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Published online by Cambridge University Press: 27 February 2017
1 26 Dept. of State Bulletin 984 (1952).
2 22 U.S.C. 288 a (b).
3 UNCIO Docs., Vol. 13, pp. 778-780.
4 General Assembly Ees. 22A(I), Feb. 13, 1946.
5 It is to be noted that, although the Immunities Act provides that international organizations should enjoy the same immunity from suit as foreign governments, it also provides that the immunity may be waived only expressly by contract or for the purpose of any proceeding. Cf. the Modus Vivendi between the International Labor Organization and the Swiss Government which accords the I.L.O. immunity from process “sauf dans la mesure où cette immunité a été forrnellement levée par le Directeur du Bureau Internationale du Travail on son représentant réguliérement autorisé.” See Lalive, L’immunité de juridiction des Btats et des Organisations Internationales 350 (1953).
6 191 Misc. 229, 77 N.Y.S. 2d 206 (1947), aff’d without opinion, 88 N.Y.S. 2d 924 (1949).
7 New York Law Journal, Jan. 19, 1956.
8 National City Bank v. Republic of China, 348 U. S. 356 at 360 (1955); digested in 49 A.J.I.L. 405 (1955).
9 UNCIO Docs., Vol. 13, p. 780.
10 An Argentinian labor court in Buenos Aires considered itself competent with respect to the claim of an employee of the United Nations Information Center, who was separated from service at the end of his six-month appointment and who sued for termination indemnity payable under local law. During the proceedings, Argentina acceded to the Convention on Privileges and Immunities, and the court, having been so informed by the Public Prosecutor, thereupon declared itself without jurisdiction. In an earlier stage of the same case, the labor court had denied its jurisdiction pursuant to advice by the Federal Public Prosecutor that Articles 104 and 105 of the Charter leave “no option but to regard the defendant organization as enjoying a special status under which it can claim immunity from the jurisdiction of the ordinary courts.” The plaintiff resubmitted the case, however, and the court thereupon decided that it was competent and passed judgment in favor of the plaintiff, notwithstanding the opinion of the Public Prosecutor on the self-executing character of Article 105. Procedural questions unrelated to the immunity question delayed further proceedings and Argentina acceded to the Convention on Privileges and Immunities during this period. Bergareche v. United Nations Information Center; see Annual Reports of the Secretary General, 1955-1956, General Assembly, 11th Sess., Official Records, Supp. No. 1, p. 106; 1956-1957, ibid., 12th Sess., Supp. No. 1, p. 124. It must be noted that the Court's reluctance to concede the Organization's immunity stemmed from a decision of the Argentine Supreme Court in an earlier case involving a similar claim, but in which the Organization's immunity was not asserted in the first instance. Schuster v. United Nations Information Center—Buenos Aires; see Lalive, cited above, p. 130; Annual Reports of the Secretary General, 1951-1952, General Assembly, 8th Sess., Official Records, Supp. No. 1, p. 165; 1952-1953, ibid., p. 149.
11 See Annual Report of the Director of the U.N. Relief Works Agency for Palestine Refugees in the Near East, 1953-1954, ibid., Supp. No. 17, p. 30.
12 A labor tribunal issued a default judgment against UNRWA awarding termination indemnities to a former employee of the Agency. The Ministry of Foreign Affairs forwarded the judgment to the Agency, who advised the Ministry of its views on the inapplicability of the Lebanese Labor Code and the matter was not raised again. Annual Report of the Secretary General, 1953-1954, ibid., Supp. No. 1, p. 106. Lebanon has been a party to the General Convention on the Privileges and Immunities of the United Nations since 1949.
13 Prior to Jordan’s membership in the United Nations and its accession to the General Convention, a magistrate’s court gave judgment in default to a former employee for damages. The Agency’s funds in a Jordanian bank were attached in satisfaction of the judgment. Ibid. The Agency has, as of the end of 1957, received no satisfaction on its protest with respect to this assumption of jurisdiction and execution on its assets. See Annual Report of the Director of UNRWA, 1955-1956, ibid., 11th Sess., Supp. No. 14, p. 40.
14 In 1953, the Director of UNRWA reported that notwithstanding the Syrian Ministry of Justice communiqué recognizing the judicial immunity of the Agency, Syrian tribunals continued rendering judgments in favor of Palestinian refugees for compensation on dismissal from service with UNRWA. However, execution of the judgments was stayed and the matter amicably settled. Annual Reports of the Director of UNRWA for the years 1952-1953, General Assembly, 8th Sess., Official Records, Supp. No. 12, pp. 25-26; 1955-1956, ibid., 11th Sess.,Supp. No. 14, p. 41. Syria became a party to the General Convention in 1953.
15 A suit under the Egyptian Labor Code was stayed as a result of the Egyptian Government’s advising judicial bodies of the Agency’s immunity. The matter was referred to an ad hoc Appeals Board within the Agency and subsequently appealed to the U.N. Administrative Tribunal. See Annual Report of the Director of UNRWA 1952-1953, cited above, p. 26; Annual Report of the Secretary General, 1953-1954, cited above, p. 107; U.N. Administrative Tribunal Judgments, Nos. 57 (competence of Tribunal), 63 and 65 (merits). It is to be noted that in this case, as well as in a subsequent case arising out of termination in Egypt, the Administrative Tribunal noted that the Agency took Egyptian law on termination indemnities into account in calculating the staff members' indemnities. See U.N. Administrative Tribunal Judgments 63 (1956) and 70 (1957).
16 See Allen, The Position of Foreign States before International Courts 221 (1933); Lauterpacht, “The Problem of Jurisdictional Immunities of Foreign States,” 28 Brit. Year Book of Int. Law 251-254 (1951).
17 UNCIO Docs., Vol. 3, pp. 343-344.
18 The Legal Adviser of the State Department, in a letter replying to a question on the applicability of reciprocity to categories of persons mentioned in the Convention on Privileges and Immunities, wrote: “It seems clear that the Charter of the United Nations does not permit the imposition of conditions of reciprocity on the granting of privileges under Article 105. Indeed the purpose of the Charter in respect of Article 105 is to provide for the granting unconditionally by member states of certain privileges and immunities to the United Nations so that it may function effectively as a world organization untrammeled in its operation by national requirements of reciprocity or national measures of retaliation among states.” Letter dated April 29, 1948, Structure of the United Nations, Hearings before Committee on Foreign Affairs, House of Representatives, 80th Cong., 2nd Sess., p. 509.
19 Lauterpacht, loc. cit., p. 228.
20 See General Assembly Res. 22 E (I).
21 Wilfred Jenks wrote in 1943 that: “In the postwar world there should be a single World Administrative Tribunal which should exercise jurisdiction over such complaints [alleging the non-observation of conditions of employment by officials]. It should also be 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, printing contracts, and such matters; … in the interest of a proper integration of the world judicial institutions of the future, the World Administrative Tribunal should have an organic relationship with the Permanent Court of International Justice.” W. Jenks, “Some Problems of the International Civil Service,” 3 Public Administrative Review 104 (1943). Arthur Kuhn said in 1944: “It would be too much to expect the immediate establishment of an international system of regional or local courts. … It is therefore important that the immunities granted to such agencies be accompanied by recourse to some systems of local arbitral tribunals in which protection may be accorded to private as well as public interests.” A. K. Kuhn, “Status of International Organizations,” 38 A.J.I.L. 658, at 667 (1944); see also comment, “The United Nations under American Municipal Law: a Preliminary Assessment,” 55 Tale Law Journal 778, at 785-786 (1946), suggesting that the United Nations be required to set up a claims court or arbitration machinery for civil actions by aggrieved parties.
22 At its 1957 meeting (the proceedings of which are not yet available), the Institute of International Law, in a resolution on private interests in relation to international organizations, considered it desirable that the I.C.J, should decide grievances based on the lack of competence or grave irregularities of procedure of judicial or arbitral organs. See resolution II (III) set forth in 52 A.J.I.L. 103, at 106 (1958).