Law of International Organizations

Privileges and Immunities

Terminological I

Privileges I

a jural opposite of duty

Terminological II

Privileges II

a jural correlate of no-right

Terminological III

Privileges III

inapplicability of or derogation from

local legislation
Terminological IV

Immunity

a jural opposite of liability

Terminological V

Immunity

a jural correlate of disability

Terminological VI

Immunity

disability of local jurisdiction defined in

terms of power
Rationale

Functional
imperatives/requirements/necessities of
international organizations
The UN Conventions, 1946 and 1947 I

Multilateral obligations of states

The UN Conventions, 1946 and 1947 II

Distinction between the privileges and

immunities of:

the representatives of UN members

The UN Conventions, 1946 and 1947 III

Multilateral obligations of states

Distinction between the privileges and

immunities of:

UN officials

Abdi Hosh Askir v. Boutros

Boutros-Ghali (1996)
The UN Conventions, 1946 and 1947 IV

UN officials

Abdi Hosh Askir v Boutros Boutros-Ghali

Action to recover $190 million in damages for the

alleged unauthorized and unlawful possession of
the plaintiff’s property by the UN and its agents in
Somalia during the UN’s military and humanitarian
operations.
The UN Conventions, 1946 and 1947 V

UN officials

Abdi Hosh Askir v. Boutros Boutros-Ghali

Immunity applied because the acts complained of by

the plaintiff were the exercise of governmental
functions rather than private commercial activity.
The UN Conventions, 1946 and 1947 VI

Multilateral obligations of states

Distinction between the privileges and

immunities of:

experts on mission
The UN Conventions, 1946, Article VII

Section 22: Experts (other than officials coming within

the scope of Article V) performing missions for the
United Nations shall be accorded such privileges and
immunities as are necessary for the independent
exercise of their functions during the period of
their missions, including time spent on journeys in
connection with their missions. In particular they
shall be accorded:
The UN Conventions, 1946, Article VIII

Section 22 (contd.)

[…]

(b) in respect of words spoken or written and acts

done by them in the course of the performance of
their mission, immunity from legal process of every
kind. This immunity from legal process shall
continue to be accorded notwithstanding that the
persons concerned are no longer employed on
missions for the United Nations.
UN Conventions (contd.) IX

Experts on mission (Art. VI, section 22)

The Cumaraswamy case, ICJ Ad Op. 1999

The Cumaraswamy case, ICJ Ad Op. 1999 I

ECOSOC’s request for an advisory opinion

“on the legal question of the applicability

of Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations in the
case of Dato’ Param Cumaraswamy as Special
Rapporteur of the Commission on Human
Rights on the independence of judges and lawyers,
taking into account the circumstances set out in
paragraphs 1 to 15 of the note by the Secretary-
General, and

on the legal obligations of Malaysia in this case."

The Cumaraswamy case II

The Council did not pass upon any proposal that the
question to be submitted to the Court should include,
still less be confined to, the issue of the exclusive
authority of the Secretary-General to determine whether
or not acts (including words spoken or written) were
performed in the course of a mission for the United
Nations, ICJ para. 37.

The legal questions submitted by the Council in its

request concern the activities of the Commission, ICJ
para. 27.
The Cumaraswamy case III

Independent exercise of functions: Purposive

approach.

It has become standard practice of Special

Rapporteurs of the Commission to have contact
with the media.

Entrustment of a mission by the UN: Functional

Approach.
The Cumaraswamy case IV

Aptness of the words spoken

Whether words were spoken in the course of

the performance of the functions
The Cumaraswamy case V

Cumaraswamy is entitled to immunity from legal

process of every kind for the words spoken by him
during an interview as published in an article in the
November 1995 issue of International Commercial
Litigation, ICJ, dispositif 1 (b)
The Cumaraswamy case VI

Malaysia had the obligation to inform the Malaysian

courts of the finding of the Secretary-General that
Cumaraswamy was entitled to immunity from legal
process, ICJ, dispositif 2 (a)
The Cumaraswamy case VII

Malaysian courts had the obligation to deal with the

question of immunity from legal process as a
preliminary issue to be expeditiously decided in limine
litis; ICJ, dispositif 2 (b)
The Cumaraswamy case VIII

Malaysia had the obligation to inform the Malaysian

courts of the finding of the Secretary-General that
Cumaraswamy was entitled to immunity from legal
process, ICJ, dispositif 3
The Cumaraswamy case IX

Malaysia has the obligation to communicate

this Advisory Opinion to the Malaysian courts, in order
that Malaysia's international obligations be given
effect and Cumaraswamy's immunity be respected,
ICJ, dispositif 4
Headquarters Agreements

SAU Headquarters Agreement, 2008

The President and the Faculty Members of the

University, and where applicable their
dependents and members of the family, shall enjoy
within and with respect to the territory of the
Host Country:
SAU Headquarters Agreement, 2008

a. Immunity from personal arrest or detention and

legal processes of any kind in respect of words
spoken or written and acts performed by them in
their official capacity and in the discharge of their
duties;
SAU Headquarters Agreement, 2008

b. Exemption from taxation in respect of the salaries,

honoraria, allowances and other emoluments in
connection with their services with the University.
SAU Headquarters Agreement, 2008

c. The right to get appropriate visas with the

exemption from alien registration as per local laws;
SAU Headquarters Agreement, 2008

d. Exemption in respect of exchange restrictions no

less favourable than that accorded to the officials of
comparable ranks in international organizations
accredited to the Host Country:
SAU Headquarters Agreement, 2008

e. Repatriation facilities in time of national crisis,

together with their dependents and members of
their household staff not less favourable than those
accorded to the officials of the comparable ranks in
the international organizations accredited to the
Host Country;
SAU Headquarters Agreement, 2008

f. Freedom to maintain within the territory of the

Host Country, or elsewhere, foreign securities, and
other movable and immovable property, while
employed by the University in the Host Country, and
at the time of termination of such employment, the
right to take out of the territory of the Host Country
funds in any currency his/her savings without
restriction or limitations; and
SAU Headquarters Agreement, 2008

g. Have the right on first arrival to import free of

customs duties, taxes and other levies, furniture,
motor vehicles, other personal and household effects
to establish residence in the Host Country as
applicable to the resident members in
International Organisations and the right to export
with similar privileges goods thus imported at the
termination of their duties with the Centre. The
goods so imported shall be disposed of in accordance
with local rules.
SAU Headquarters Agreement, 2008

h. Provided however that in respect of Indian

nationals and permanent residents of India, only
paras (a) and (b) above shall apply.
SAU Headquarters Agreement, 2008

2. The Citizens of the Host Country, who are Faculty

Members of the University shall be entitled to
maintain foreign exchange account of their
salaries, honoraria allowances and other
emoluments received from the University in
convertible currency in the Host Country subject to
local regulations.
SAU Headquarters Agreement, 2008

3. The General Services Staff, who are not citizens of

or permanent residents of the Host Country shall
enjoy immunity from civil/criminal and
administrative processes only in respect of acts
performed during the course of their official
duties;
SAU Headquarters Agreement, 2008

4. Without prejudices to their privileges and

immunities, it is the duty of the President and Faculty
Members and General Services Staff of the University
to respect the laws of the Host Country and to avoid
any interference in its internal affairs, not to involve in
political propaganda and activity against the interest of
any SAARC Member State or the SAARC Charter;
SAU Headquarters Agreement, 2008

5' All persons enjoying the privileges and immunities

under this Agreement shall be provided by the Host
Government with a special identity card which shall
serve to identify the holder in relation to the
appropriate authorities and certify that the holder
enjoys the privileges and immunities in the
Agreement;
SAU Headquarters Agreement, 2008

7. Each Member State shall accord immunities and

privileges to the president and other Faculty Members
of the University when visiting its territory on official
duties.
SAU Headquarters Agreement, 2008

Privileges and immunities are granted to officials in

the interests of the University and not for the
personal benefit of the individuals themselves. The
President shall have the right and duty to waive the
immunity of any official in any case where, in his
opinion, the immunity would impede the course of
justice and can be waived without prejudice to the
interests of the University. In the case of the
President, the Secretary General of SAARC shall have
the right and duty to waive immunity.
G Bassi Reddy v International crop Research
Institute for the Semi-Arid Tropics (ICRISAT)

Action against ICRISAT before Indian courts for

termination of employment.
G Bassi Reddy v International crop Research Institute

Immunity from legal process granted by India to

ICRISAT.
G Bassi Reddy v International crop Research Institute

ICRISAT is not a statutory body nor its activities are

mandated by a statute.
G Bassi Reddy v International crop Research
Institute

Article 226 cannot be resorted to in order to enforce

a contractual right.
G Bassi Reddy v International crop Research Institute

Exception is made only where the order of termination

is made by a statutory body acting in breach of a
mandatory obligation imposed by a statute.
SAU Act, 2008 I

3. Provisions of Agreement to have force of law.—

Notwithstanding anything contrary contained in any
other law, the provisions of the Agreement set out in the
Schedule shall have the force of law in India.
Schedule 1
4. (1) The legal capacity of the University shall, inter alia,
include:
(c) to sue and be sued in its name
Articles, 2 (objectives), 3 (funding), 5 (Governance
structure)
4 (2) The University shall be a body corporate having
perpetual succession and a common seal and shall sue
and be sued by the said name.
SAU Act, 2008 II

14. Privileges and immunities of President and academic

staff.—The University, the President and the members
of the academic staff and, where applicable, their
dependents or members of the family, shall enjoy such
privileges and immunities as the Central Government
may notify under section 3 of the United Nations
(Privileges and Immunities) Act, 1947 (46 of 1947).
Section 3 of the United Nations (Privileges and
Immunities) Act, 1947 (46 of 1947) I

Where in pursuance of any international

agreement, convention ot other instrument it is
necessary to accord to any international
organization and its representatives and officers
privileges and immunities in India similar to those
contained in the provisions set out in the Schedule,
Section 3 of the United Nations (Privileges and
Immunities) Act, 1947 (46 of 1947) II

3…. the Central Government may, by notification in

the Official Gazette, declare that the provisions set
out in the Schedule will, subject to such
modifications, if any, as it may consider necessary of
expedient to giving effect to the said agreement,
convention or other instrument apply mutatis
mutandis to the international organization specified
in the notification and its representatives and
officers, and thereupon the said provisions shall
apply accordingly and, notwithstanding anything to
the contrary contained in any other law, shall in
such application have the force of taw in India.
The Gazette Notifications of 2009 and 2021

Deletion of the immunity of the Registrar but

retention of those of the University, the President and
the faculty members under the UN Act in the
extension of Article II to VIII of the Schedule to the UN
Act to SAU.
The varying scopes of the SAU Headquarters Agreement
and the Gazette Notifications in respect of immunities
Law before national courts

Headquarters Agreement versus the UN Act

versus the Gazette Notifications
Interpretation of the UN Act by the national courts

Section 2. The United Nations, its property and assets

wherever located and by whomever held, shall enjoy
immunity from every form of legal process except
insofar as in any particular case it has expressly waived
its immunity...
Deferent interpretation of identical terms by the U.S.
and Indian Courts

“The United Nations, its property and assets”

“immunity from every form of legal process”

The Vienna Convention, 1975 (not yet in force)

Immunities and privileges of non-member

delegations

Practice of states

consistency v inconsistency

Opinio juris?
Immunities and privileges of representatives of one
international organizations in another international
organization

Membership of the host state in the represented

organization

Special agreement with the host state

Immunities and privileges of representatives of
non-governmental organizations

none in formal sense or other than

courtesies

subject to visa of the host state provisions

Conclusions

Immunities and privileges imply no derogation from

the rule of law per se but are required by a rule of
procedural law.

Existence of immunity implies no absence of

responsibility which is governed by substantive law.

Considerations of justice would confront admission of

immunity if resulting in denial of justice.