UPU) and the International Telecommunication Union (ITU) — and provided that a draft annex, based on the standard clauses, could be recommended by the Economic and Social Council for any agency later brought into relationship with the United Nations (A/C.6/191, para. 8, p. 4). The Sub-Committee recommended that the convention become applicable to each specialized agency when the final text of the relevant annex had been adopted by the agency in question according to its constitutional procedure and was received by the Secretary-General of the United Nations (A/C.6/191, paras. 6 and 7, p.3). The Sub-Committee also recommended three draft resolutions for adoption by the Sixth Committee (A/C.6/191). On 20 November 1947, the Sixth Committee considered the report of the Sub-Committee (A/C.6/191 and A/C.6/191/Corr.1) and, following a brief discussion, adopted the report. On 21 November 1947, the General Assembly considered the report of the Sixth Committee (A/503) and, by resolution 179 (II), approved the Convention on the Privileges and Immunities of the Specialized Agencies, which was 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 agencies for accession. The Convention entered into force on 2 December 1948. Selected preparatory documents Convention on the Privileges and Immunities of the United Nations Text of the Convention Convention on the Privileges and Immunities of the Specialized Agencies Text of the Convention Convention on the Privileges and Immunities of the United Nations The Convention entered into force on 17 September 1946. For the current participation status of the Convention, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see: The Convention entered into force on 2 December 1948. For the current participation status of the Convention, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see: |
