Un Immunities

Plaintiff's Arguments to Limit or Disregard the UN's Immunities Under the General Convention Lack Merit in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): There is no merit to Plaintiff's contention that the United Nations enjoys only functional, not absolute, immunity, and that the UN's assertedly functional immunity does not extend to the alleged private contract in this case, which Plaintiff alleges constitutes commercial activity. According to Plaintiff, … the United Nations Charter provides only for functional immunity because it states that the United Nations shall enjoy “such privileges and immunities as are necessary for the fulfillment of its purpose.” He further argues that commercial activities are not “necessary for the fulfillment of [the UN's] purpose,” and therefore are not covered by the immunity granted by the United Nations Charter.

Plaintiff is incorrect. While the United Nations Charter does not explicitly state what exact nature and extent of immunity is “necessary for the fulfillment of” the UN's purposes, the General Convention eliminates any possible ambiguity by providing that “[t]he United Nations . . . shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” General Convention, art. II, § 2. It is easy to understand why the United Nations would need such broad immunity; without it, it could be subject to over 190 disparate legal systems.…

Plaintiff's argument also is inconsistent with the plain meaning of Article II, Section 2 of the General Convention. While he is correct that the General Convention requires the United Nations to establish arbitration procedures to settle contract disputes, … these provisions do not even remotely suggest that the United Nations has somehow waived its immunity from “legal process.” Indeed, these provisions actually complement the UN's absolute immunity, and do not justify ignoring or limiting it as Plaintiff suggests. The UN's provisions for non-judicial dispute resolution provide an alternative to judicial proceedings that mitigates any effects of the UN's immunity from suit or process in member states' court systems. However, nothing in the procedures Plaintiff invokes purports to limit or waive the UN's immunity from judicial proceedings.

Also incorrect is Plaintiff's contention that, if the General Convention were read to provide for absolute immunity, it would conflict with the United Nations Charter and to that extent would be inoperative pursuant to Article 103 of the United Nations Charter. Plaintiff has not established, and cannot establish, the conflict with the United Nations Charter on which his argument depends. The General Convention's plain language providing for absolute immunity does not conflict with the United Nations Charter because, at the time the General Convention was adopted, the then-recently-adopted United Nations Charter had left that possibility open by not specifying the extent of immunity enjoyed by the UN. Indeed, the United Nations Charter itself anticipated the possible subsequent issuance of a convention setting forth a more specific definition of the scope of the UN's immunity: Article 105, § 3 of the United Nations Charter specifically provides that “[t]he General Assembly may make recommendations with a view to determining the details” of the immunity provided to the United Nations in Article 105(1), “or may propose conventions to the Members of the United Nations for this purpose.” United Nations Charter, art. 105, § 3. The General Convention served this purpose…

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See Also

• Privileges
• Immunities
• International Organizations
• United Nations