The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations

241 Pages·1964·6.85 MB·English

by  Kuljit Ahluwalia (auth.)

THE LEGAL STATUS,
PRIVILEGES AND IMMUNITIES OF THE
SPECIALIZED AGENCIES OF
THE UNITED NATIONS AND CERTAIN OTHER
INTERNATIONAL ORGANIZATIONS
K ULJIT ARL UWALIA
THE LEGAL STATUS,
PRIVILEGES AND IMMUNITIES OF THE
SPECIALIZED AGENCIES OF
THE UNITED NATIONS AND CERTAIN OTHER
INTERN ATION AL ORGANIZATIONS
WITH A FOREWORD BY
LELAND M. GOODRICH
Professor of International Organization and
Administration, Columbia University
•
MARTINUS NI]HOFF I THE HAGUE / I964
ISBN 978-94-015-0392-1 ISBN 978-94-015-0989-3 (eBook)
DOllO.1007/978-94-015-09B9-3
Copyright I964 by Martinus Nijhotl. The Hague. Netherlands
All rights reserved. including the right to translate or to
reproduce this book or parts thereof in any form
FOREWORD
The past century has been a period of revolutionary change in many
fields of human activity, in institutions and in thought. This period
has seen the need of adjustment of state institutions and legal concepts
to the needs of greater international cooperation. During the half
century preceding the First World War, cooperation by governments
outside the traditional diplomatic channels and procedures was largely
limited to highly technical organizations, commonly referred to as
public international unions, dealing with such matters as the im
provement of postal communications and the control of contagious
diseases. With the establishment of the League of Nations and the
International Labor Organization at the end of the First World War,
organized international cooperation assumed greater importance and
the need was recognized of giving to the instruments of such cooper
ation legal status and rights which would facilitate the effective
performance of their functions. This proved to be a difficult adjustment
for legal theory to make since the enjoyment of special privileges and
immunities had been based in traditional international law on the
fiction of state sovereignty. The new international organizations,
while performing functions of the kind performed by national govern
ments, were far from possessing the powers of such governments.
The failure of the League of Nations to achieve its major purpose
did not signify any permanent decline in the role of organized inter
national cooperation. Indeed the ensuing war made it seem even more
necessary that nations cooperate for common purposes - the mainte
nance of peace and the promotion of general welfare. Out of the chaos
and destruction of war and the recognized needs for the post-war era
developed a far more extensive and complex system of international
agencies - general and specialized, global and regional - than had
VI FOREWORD
ever existed before, each with important functions to perform and
with limited powers. As means to achieve common ends, governments
agreed to new permanent organs, to increasingly frequent meetings of
international bodies, and to the establishment of permanent staffs to
service these bodies and to assist in various ways in achieving common
purposes. Questions concerning the international legal status of these
bodies, the extent of privileges and immunities of national representa
tives attending their meetings, and the extent of the privileges and
immunities of international officials have acquired increased im
portance and urgency. It has come to be recognized that rational
theories based on concepts of state sovereignty are not particularly
helpful in giving answers. Rather the answer is provided by the
requirements of the effective functioning of the particular organizations.
Dr. Ahluwalia in her study is concerned with a part of the larger
problem which thus far has not received the attention it deserves.
While the specialized agencies do not attract as much public attention
as the United Nations, their work in many respects is closer to the felt
needs and aspirations of the people. Furthermore, the specialized agen
cies serve as executive agents of, or collaborate in, many of the more
important United Nations operations. The study of their special legal
status and of the privileges and immunities which they enjoy is
therefore of great practical as well as theoretical importance.
Dr. Ahluwalia's study is based on a thorough examination of
documentary materials and other available evidence of practice. Her
work will serve as a valuable guide to understanding the theory on
which privileges and immunities are based as well as a useful reference
book for those interested in knowing particular details regarding the
extent of privileges and immunities enjoyed by particular agencies.
Furthermore, it presents the development of practice and doctrine in
historical perspective, showing how changed circumstances and
necessities have had their effects.
LELAND M. GOODRICH
Professor of International
Organization and Administration,
Co lumbia University
ACKNOWLEDGEMENTS
The writer gratefully acknowledges her debt of gratitude to Professors
Philip C. Jessup and Leland M. Goodrich of Columbia University for
their invaluable suggestions, constructive criticism and the benefit of
their vast knowledge in their respective fields of international law and
organization. The writer acknowledges with great pleasure the helpful
co-operation of various international organizations in supplying
necessary documents and valuable information. The assistance of the
Library Staff of the Columbia University Law Library is acknowledged
with keen appreciation. Grateful acknowledgement is also made to
Professor C. J. Chacko of Delhi University under whom the writer
began her studies in international law. Above all, the writer gratefully
acknowledges her inestimable debt to the Ministry of Education,
Government of India, for its generous financial assistance.
KULJIT AHLUWALIA
New York, April 1960.
ABBREVIATIONS
A.C. Appeal Cases (Great Britain)
A.J.I.L. American Journal of International Law
All E.R. All England Law Reports
Bank International Bank for Reconstruction and Develop
ment
B.Y.I.L. British Year Book of International Law
Ch. Chancery Division (Great Britain)
Corporation International Finance Corporation
ECSC European Coal and Steel Community
EEC European Economic Community
Euratom European Atomic Energy Community
FAO Food and Agriculture Organization
F. Supp. Federal Supplement (United States)
Fund International Monetary Fund
F.2d Federal Reporter, 2nd Series (United States)
IAEA International Atomic Energy Agency
ICAO International Civil Aviation Organization
ILO International Labour Organization
IMCO Inter-Governmental Maritime Consultative Organiz
ation
ITU International Telecommunication Union
L.R. Law Reports (Great Britain)
N.Y.S.2d New York Supplement, Second Series
OAS Organization of American States
P. D. Probate Division (Great Britain)
UNESCO United Nations Educational, Scientific and Cultural
Organization
U.N.T.S. United Nations Treaty Series
x
ABBREVIATIONS
UPU Universal Postal Union
U.S. United States Reports
WHO World Health Organization
WMO World Meteorological Organization
CONTENTS
Foreword v
Abbreviations IX
INTRODUCTION 1
I. PRIVILEGES AND IMMUNITIES IN INTERNATIONAL LAW 5
I Foreign States 5
(i) Recent trends towards the abandonment of the theory
of absolute immunity of States 5
(ii) Proposals of unofficial bodies, the League of Nations, and
the United Nations 6
(iii) British practice 14
(iv) American practice 17
(v) Conclusion 22
II. The Legal Status of Armed Forces in Foreign Territory During
Peacetime 23
(i) Theories on the immunity of the armed forces 23
(ii) The theory of qualified immunity is the most accepted
theory 25
(iii) Some recent agreements on the status of visiting forces 26
(a) Status of Members of the Armed Forces of the Brus-
sels Treaty Powers (1949) 26
(b) Nato Status of Forces Agreement 27
(c) Agreement Concerning Questions Connected with
the Presence of Soviet Forces on East German
Territory 28
(d) Agreement on the Legal Status of the Soviet Forces
Temporarily Present on the Territory of the Hun-
garian People's Republic 29
(e) Agreement on the Legal Status of Soviet Troops
Temporarily Stationed in Poland 30
(iv) Conclusion 31
III. Public Vessels 32
(i) Public armed vessels 32
(ii) Public vessels engaged in commerce 33
XII CONTENTS
IV. Diplomatic Agents 33
(i) Theoretical basis of diplomatic immunities 34
(ii) Recent trends in the law of diplomatic immunities 34
(iii) A review of the draft articles on diplomatic intercourse and
immunities adopted by the International Law Com-
mission of the United Nations during its tenth session 37
(iv) Conclusion 47
n. THE LEGAL STATUS, PRIVILEGES AND IMMUNITIES OF THE SPECIAL
IZED AGENCIES OF THE UNITED NATIONS AND CERTAIN OTHER
INTERNATIONAL ORGANIZATIONS AND THEIR HEADQUARTERS 48
(i) The legal basis of privileges and immunities of the Organ-
izations 51
(ii) Juridical personality and legal capacity of the Organizations 59
(iii) Applicability of local laws within the headquarters of the
Organizations 72
(a) Power to make regulations applicable within the head-
quarters area 76
(b) Transactions taking place within the headquarters of
the Organizations 78
(c) Crimes committed within the headquarters of the Organ-
izations 80
(iv) Inviolability of the headquarters of the Organizations 81
(a) Immunity from search of the headquarters and property
of the Organizations located therein 81
(b) Right of the authorities of the host State to enter the
headquarters of the Organizations 82
(c) Use of the headquarters of the Organizations as places
of asylum 85
(v) Duty of the host State to ensure the protection of the head-
quarters of the Organizations 86
(vi) Fiscal and other immunities enjoyed by the Organizations 89
(vii) Communication facilities enjoyed by the Organizations 97
(viii) Prevention of abuse of privileges and immunities by the
Organizations 101
In(A) PRIVILEGES AND IMMUNITIES OF THE OFFICIALS OF THE SPECIALIZED
AGENCIES OF THE UNITED NATIONS AND CERTAIN OTHER INTER-
NATIONAL ORGANIZATIONS 105
(i) Immunity from legal process 106
(ii) Personal inviolability 113
(iii) Exemption from national income taxation 115
(iv) Exemption from national service obligations 122
(v) Customs exemptions and import facilities 127
(vi) Exemption from immigration restrictions and alien regis-
tration 134
(vii) Exchange and repatriation facilities 138
(viii) Travel facilities 140
(ix) Waiver of immunity 144
III(B) PRIVILEGES AND IMMUNITIES OF EXECUTIVE HEADS AND OTHER
SENIOR OFFICIALS