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Immunity of Officers and Employees of the United Nations for Official Acts: The Ranallo Case

Published online by Cambridge University Press:  20 April 2017

Lawrence Preuss
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Extract

The first judicial interpretation of the immunities of staff members of the United Nations is contained in the decision of the City Court of New Eochelle, New York, in the case of County of Westchester on complaint of Walter Donnelly, Complainant, v. William Banollo, Defendant. The opinion in this ease, delivered on November 8, 1946, by Acting City Judge Sol Eubin, also contains the first judicial construction of the International Organization Immunities Act of December 29, 1945, which was designed, in part, to implement the provisions of Articles 104 and 105 of the Charter of the United Nations and any future conventions or agreements which might be concluded pursuant thereto.

Type
Research Article
Information
American Journal of International Law , Volume 41 , Issue 3 , July 1947 , pp. 555 - 578
Copyright
Copyright © American Society of International Law 1947

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References

1 67 N. Y. S. (2d) 31; for text of opinion see also United Nations, General Assembly, Document A/C.6/57 (Nov. 9, 1946). The name of the defendant appears as “Ranallo” in the letter of Secretary-General Lie, dated Nov. 29, 1946 (note 9, below).

2 Public Law 291, 79th Cong.; 59 Stat. 669; this Journal, Vol. 40 (1946), Supplement, p. 85 (hereinafter referred to as the “Immunities Act”).

3 The General Assembly on Feb. 13, 1946, approved and proposed for accession by each Member of the United Nations a General Convention on Privileges and Immunities of the United Nations (hereinafter referred to as the “General Convention”). On the same date it transmitted to the Secretary-General a draft Convention between the United Nations and the Government of the United States of America, to be used as the basis of the negotiations required as a result of the establishment of the seat of the United Nations in the United States. See Privileges and Immunities of the United Nations, Report of the Sixth Committee to the General Assembly (Rapporteur: W. E. Beckett [United Kingdom]), Doc. A/43 (Feb. 9, 1946), with texts as Annexes I and II; texts also in Doc. A/64, pp. 25, 28. On the drafting of Arts. 104, 105 of the Charter, and of the two conventions, see Reiff, Henry, “Work of the United Nations ‘Legal Committees,’” Department of State Bulletin, Vol. XV, No. 366 (July 7, 1946), pp. 9–10 Google Scholar; same, No. 372 (Aug. 18, 1946), pp. 305–306; same, No. 373 (Aug. 25, 1946), pp. 349–350.

Negotiations which took place at Washington on June 10–19, 1946, on the basis of the Draft Convention of Feb. 13, resulted in a revised draft of June 20, 1946 (hereinafter referred to as the “Draft Agreement”). See the Joint Report by the Secretary-General and the Negotiating Committee on the Negotiations with the Authorities of the United States of America concerning the Arrangements Required as a Result of the Establishment of the Seat of the United Nations m the United States of America, Doc. A/67 (Sept. 1, 1946). Annex I contains the text of the Convention/Agreement between the United Nations and the United States. This revised draft was merely tentative in view of the fact that the exact site of the headquarters of the United Nations had not yet determined. See, in general, “The United Nations under American Municipal Law: A Preliminary Assessment,” Yale Law Journal, Vol. 55 (1946), pp. 778–793.Google Scholar

Although the Immunities Act was intended primarily to meet the requirements of international organizations other than the United Nations, it serves also as a temporary measure for fulfilling the obligations imposed by the Charter, pending accession of the United States to the General Convention and conclusion of the special agreement or convention with the United Nations. See Preuss, Lawrence, “The International Organizations Immunities Act,” this Journal, “Vol. 40 (1946), pp. 332–345.Google Scholar

4 Mr.Fahy, Charles to Mr.Lie, Trygve, Nov. 28, 1946. United Nations, Press Release M/178 (Nov. 29, 1946), p. 3.Google Scholar

Sec. 8(a) provides: “No person shall be entitled to the benefits of this title unless he (1) shall have been duly notified to and accepted by the Secretary of State as a representative, officer, or employee; or (2) shall have been designated by the Secretary of State, prior to formal notification and acceptance, as a prospective representative, officer, or employee; or (3) is a member of the family or suite, or servant, of one of the foregoing accepted representatives, officers, or employees.”

5 The law of New York provides that in prosecutions for a misdemeanor the defendant need not be present, but may appear by counsel. Gil. Crim. Code (1945), Cr. Pr., Sees. 297, 356, 434.

6 Sec. 7(b): “Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.”

7 For the above statement, which is in amplification of his opinion of November 8, the writer is indebted to a personal letter from Judge Rubin, dated Feb. 19, 1947.

8 67 N. T. S. (2d) 31, 35.

9 United Nations, Press Release M/178 (Nov. 29, 1946), p. 2.

10 Same, p. 3.

11 “This Court feels strongly that the question of immunity under these circumstances should be entrusted not to the whim or caprice of any individual or committee that might speak for the United Nations, but rather that such immunity should be available only when it is necessary to assure the proper deliberations of the Organization—a circumstance that could be readily brought about if the granting of immunity were restricted to those cases where our own State Department certified that the exemption from prosecution or suit was in the public interest.

12 United Nations, Press Release M/78 (Nov. 29, 1946), p. 1.

13 Regulation 4: “The immunities and privileges attaching to the United Nations by virtue of Article 105 of the Charter are conferred in the interests of the Organization. These privileges and immunities furnish no excuse to the staff members who enjoy them for non-performance of their private obligations or failure to observe laws and police regulations. In any case where these privileges and immunities arise, the staff member concerned shall immediately report to the Secretary-General, with whom alone it rests to decide whether they shall be waived.” Resolution of the General Assembly, Feb. 13, 1946, on Organization of the Secretariat, Annex II, Doc. A/64 (July 1, 1946), p. 18.

14 Section 21 further provides: “The United Nations shall cooperate at all times with the appropriate authorities of Members to facilitate the proper administration of justice, secure the observance of police regulations, and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this Article.”

15 The following cases are reported in the press: (1) Andrew Jackson, a United Nations employee, was charged with speeding in Yonkers, and, no plea of immunity having been raised, was fined $35 by City Judge C. W. Boote on Nov. 1, 1946 (The New York Times, Nov. 5, 1946); (2) David Sisson, a chauffeur employed by the United Nations, was charged with speeding in New Rochelle, and was fined $5 on Nov. 4 by Magistrate J. R. Hockert, after an assistant to the Security Officer of the United Nations, appearing before the Court, had stated: “The United Nations does not intend to ask immunity for chauffeurs and other staff employees. They are subject to the laws as well as anyone else” (same, Nov. 5, 1946); (3) Rafik Asha, stated to be an employee of the United Nations, was fined $10 for speeding by Justice of the Peace Louis Gangano in the Greenburgh Police Court, after the Court had been notified by the Security Officer that the defendant was prepared to pay any fine assessed (same, Nov. 16, 1946).

16 (1) Dr. José Arce, Ambassador of Argentina to the United States, and Chief Representative of Argentina to the General Assembly, having received a summons for speeding in Irvington-on-Hudson, offered in a letter to Judge James J. Lyden to pay any fine which might be imposed, in stating: “I do not know whether, in my capacity of Ambassador, any specific privileges are granted to me by the laws of the State of New York. Nor am I interested in knowing whether this is so or not, since I am a strict observer of the law, within or outside of my country.” Construing this as a plea of guilty, Judge Lyden imposed a fine of $15 (same, Nov. 14, 1946). (2) On Nov. 8, Mikhail Ruhachev, driver of a Soviet Embassy car with a diplomatic license, pleaded guilty to speeding in Glen Cove, and was fined $5 by City Judge Beginald Moore. The Court in this case indicated that it was prepared to assume jurisdiction even in the event that the plea of diplomatic immunity had been raised (same, Nov. 9, 1946). (3) On Nov. 22, a Dutch Representative to the United Nations (apparently Dr. M. P. L. Steenberghe, President of the Economic, Financial and Shipping Mission of the Netherlands at Washington, D. C.) pleaded guilty by telegram to speeding in Pelham. Justice Stott, in imposing a fine of $15, stated in reply that “These immunities, which must of necessity be granted, should not be used lightly. Like the veto power in your own [Security] Council, it should only be resorted to under circumstances of the most unusual nature. Our community is based upon the theory that all men are equal before the law …” (same, Nov. 22, 1946).

17 It is reported in The New York Times of Nov. 16, 1946, that Judge Rubin had on the preceding day “displayed a thick sheaf of letters received from all parts of the country. Each letter, without exception, protested against the granting of immunity in the Ranollo case and all similar legal action involving United Nations personnel.” It is not, of course, to be presumed that the Court would have been influenced by this novel form of Gallupsjurisprudenz’, had the case gone to trial.

18 Among the cases which established this principle, see United States v. Liddle, 26 Fed. Cas. 936, No. 15, 598 (C.C.Pa. 1808); United States v. Ortega, 27 Fed. Cas. 359, No. 15,971 (C.C.Pa. 1825); and United States v. Benner, 24 Fed. Cas. 1084, No. 14,568 (C.C.Pa. 1830).

19 The contentions of the Attorney-General, approved by the House of Lords in Engelke v. Musmann [1928], A.C. 433, are so cogently stated, and are of such obvious applicability in the situation under discussion in the present article that they merit quotation in extenso: ”… The Attorney-General submits that a statement that recognition has been accorded made on behalf of His Majesty either by the Secretary of State or by H. M. Attorney-General in person must necessarily be conclusive on the diplomatic status of that person. It must be admitted, however, that such a statement is conclusive upon the question of diplomatic status alone; and it is still for the Court to determine as a matter of law whether, the diplomatic status having been conclusively proved, immunity from process necessarily follows. The Attorney-General desires to point out that there may be cases in which, though the diplomatic status is conclusively proved in the manner indicated, yet immunity from process may still not exist. … In no sense, therefore, … is the jurisdiction of the Court to determine the existence of immunity ousted merely because, as the Attorney-General submits, a particular form of proof of diplomatic status is conclusive and cannot be questioned. … If the Court can go behind the statement and themselves seek to investigate the facts, compelling the person on behalf of whom the immunity is claimed to submit to legal process for that purpose, it would be impossible for His Majesty to fulfil the obligations imposed upon him by international law and the comity of nations, since the steps taken to investigate the claim would in themselves involve a breach of diplomatic immunity which in the event the Court might decide to have been established. …” Lord Phillimore observed that “where an applicant is claiming that he is privileged from litigation it seems a strange result if he is forced to litigate in order to obtain his exemption from litigation.” [1928], A.C. 433, 449. See also, The Amazone [1940], P. 40 (C.A.).

20 135 u. s. 403, 432 (1890). Also, Lehigh Valley R. Co. v. State of Russia, 21 F. (2d) 396, 400 (CCA. 2d, 1927).

21 In Republic of Mexico v. Hoffman, 324 U. S. 30 (1945) [this Journal, Vol. 39 (1945), p. 585], Chief Justice Stone stated: “It is … not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.” The decision in this case has led Philip C. Jessup, in a trenchant criticism of the recent trend, to answer affirmatively the question: “Has the Supreme Court Abdicated One of Its Functions?” This Journal, Vol. 40 (1946), pp. 168–172.

22 Compare the writer’s remarks concerning the varying forms of State Department suggestions of immunity, with citation of cases, in this Journal, Vol. 36 (1942), pp. 44–46.

23 united States of Mexico v. Schmuck, 294 N. Y. 265 [this Journal, Vol. 40 (1946). p. 205], in which Lehman, Ch.J., stated (at p. 272) that: “An extraordinary situation calling for extraordinary remedy may be presented … when a court assumes to try issues which are beyond its competency or to exercise a jurisdiction which, in accordance with well established rules of policy which have the force of law, it should decline to exercise. (Ex parte Peru, 318 U. S. 578, … ) [this Journal, Vol. 38 (1944), p. 132]. … Judicial inquiry may be precluded of claims of immunity previously determined by a competent political branch of the Government upon the request of a foreign sovereign State. In such cases, as the courts have frequently pointed out, the courts ‘follow the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.’ (United States v. Lee, 106 U. S. 196, 209). Then judges who assume a jurisdiction which may embarrass the Department of State in the conduct of foreign relations may be commanded to relinquish jurisdiction upon the request or suggestion of the political branch of the Government.” Also, Miller v. Ferrooarril del Pacifico de Nicaragua, 137 Maine 251 (1941); Stone Engineering Co. v. Petroleos Mexicanos, 352 Pa. 12 (1945).

24 Judge Lehman continued (294 N. Y. 265, at p. 273): “The question whether a court has acquired jurisdiction over the person of a defendant or the subject matter of an action, and the question whether a court should relinquish jurisdiction, are judicial questions which ordinarily must be decided by the court whose jurisdiction is challenged. Where such challenge is made …, the court must relinquish a jurisdiction based upon service of such process when it appears that the claim of immunity has been recognized and allowed by a competent political branch of the government …; but the judicial branch, even in such case, retains jurisdiction to determine any question left open by the political branch of our government for decision by the judicial branch. …”

25 44 A. (2d) 226 (1945).

26 This is the “List of Employees in the Embassies and Legations in Washington Not Printed in the Diplomatic List.” Since it is apparently prepared without investigation or verification, it is not conclusive evidence of the diplomatic character of those whose names are listed. Same, at p. 228–230.

27 Same, at p. 231.

28 254 N. Y. Supp. 657 (1932).

29 See Ex parte Muir, 254 U. S. 522, 532 (1921); The Navemar, 303 U. S. 68, 74–75 (1938), this Journal, Vol. 32 (1938), p. 381; Ex parte Peru, 318 U. S. 578, 581 (1942), this Journal, Vol. 38 (1944), p. 132; The Janko, 54 F. Supp. 241, 243 (1944); and the cases cited in notes 21 and 23, above.

30 In response to a request by the Spanish Ambassador for intervention to secure the release of The Navemar, the Department of State replied that its practice in such cases was “to refrain from taking any action which might constitute an interference by the executive authorities of this Government with regard to the merits of the controversy,” a statement which the Supreme Court construed as meaning that the legal questions at issue were “appropriate subjects for judicial inquiry upon proof of the matters alleged.” 303 U. S. 68, 74–75 (1938). In Lament v. Travelers Insurance Co., 281 N. Y. 362, 373–374 (1939), the Department stated, in transmitting a claim of immunity, that “the United States does not intervene as an interested party,” and only presented its suggestion “as a matter of comity between the Government of Mexico and the United States Government for such consideration as the Court may deem necessary and proper.” The Court of Appeals, thus left free to examine the claim, denied the motion to dismiss. Also, Hannes v. Kingdom of Roumania Monopolies Institute, 20 N. Y. Supp. (2d) 825, 828 (1940); Ulen & Co. v. Bank Gospodarstwa Krajowego, 24 N. Y. Supp. (2d), 201, 204; The Katingo Hadjipatera, 1941 A.M.C. 581, 583; The Anghyra, 1941 A.M.C. 1495.

31 See Girardon v. Angelone, above. The confusion and prolongation of litigation which may result from indecision on the part of the State Department in questions relating to claims of immunity may further be illustrated by reference to Sullivan v. State of São Paulo, 36 F. Supp. 503 (E.D.N.Y., 1941), aff’d, 122 F. (2d) 355 (CCA. 2d, 1941), this Journal, Vol. 36 (1942), p. 131; The loannis P. Goulandris, 39 F. Supp. 630 (S.D.N.Y., 1941), rearg., 40 Supp. 924 (1941); and The Maliakos, 41 F. Supp. 697 (S.D.N.Y., 1941). In the São Paulo case, the Department stated that “it is the practice of the Department to leave such questions of immunity for determination by the courts, applying the principles of international law, to the facts and circumstances of the particular cases.” Subsequently, however, it stated that the Department had not intended to indicate that it had “recognized and allowed” the claim, but that transmittal of the claim had “necessarily implied an acceptance, as true, of the statements of fact made by the Brazilian Government”; “the ultimate decision of the question of immunity,” nevertheless, “should be left to the court.” 36 F. Supp. 503, 505. The court by labored exegesis was able to conclude that the Department intended that immunity be granted. Compare, however, The Maliakos, in which the Department “accepted as true” the facts contained in the statement of the claim of immunity. This was intended, the Secretary of State later explained, “to convey the understanding that I recognized as warranted the claim of immunity made by the Greek Minister…” 41 F. Supp. 697, 699.

32 Unpublished, but quoted in extenso in The New York Times (Nov. 11, 1946).

33 Judge Rubin further observed that “Our state and national legislators enjoy a measure of immunity so as to insure the proper functioning of the Congress and of the State Legislators, which falls far short of that measure of immunity contended for on behalf of the personnel of the United Nations, and no valid reason exists why the immunity accorded to the United Nations should be greater in scope than that found necessary to insure the proper functioning of our own Congress.”

This argument is without point, since it is the evident intent of the Immunities Act to confer exemption from suit and from legal process in respect of official acts in all cases, both civil and criminal. The congressional immunity to which Judge Rubin refers provides only that members of Congress, during a session, and in going to or returning from the same, shall be exempt from “arrest,” except in cases of “treason, felony or breach of the peace.” The Supreme Court has held that the expression “breach of the peace” excludes from the constitutional exemption all indictable criminal actions, and that a member of Congress is not, therefore, privileged from arrest for an indictable offense. Williamson v. United States, 207 U. S. 425 (1908). This limits the exemption merely to arrest in aid of civil process, and, in view of the present unimportance of civil arrest, reduces the immunity almost to a nullity. The exemption from civil arrest, moreover, does not confer immunity from the service of civil process. Long v. Ansell, 293 U. S. 76 (1934). The Immunities Act, on the other hand, grants an exemption from “legal process” in cases relating to official acts.

The interpretation which has been placed by the United States courts on congressional immunity from arrest may offer some guidance in construing the provisions of the General Convention that representatives of Members of the United Nations in or to the United Nations (Sec. 11(a)), and experts on mission for the United Nations (Sec. 22(a)), shall enjoy “immunity from personal arrest or detention.” Compare the conflicting interpretations placed by the Department of State and by the French Foreign Office upon the expressions “personal immunity” and “arrest” in the King case (1912) and the case of Princess Zieianoff v. Kahn and Bigelow (1927). Hackworth, Digest of International Law, Vol. IV, pp. 739–745. Compare United States v. Tarcuanu, 10 F. Supp. 445 (S.D.N.Y., 1935), in which it was held that a consul’s “personal immunity from arrest, except in case of crime” involves only immunity from civil arrest, but confers no exemption from civil process. The Supreme Court of Austria in 1928 held that the “personal immunity” of a consul confers no immunity from prosecution and conviction for a criminal offense, but only from arrest and execution. Annual Digest of Public International Law Cases (1927–1928), Case No. 267.

34 Citing Sec. 25, New York Penal Law, which provides: “Ambassadors and other public ministers from foreign governments, accredited to the president and government of the United States, and recognized according to the laws of the United States, with their secretaries, messengers, families and servants, are not liable to punishment in this state, but are to be returned to their own country for trial and punishment.”

35 There are probably no countries, including those which assert an extensive jurisdiction under the principle of active personality, which would undertake to prosecute a national for committing abroad so minor an offense as that charged in the Ranallo case. See Harvard Research in International Law, Jurisdiction with Respect to Crime, this Journal, Vol. 29 (1935), Supplement, pp. 519–527. In an exceptional case, the Bumanian High Court of Cassation and Justice in 1928 upheld the conviction of a former Rumanian commercial attaché for accepting and offering bribes in Italy in connection with government purchases. Silesco v. Ministry of Industry and Commerce, Revue de droit international privé, Vol. 25 (1930), p. 512. The Government of the United States has been disposed to place little reliance upon the possible trial in their home countries of persons charged with the commission of offenses in the United States. Secretary of State Hughes to Ambassador Jusserand, Jan. 21, 1924, Hackworth, Digest of International Law, Vol. IV, p. 59.

36 Judge Rubin’s statement that the question of immunity should not be entrusted “to the whim or caprice of any individual or committee that might speak for the United Nations Organization” appears to be wholly gratuitous in view of this policy, which was restated in the Memorandum presented by Mr. Schachter as follows: “The Secretary-General is aware that even the limited immunity enjoyed by the United Nations entails a serious responsibility to prevent its abuse. He fully recognizes that the existence of an immunity cannot be permitted to countenance willful or reckless violations of the law. To this end, he has directed that strict measures be taken to assure compliance with the laws of the community on the part of all officers and employees of the Organization. The Court may be assured that the violations of local laws, and in particular of laws relating to safety, are viewed most seriously and that appropriate action is taken by the Secretary-General in such cases. These facts are drawn to the attention of the Court so that it may be clearly understood that this statutory immunity based on accepted international law has not operated, and will not operate, to sanction or encourage disregard of the laws of the community.”

There is, furthermore, no reason to believe that this policy will be carried out any less conscientiously by the United Nations than it was by the League of Nations. According to a former member of the League Secretariat, “The waiver of diplomatic rights hung like a permanent threat over the heads of officials who might otherwise have been inclined to abuse their position. It was as a whole sufficient to prevent any tendency to hide behind immunities.” Egon F. Ranshofen-Wertheimer, The International Secretariat, Washington, 1945, p. 266. See also the summary of League practice by a former Legal Adviser of the League Secretariat, H. McKinnon Wood, “Legal Relations between Individuals and a World Organization of States,” Transactions of the Grotius Society, Vol. 30 (1945), pp. 163–164.

37 Mr. Schachter’s Memorandum pointed out that “it may not be irrelevant to call attention to the fact that the immunity involved here is not the same as the broad unrestricted immunity enjoyed by diplomatic officials all over the world. A foreign diplomat, as is well known, cannot be subjected to legal process for any act performed by him, even though such act is performed wholly in a private capacity. Even the family and servants of a diplomatic official enjoy this sweeping immunity. The United Nations, it must be emphasized, has neither requested nor received such unrestricted immunity. Under the law, as already noted, this immunity is limited solely to acts performed by officers of the United Nations acting in their official capacity. A United Nations official engaged in personal and private activities is subject to legal process to the same extent as any private citizen in this country. It is only where, as in the instant case, the official is carrying out his duties, that the immunity is involved. Thus, it can be seen that there is no claim of ‘extra-territoriality’ here; on the contrary, it is an immunity much more limited than that granted traditionally and without question to the hundreds of diplomatic officials in this country.”

38 The United States has accorded diplomatic immunity to the subordinate employees of foreign diplomatic missions, even when they are of American nationality, as is frequently the case. Since such employees are subject solely to the jurisdiction of the United States, they can be prosecuted only if their immunity be waived, or after their diplomatic services have been terminated. See the numerous incidents involving the chauffeurs of diplomatic agents collected in Hackworth, Digest of International Law, Vol. IV, pp. 522–533, and especially the Mahoney case (p. 525); and District of Columbia v. Paris (Police Court, D. C., 1939), this Journal, Vol. 33 (1939), p. 787.

Under the Immunities Act the Government of the United States has an additional safeguard, since it is therein empowered to limit the enjoyment by officers and employees of any privilege, exemption or immunity provided by the Act (Sec. 1), to refuse to accept any person as entitled to the benefits of the Act (Sec. 8(a)), and to withhold such benefits from any person whose “continued presence” in the United States “is not desirable” (Sec. 8(b)). The General Convention, which will supersede inconsistent provisions of the Immunities Act, confers no such exceptional rights upon any Member state. Retention of such rights by the headquarters state would seem to be contrary to the principle of the equality of Members and to the spirit of Sec. 41 of the Draft Agreement, which provides: “This convention/agreement shall be construed in the light of its primary purpose to enable the United Nations at its headquarters in the United States of America, fully and efficiently to discharge its responsibilities and fulfill its purposes.”

39 The General Convention provides that representatives of Members (Sec. 11), and experts on missions for the United Nations (Sec. 22) shall enjoy, in addition to immunity for official acts, “immunity from personal arrest or detention.” By Sec. 19, the Secretary-General and all Assistant Secretaries-General shall, with their families, be accorded diplomatic privileges and immunities. Such immunities are also provided in Section 27 of the Draft Agreement for senior resident representatives of Members designated by their governments with diplomatic rank, and members of their families and staffs. These provisions are probably self-executing, although they do not, of course, extend to any of the above the special protection afforded to members of accredited diplomatic missions by the penal provisions of the Act of April 30, 1790, 22 U.S.C. § 253.

39a Additional protection to the public interest is provided in the resolution adopted by the General Assembly on Feb. 13, 1946, instructing the Secretary-General “to ensure that the drivers of all official motor-cars of the United Nations and all members of the staff, who own or drive motor-cars, shall be properly insured against third party risks.” Doc A/64 (July 1, 1946), p. 33. See Dickinson v. Del Solar [1930], 1 K.B. 376, this Journal, Vol. 23 (1929), p. 858; Norton v. General Accident, Fire and Life Assurance Co. (Eire, High Court, 1940), 74 Ir. L.T.K. (1940), p. 123.

40 Tribunal de paix du XVIe arrondissement de Paris (1935), Receuil général périodique et critique des decisions … relatives au droit international … (1935), Part III, p. 38. For a brief report of President Massé’s lengthly and tempestuous opinion, see Annual Digest and Reports of Public International Law Cases (1935–1937), Case No. 185.

41 See Parlett v. Parlett (1927), in which the Tribunal of First Instance of Geneva held that it had jurisdiction in divorce proceedings against an official of the International Labor Office of British nationality, after the Deputy Director of the ILO had waived the diplomatic immunity which he enjoyed as a member of the first or “extraterritorial” category of officials. Annual Digest of Public International Law Cases (1929–1930), Case No. 207. Compare Assurance Générale des Eaux et Accidents v. F. B. (Court of Civil Justice, Geneva, 1929), in which the court held that it lacked jurisdiction in a civil action against a first category official of the ILO, the Director having asserted, and having declined to waive, the immunity of the defendant. Same, Case No. 206.

42 Note that the Swiss Government, which declined to accord diplomatic immunity to Swiss nationals, expressly agreed, in Art. IX of the Modus Vivendi of 1926, that “Officials of Swiss nationality may not be sued before the local courts in respect of acts performed by them in their official capacity and within the limits of their official duties.” League of Nations, Official Journal, 7th year, No. 10 (Oct., 1926), p. 1422; Hudson, International Legislation, Vol. I, p. 225. This restricted immunity was, in other words, granted to all League staff members, irrespective of their nationality. Officials of the first category, if not of Swiss nationality, enjoyed diplomatic immunity, that is, immunity from civil and criminal jurisdiction, including immunity in respect of private acts. Compare the original Diplomatic Privileges (Extension) Act, 1944 (note 39, above), which granted diplomatic immunities to designated higher officials of international organizations, if not of British nationality, but gave to all other officers “immunity from suit and legal process in respect of things done or omitted to be done in the course of the performance of official duties.” Sec. 1(2) b, and Schedule, Part II(1) and Part III(1). But see the amendment of 1946 (note 39, above). In the “Study on Privileges and Immunities,” annexed to Ch. VII of the Report of the Preparatory Commission of the United Nations (Doc. PC/20, Dec. 21, 1945), p. 62, it is stated that “it will clearly be necessary that all officials, whatever their rank, should be granted immunity from legal process in respect of acts done in the course of their official duties, whether in the country of which they are nationals or elsewhere…” See L. Preuss, “Diplomatic Privileges and Immunities of Agents Invested with Functions of an International Interest,” this Journal, Vol. 25 (1931), pp. 703–707; and Martin Hill, Immunities and Privileges of International Officials: The Experience of the League of Nations (to be published shortly by the Carnegie Endowment for International Peace).

43 See Preuss, L., “Capacity for Legation and the Theoretical Basis of Diplomatic Immunities,” New York University Law Quarterly Review, Vol. 10 (1932–1933), pp. 179–180 Google Scholar; Harvard Research in International Law, Diplomatic Privileges and Immunities, this Journal, Vol. 26 (1932), pp. 97–99.Google Scholar

44 This is stated expressly in Senate Report No. 861, 79th Cong., 1st Sess. (to accompany the bill for the Immunities Act), p. 5: “Under section 7 (b), all officials of international organizations, including American citizens, and representatives of foreign governments therein, would be granted immunity from suit and legal process for acts performed in their official capacity.”

45 Compare the statement by M. Massé, Juge ie paix, in the Avenol case (cited, note 40, above) that acceptance of the defendant’s contentions would be “violemment contraire à toutes les notions du Droit qui péniblement se sont imposées à la conscience humaine depuis les origines barbares et qui sont devenues la charte universelle de toutes les actions civilisées, qu’A. …, placé au-dessus des juges, plus haut que les Chefs d’Etat, … serait dégagé, ainsi au surplus et au même titre que la plus modeste des dactylographes et le plus anodin garçon de bureau de toute responsabilité quelconque …; qu’il n’est donc pas possible que … le Pacte qui régit la plus haute autorité morale et juridique du monde, chargé de fonder le droit des Nations, donne au monde cet exemple décevant de reposer sur un, statut en contradiction aussi flagrante avec le sentiment profond et sacré de la Justice, cette noblesse infinie de l’homme, et qui est inscrit et reste vivant au fond de tous les coeurs; Attendu que le Pacte de la Société des Nations ne mérite pas qu’on lui inflige cette injure. …”

46 Although it would seem to be fully justified on the basis of the passage quoted above, this inference, according to Judge Rubin, is an erroneous one. “It is not the title of the position held that would determine immunity,” he states, “but the nature of the duties being performed at the time of the commission of the offense. Those are the questions that would have to be tried, had the Secretary in the Banollo case not elected to waive immunity.” Letter cited, note 7, above.

47 United Nations, Journal No. 75: Supplement A–64, Add. 1 (Jan. 15, 1947), p. 897.

48 Report of the Joint Subcommittee on the Fifth and Sixth Committees, Doc. A/C.5/99 (Nov. 28, 1946).

49 Docs. A/116 and A/116/Add. 1 (Nov. 9, 1046).

50 “Some Problems of an International Civil Service,” Public Administration Review, Vol. 3 (1943), p. 103.Google Scholar

51 Mr. Jenks suggests that: “In the postwar world there should be a single World Administrative Tribunal … competent in cases in which some official act performed on behalf of an international institution is alleged to violate a private right; in cases in which international institutions are involved in legal relationships governed by municipal law, such as disputes relating to real estate, building contracts, and such matters; and in any case involving the private affairs of officials in respect of which an international should be thought preferable to a national jurisdiction.” Same, pp. 103–104.

52 The proposed Administrative Tribunal, which is modelled upon that established by the League of Nations in 1927, would have jurisdiction over complaints alleging the non-observance of the conditions of appointment of United Nations officials and employees. See Report of the Advisory Committee on a Statute for a United Nations Administrative Tribunal, Doc. A/91 (Oct. 16, 1946),

53 League of Nations Treaty Series, Vol. 41, No. 1719. Also, Art. 16, Convention on Consular Officers, adopted at Havana, Feb. 20, 1928, and Hackworth, Digest of International Law, Vol. IV, p. 738.

54 Harvard Research in International Law, The Legal Position and Functions of Consuls, this Journal, Vol. 26 (1932), Supplement, p. 341.Google Scholar

55 The Draft Agreement with the United States provides in Sec. 38 for settlement of disputes by arbitration or by other mode of settlement agreed upon by the party. Sec. 39 provides for requests for an advisory opinion by the International Court of Justice, and “Pending the receipt of the opinion of the Court, an interim decision of the arbitral tribunal shall be observed by both parties. Thereafter the arbitral tribunal shall render a final decision having regard to the opinion of the Court.” These provisions of the Draft Agreement apply to disputes as to the immunities of resident representatives of Members of the United Nations (Sec. 27), but appear to leave disputes concerning the immunities of officers and employees to be settled by the means provided in the General Convention.

Sec. 29 of the General Convention also provides that “The United Nations shall 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; (b) disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.”

56 It should be noted that the benefits of the Immunities Act have been extended by successive Executive Orders to a wide range of international organizations, in addition to the United Nations, and that the problem of immunity for official acts will arise in connection with all of them. The projected coordination of the privileges and immunities of the United Nations and its specialized agencies, in conformity with the resolution of the General Assembly of Feb. 13, 1946 (Doc. A/64 (July 1, 1946), p. 33), may result in a reduction of the privileged status enjoyed by certain organizations and their personnel now designated under the Act, but it will doubtless not affect the basic immunity for official acts. It will not, of course, apply to designated organizations unrelated to the United Nations, such as the Pan American Union.

The following are the organizations now entitled to the benefits of the Act:

By Executive Order 9698, Feb. 19, 1946, Fed. Reg., Vol. 11, No. 36, p. 39:

The Food and Agriculture Organization

The International Labor Organization

The Pan American Union

The United Nations

The United Nations Relief and Rehabilitation Administration

By Executive Order 9751, July 11, 1946, Fed. Reg., Vol. 11, No. 136, p. 7713:

The Inter-American Coffee Board

The Inter-American Institute of Agricultural Sciences

The Inter-American Statistical Institute

The International Bank for Reconstruction and Development

The International Monetary Fund

The Pan American Sanitary Bureau

By Executive Order 9823, Jan. 24, 1947, Fed. Reg., Vol. 12, No. 19, p. 551:

The Intergovernmental Committee on Refugees

The International Wheat Advisory Committee (International Wheat Council)

By Executive Order 9863, May 31, 1947, Fed. Reg., Vol. 12, No. 108, p. 3559:

The United Nations Educational, Scientific, and Cultural Organization

The International Civil Aviation Organization

The International Telecommunication Union

See Harvard Research in International Law, Diplomatic Privileges and Immunities, this Journal, Vol. 26 (1932), Supplement, p. 98.Google Scholar

58 See note 3, above.

59 “Consular Immunities,” British Yearbook of International Law, Vol. 21 (1944), p. 50.Google Scholar

60 For a review of the jurisprudence of the Administrative Tribunal of the League of Nations and of other League bodies, see McKinnon Wood, work cited (note 36, above), pp. 147–152.

61 But see International Institute of Agriculture v. Profili (Italy, Court of Cassation, 1931), Annual Digest of Public International Law Cases (1929–1930), Case No. 254.

62 See eases collected in Hackworth, AA, Digest of International Law, Vol. IV, pp. 729–735 Google Scholar. Also, Mazzucchi v. Consul-General of the United States in Naples (Italy, Court of Naples, 1930), Annual Digest 1929–1930), Case No. 214; Mazzucchi v. American Consulate (Italy, Court of Appeal of Naples, 1931), Annual Digest (1931–1932), Case No. 186; Little v. Riccio and Fischer (Italy, Court of Cassation, 1934), Annual Digest (1933–1934), Case No. 68. See Beckett, work cited (note 59, above), pp. 38–48 for a full review of cases, treaty provisions, and official statements, and, for earlier cases and national legislation, see Irvin Stewart, Consular Privileges and Immunities, New York, 1926, pp. 147–155. As to the limits of consular immunity for official acts in courts of the United States, see Lyders v. Lund, 32 F. (2d) 308 (N.D. Cal., 1929), and Landley v. Republic of Panama, 31 P. Suppl. 230 (S.D.N.Y., 1940).

63 Compare Section 11(a) which accords a like immunity to representatives of Members to organs of the United Nations and to conferences convened by the United Nations; and Section 12, which further provides that in order to secure for them “complete freedom of speech and independence in the discharge of their duties, the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer the representatives of Members.” It is not clear why a similar provision for survival of immunities for official acts was not accorded to officers and employees under Section 18, and to experts on mission for the United Nations under Section 22. The raison d‘être would be the same in all cases, and the principle has been held to apply to consuls. Dessouki Moustapha v. A. Petroff (Egypt, Mixed Court of Appeal, 1927), Annual Digest (1927–1928, Case No. 268. Diplomatic officers, furthermore, are entitled to continued immunity for official acts after the termination of their functions, although their immunity for private acts lapses. Harvard Research in International Law, Diplomatic Privileges and Immunities, this Journal, Vol. 26 (1932), Supplement, p. 137.

64 See Murphy v. Lee Jortin (France, Civil Tribunal of Dieppe, 1900; Court of Appeal of Eouen, 1900 (two cases)), Clunet, Vol. 27 (1900), pp. 130, 958; Princess Zisianoff v. Kahn, and Bigelow (Correctional Tribunal of the Seine, 1927; Court of Appeal of Paris, 1928), this Journal, Vol. 21 (1927), p. 811; Vol. 23 (1929), p. 172; and united States, to Use of Parravioino v. Brunswick, 69 F. (2d) 383 (App. D. C, 1934). Compare cases involving congressional immunities for official utterances such as Kilbourn v. Thompson, 103 U. S. 168 (1880), and Cochran v. Cousens, 42 F. (2d) 783 (App. D. C., 1930).

65 H. McKinnon Wood, work cited (note 36, above), p. 162.