yearbook international law commission 1969yearbook of the international law commission, 1969, vol....

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1969Volume II

Documents of the twenty-first sessionincluding the report of the Commission

to the General Assembly

U N I T E D N A T I O N S

YEARBOOK

OF THE

INTERNATIONAL

LAW COMMISSION

1969Volume II

Documents of the twenty-first sessionincluding the report of the Commission

to the General Assembly

UNITED NAT IONSN e w Y o r k , 1 9 7 0

NOTE

Symbols of United Nations documents are composed of capital letters combinedwith figures. Mention of such a symbol indicates a reference to a United Nationsdocument.

A/CN.4/SER. A/1969/Add. 1

UNITED NATIONS PUBLICATION

Sales number: E.70 V. 8

Price: $U.S. 3.50(or equivalent in other currencies)

CONTENTS

Page

RELATIONS BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS (agenda item 1)Document A/CN.4/218 and Add.I: Fourth report on relations between States and inter-

national organizations, by Mr. Abdullah El-Erian, Special Rapporteur 1

SUCCESSION OF STATES AND GOVERNMENTS (agenda item 2)

(a) SUCCESSION IN RESPECT OF TREATIES

Document AjCN.4/210: Succession of States to multilateral treaties: sixth study preparedby the Secretariat 23

Document A/CN.4/214 and Add.l and 2: Second report on succession in respect of treaties,by Sir Humphrey Waldock, Special Rapporteur 45

(b) SUCCESSION IN RESPECT OF MATTERS OTHER THAN TREATIES

Document A/CN.4/216/Rev.l: Second report on succession in respect of matters otherthan treaties, by Mr. Mohammed Bedjaoui, Special Rapporteur—Economic andfinancial acquired rights and State succession 69

STATE RESPONSIBILITY (agenda item 3)Document A/CN.4/208: Supplement, prepared by the Secretariat, to the "Digest of the

decisions of international tribunals relating to State responsibility" 101Document A/CN.4/209: Proposals submitted to, and decisions of, various United Nations

organs relating to the question of State responsibility: supplement prepared by theSecretariat to document A/CN.4/165 114

Document A/CN.4/217 and Add.l: First report on State responsibility, by Mr. RobertoAgo, Special Rapporteur—Review of previous work on codification of the topic ofthe international responsibility of States 125

MOST-FAVOURED-NATION CLAUSE (agenda item 4)Document A/CN.4/213: First report on the most-favoured-nation clause, by Mr. Endre

Ustor, Special Rapporteur 157

CO-OPERATION WITH OTHER BODIES (agenda item 5)Document A/CN.4/212: Report on the tenth session of the Asian-African Legal Consul-

tative Committee, by Mr. Abdul Hakim Tabibi, Observer for the Commission . . . 187Document A/CN.4/215: Report on the 1968 meeting of the Inter-American Juridical

Committee, by Mr. Jose Maria Ruda, Observer for the Commission 196

OTHER BUSINESS (agenda item 8)Document A/CN.4/219: Letter dated 3 June 1969 from the Secretary-General to the

Chairman of the International Law Commission 201

REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY

Document A/7610/Rev.l: Report of the International Law Commission on the work ofits twenty-first session, 2 June-8 August 1969 203

CHECK LIST OF DOCUMENTS REFERRED TO IN THIS VOLUME 239

CHECK LIST OF DOCUMENTS OF THE TWENTY-FIRST SESSION NOT REPRODUCED IN THIS VOLUME 241

RELATIONS BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS

[Agenda item 1]

DOCUMENT A/CN.4/218 AND ADD.l *

Fourth report on relations between States and international organizations,by Mr. Abdullah EI-Erian, Special Rapporteur

[Original text: English]

[12 May 1969]

Paragraphs

1-6

7-9

Page

3

3

3

CONTENTS

I. INTRODUCTION

A. The basis of the present report

B. Summary of the Commission's discussions at its twentieth session . . .

C. Summary of the Sixth Committee's discussion at the twenty-third sessionof the General Assembly on the question of relations between States andinternational organizations 10-12 5

D. Summary of the Sixth Committee's discussion at the twenty-third sessionof the General Assembly on the draft Convention on Special Missions . . 13-21 5

E. The scope and the arrangement of the present group of draft articles . . 22-25 7

II. DRAFT ARTICLES ON THE LEGAL POSITION OF REPRESENTATIVES OF STATES TOINTERNATIONAL ORGANIZATIONS WITH COMMENTARIES 7

Part II. Permanent missions to international organizations (continued) . . . 7

Section II. Facilities, privileges and immunities 7

General comments 7

Article 22. General facilities 9

Article 23. Accommodation of the permanent mission and its members 9

Commentary 9

Article 24. Inviolability of the premises of the permanent mission . . . 9

Article 25. Exemption of the premises of the permanent mission fromtaxation 9

* Incorporating documents A/CN.4/218/Corr.l, 2 and 3/Rev.l.

1

Yearbook of the International Law Commission, 1969, Vol. II

CONTENTS (continued)

Article 26. Inviolability of archives and documentsCommentary

Article 27. Freedom of movementCommentary

Article 28. Freedom of communication

Commentary

Article 29. Personal inviolability

Article 30. Inviolability of residence and property

Commentary

Article 31. Immunity from jurisdiction

Article 32. Waiver of immunityCommentary

Article 33. Consideration of civil claimsCommentary

Article 34. Exemption from social security legislationCommentary

Article 35. Exemption from dues and taxesCommentary

Article 36. Exemption from personal servicesCommentary

Article 37. Exemption from customs duties and inspectionCommentary

*J Article 38. Acquisition of nationalityCommentary

Article 39. Persons entitled to privileges and immunitiesCommentary

Article 40. Nationals of the host State and persons permanently residentin the host StateCommentary

Article 41. Duration of privileges and immunitiesCommentary

Article 42. Duties of third StatesCommentary

Article 43. Non-discriminationCommentary

Section HI. Conduct of the permanent mission and its members

Article 44. Obligation to respect the laws and regulations of the hostStateCommentary

Article 45. Professional activityCommentary

Section IV. End of the function of the permanent representative

Article 46. Modes of termination

Commentary

Article 47. Facilities for departure

Article 48. Protection of premises and archivesCommentary

Article 49. Consultations between the sending State, the host State andthe OrganizationCommentary

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Relations between States and international organizations

I. Introduction

A. THE BASIS OF THE PRESENT REPORT

1. At the twentieth session of the Commission in 1968,the Special Rapporteur submitted a third report' con-taining a set of draft articles, with commentaries, on thelegal position of representatives of States to internationalorganizations and conferences. Those draft articles weredivided into the following four parts:

Part I. General provisions;Part II. Permanent missions to international orga-

nizations;Part III. Delegations to organs of international orga-

nizations and to conferences convened byinternational organizations;

Part IV. Permanent observers from non-memberStates to international organizations.

2. As stated by the Special Rapporteur in the generalcomments with which he prefaced pans III and IV ofhis third report, the draft articles contained in thesetwo parts (articles 47-52 and articles 53-56 respectively)were presented in a tentative form with a view to enablingthe Commission to decide the preliminary questionwhether its draft articles on representatives of States tointernational organizations should be confined to per-manent missions to international organizations, orshould be broadened in scope to include delegations toorgans of international organizations and to conferencesconvened by international organizations, as well as per-manent observers of non-member States to internationalorganizations.

3. At its 986th meeting, on 31 July 1968, the Commissionadopted a provisional draft of twenty-one articles, withthe Commission's commentary to each aiticle.2 Thefirst five articles form part I (General provisions). Theycover: the use of terms, the scope of the articles, theirrelationship to the relevant rules of international orga-nizations and to other existing international agreementsand derogation from the rules. The remaining articlesmake up the first section of part II (Permanent missionsto international organizations). This section is entitled"Permanent missions in general". It regulates the follow-ing questions: establishment of permanent missions;functions of a permanent mission; accreditation to two ormore international organizations and other related situa-tions; appointment of the members of the permanentmission and their nationality; credentials of the permanentrepresentative, his accreditation to organs of the organiza-tion and his full powers to represent the State in theconclusion of treaties; composition of the permanentmission and its size; notifications; charges d'affaires;precedence; missions' offices and the use of the flag andemblem.

4. In accordance with articles 16 and 21 of its statute,the Commission decided to transmit the provisional

draft of twenty-one articles, through the Secretary-General, to Governments for their comments.3

5. In connexion with the examination of the provisionaldraft of twenty-one articles adopted by the Commissionat its twentieth session, suggestions were made to theSpecial Rapporteur that he prepare additional articlesrelating to permanent missions to international organiza-tions. Some members of the Commission proposed aprovision on consultations between the host State, theorganization concerned and the sending State. Thepurpose of the consultations in question would be toprovide remedies for difficulties which may arise as aresult ot the non-application, between States members ofinternational organizations and between States membersand the organizations, of rules of inter-State bilateraldiplomatic relations regarding agrement, the declaring ofa diplomatic agent as persona non grata and reciprocity.In preparing the present revised text of the draft articles,the Special Rapporteur has also taken into considerationthe views expressed on the subjects of delegations toorgans of intei national organizations and to conferencesconvened by international organizations and of observersfrom non-member States appointed to internationalorganizations in the course of the general discussion whichpreceded the examination of the draft articles by theCommission at its twentieth session. These suggestionsand views are summarized in section B of this intro-duction.

6. Since the time when the Special Rapporteur's thirdreport was considered by the Commission, discussionson the "Report of the International Law Commission onthe work of its twentieth session" and on the "DraftConvention on Special Missions" have taken place inthe Sixth Committee during the twenty-third session ofthe General Assembly. The discussions touched on anumber of questions which relate to representatives ofStates to international organizations and conferences.The Special Rapporteur has deemed it appropriate toinclude a summary of those discussions in sections Cand D of the introduction to the present report.

B. SUMMARY OF THE COMMISSION'S DISCUSSIONSAT ITS TWENTIETH SESSION

7. Remedies for the host State. This question was dis-cussed by the Commission in connexion with its examina-tion of articles 9 and 14, as presented in the SpecialRapporteur's third report. Article 9, which was entitled"Appointment of the members of the permanent mission",provides that "The sending State may freely appoint themembers of the permanent mission". Unlike the relevantarticles of the Vienna Convention on Diplomatic Rela-tions4 and the draft articles of the International LawCommission on special missions,5 article 9 did not makethe freedom of the sending State in the choice of the

1 Yearbook of the International Law Commission, 1968, vol. II,document A/CN.4/203 and Add. 1-5, p. 119.

a Ibid., document A/7209/Rev.l, p. 194, para. 21.

» Ibid., p. 195, para. 22.* United Nations, Treaty Series, vol. 500, p. 96.11 Yearbook of the International Law Commission, 1967, vol. II,

document A/6709/Rev.l and Rev.l/Corr.l, pp. 347 et seq.


members of its permanent mission to an internationalorganization subject to the agrement of the host Statefor the appointment of the permanent representative orhead of the permanent mission. Nor did article 9 makesuch freedom of choice subject to the right of the hostState to notify the sending State that the head of thepermanent mission or any member of the diplomaticstaff of the mission is persona non grata. The reasonswere stated by the Special Rapporteur in paragraph (2)of the commentary to article 9 6 to be that:

The members of the permanent mission are not accredited tothe host State in whose territory the seat of the organization issituated. They do not enter into direct relationship and transactionswith the host State, unlike the case of bilateral diplomacy. In thelatter case, the diplomatic agent is accredited to the receivingState in order to perform certain functions of representation andnegotiation between the receiving and his own State. This legalsituation is the basis of the institution of acceptance by the receivingState of the diplomatic agent {agrement) and of the right of thereceiving State to request his recall when it declares him persona nongrata.

The basic principle underlying the freedom of the sendingState in the choice of the members of its permanentmission to an international organization, as reflected bythe Special Rapporteur in article 9, was accepted by theCommission. Several members stated that the right of asending State freely to appoint the members of a per-manent mission was an essential concept of the law ofinternational organizations. Some members pointed out,however, that the host State might need some protection,and that they assumed, therefore, that before com-pleting the draft articles, the Commission would insertthe necessary provisions to ensure that protection.7

Article 14 of the Special Rapporteur's draft, which wasentitled "Size of the permanent mission", provided that:

The sending State should observe that the size of its permanentmission does not exceed what is reasonable and normal, havingregard to the circumstances and conditions in the host State, andto the needs of the particular mission and the organizationconcerned.

Paragraph (5) of the Special Rapporteur's commentaryto this article contained the following statement:

Article 14... does not provide that the host State or the organiza-tion may require that the size of the mission be kept within certainlimits or that they may refuse to accept a size exceeding thoselimits, a prerogative which was recognized to the receiving Stateunder article 11, paragraph 1, of the Vienna Convention on Diplo-matic Relations. Unlike the case of bilateral diplomacy, the membersof permanent missions to international organizations are notaccredited to the host State. Nor are they accredited to the inter-national organization in the proper sense of the word. As will beseen in different parts of these draft articles, remedy for the griev-ances which the host State of the organization may have againstthe permanent mission or one of its members cannot be soughtin the prerogatives recognized to the receiving State in bilateraldiplomacy, prerogatives which flow from the fact that diplomaticenvoys are accredited to the receiving State and from the latter'sinherent right in the last analysis to refuse to maintain relations

with the sending State. In the case of permanent missions to inter-national organizations, remedies must be sought in consultationsbetween the host State, the organization concerned and the sendingState, but the principle of the freedom of the sending State in thecomposition of its permanent mission and the choice of its membersmust be recognized.8

Some members of the Commission expressed the opinionthat the provision concerning consultations should notonly be stated in the commentary but should also beembodied in the draft article itself (article 14). Theypointed out that the rule as stated in article 14 might bedescribed as lex imperfecta, since it stated the obligationof the sending State but said nothing about what wouldhappen in the event of the sending State failing to abideby that rule.9 This suggestion was referred to the DraftingCommittee. Other members thought that the provisionconcerning consultations deserved serious considerationand should be embodied, in some appropriate place, inthe draft articles themselves. The Drafting Committeedecided not to include a provision on consultations inarticle 14. The text as agreed on in the Drafting Com-mittee was adopted by the Commission with the tacitunderstanding that the Special Rapporteur would preparefor the consideration of the Commission a provision ofgeneral application on the question of consultationsbetween the sending State, the host State and the orga-nization. This understanding was reflected in a statementby the Special Rapporteur to the effect that the Com-mission was going to consider a general provision forinclusion at the end of the draft concerning remediesavailable to the host Slate.10

8. Delegations to organs of international organizationsand to conferences. On the treatment of this questionwithin the framework of these articles opinion in theCommission was divided.11 Some members thought thatthe draft should be confined to permanent missions andthat it would be preferable to leave aside the question ofdelegations to organs of international organizations andto conferences. They suggested that the Commissionshould take something firm and concrete as a startingpoint and see later whether it should venture further.In support of this view one member pointed out thatconferences could be regarded as temporary organizationsso that the topic of conferences would form part of thediplomatic law of organizations themselves. The subjectof delegations to organs was difficult to codify in viewof the great differences between organizations and be-tween their organs. Other members took issue with sucha restrictive definition of the scope of the draft. Theymaintained that the Commission should encourage theSpecial Rapporteur to submit draft articles on delegationsto organs of international organizations and to con-ferences. Intermediate positions were also reflected in thediscussion. One of them was that the Commission wouldprobably have to concern itself with delegations sentto sessions of international organizations, but it was

• Yearbook of the International Law Commission, 1968, vol. II,document A/CN.4/203 and Add.1-5, p. 135.

7 Ibid., vol. I, 953rd meeting, p. 58.

8 Ibid., vol. II, document A/CN.4/203 and Add.1-5, p. 142.' Ibid., vol. I, 958th and 959th meetings, pp. 87-99.10 Ibid., 984th meeting, p. 233.11 Ibid., 943rd-945th meetings, pp. 3-20.


doubtful whether the draft should cover delegations sentto conferences convened by international organizations.One member stated that there was an international lawof diplomatic conferences, which applied to conferencesconvened by States no less than to conferences convenedby international organizations. He concluded that recentdevelopments of that subject seemed to require thatrepresentatives to conferences be dealt with as a separatetopic. Another member expressed the view that a distinc-tion should be made between conferences convened byinternational organizations and other conferences. Ac-cording to that view, which was supported by one ortwo more members, theoretical and practical considera-tions required the Commission to deal at once with thelegal position of delegations to conferences held withinor convened by international organizations. Other con-ferences were not connected with international organiza-tions, and the Commission would be going beyond thelimits of its subject (relations between States and inter-governmental organizations) if it concerned itself withthem.

9. The decision of the Commission on this question wasrecorded in paragraph 28 of its report on the work of itstwentieth session,12 where it is stated:

Some members of the Commission were of the opinion that thescope of the draft articles should be confined to permanent missionsto international organizations. In his third report the Special Rap-porteur had included a number of articles on delegations to organsof international organizations and to conferences convened byinternational organizations and on permanent observers of non-member States to international organizations (parts III and IV).The Commission was of the opinion that no decision should betaken on that question until it had an opportunity to considerthose articles. If the Committee were to decide to cover those twosubjects in the draft articles, the title of the draft articles wouldhave to be changed.

observers from non-member States to internationalorganizations".13

11. Several representatives noted that the InternationalLaw Commission had expressed the intention of consider-ing at a future session whether rules concerning delega-tions to organs of international organizations and toconferences convened by international organizationsshould be included in the draft articles. Some of thoserepresentatives expressed the opinion that that "shouldbe done because the absence of such rules in the draftarticles would leave an unfortunate gap".14 One delega-tion stated that it was looking forward with interest toa decision on that subject, and that accordingly it wouldseem premature to consider extending the scope of thedraft convention on special missions to "delegations tosessions of organs of international organizations and toconferences convened by international organizations".Another delegation thought, however, that no decisionshould be taken on whether to include articles on delega-tions to organs and conferences of international orga-nizations, since that question could be clarified in thework on special missions.15

12. Some representatives expressed the view that theCommission should take up the question of permanentobservers from non-member States to internationalorganizations. They maintained that this question wasparticularly urgent inasmuch as it had often been dealtwith on a partisan and discriminatory basis.18 Theyrecalled 17 that in the study prepared by the Secretariaton the practice of the United Nations, the specializedagencies and the International Atomic Energy Agencyconcerning their status, privileges and immunities,18 theSecretariat had stated that neither the Charter nor theHeadquarters Agreement nor the resolutions of theGeneral Assembly contained any information on thestatus of observers.19

C. SUMMARY OF THE SIXTH COMMITTEE'S DISCUSSION ATTHE TWENTY-THIRD SESSION OF THE GENERAL ASSEMBLYON THE QUESTION OF RELATIONS BETWEEN STATES ANDINTERNATIONAL ORGANIZATIONS

10. The Sixth Committee considered the item entitled"Report of the International Law Commission on thework of its twentieth session" at its 1029th to 1039thmeetings, held from 3 to 15 October 1968. Most of theobservations on chapter II of the International LawCommission's report related to the twenty-one draftarticles which are contained in that chapter and whichconstitute the first unit of the set of draft articles whichthe Commission intends to submit on relations betweenStates and international organizations. Some represen-tatives raised two further questions not covered in thetwenty-one draft articles. The first was the question ofdelegations to sessions of organs of international organiza-tions and to conferences convened by internationalorganizations. The second was the "question of permanent

D. SUMMARY OF THE SIXTH COMMITTEE'S DISCUSSION ATTHE TWENTY-THIRD SESSION OF THE GENERAL ASSEMBLYON THE DRAFT CONVENTION ON SPECIAL MISSIONS

13. The Sixth Committee considered the item entitled"Draft Convention on Special Missions" at its 1039thto 1059th and 1061st to 1072nd meetings, held between15 October and 15 November 1968 and at its 1087thto 1090th meetings, held on 5, 6 and 9 December 1968.In the course of the consideration of some of the articlesof the draft convention, the discussion touched on therelationship between those articles and the subject of

1S Ibid., vol. II, document A/7209/Rev.l, pp. 195 and 196.

13 Official Records of the General Assembly, Twenty-third Se.ssion,Annexes, agenda item 84, document A/7370, para. 18.

14 Ibid., para. 36.18 Ibid., Twenty-third Session, Sixth Committee, 1032nd meeting." Ibid., Twenty-third Session, Annexes, agenda item 84, document

A/7370, para. 37." Ibid., Twenty-third Session, Sixth Committee, 1033rd meeting.18 Hereinafter referred to as "Study by the Secretariat", Year-

book of the International Law Commission, 1967, vol. II, documentsA/CN.4/L.118 and Add.l and 2, p. 154.

" Ibid., p. 190, para. 169, sub-para. 2.


delegations to organs of international organizations andto conferences. A number of suggestions and amendmentswere submitted which have a bearing on that subject andin particular on the extent of the privileges and immu-nities to be accorded to representatives of States withinthe framework of ad hoc diplomacy, whether bilateral(special missions) or multilateral (organs of internationalorganizations and international conferences).

14. Article 6: "Sending of special missions by two or moreStates in order to deal with a question of common interest".This article as drafted by the International Law Com-mission provided that: "Two or more States may eachsend a special mission at the same time to another Statein order to deal, with the agreement of all of them, witha question of common interest." Several representativesstated that, although they had no objection to the sub-stance of the text proposed by the International LawCommission, they nevertheless had misgivings as to itsapplication.20 They pointed out that the wording ofarticle 6 seemed to contradict the contents of paragraph 17of the historical background section preceding the draftarticles, where it was stated that most of the members ofthe Commission had expressed the opinion that for thetime being the terms of reference of the Special Rappor-teur on Special Missions should not cover the questionof delegates to congresses and conferences. In stressingthe ambiguity of article 6, some representatives notedthat the text failed to give a clear answer to the questionwhether the draft articles applied to delegates to inter-national conferences convened by States. They statedthat, if it was desired to retain the idea set forth by theCommission in the historical introduction, the questionarose, in connexion with the application of article 6,where the distinction should be drawn between specialmissions, to which the draft would apply, and delegatesto international conferences convened by States, to whichit would not apply. They considered that the precisescope of article 6 must be made clear. Reference wasmade to the comments of the Austrian and SwedishGovernments.21 In the view of the Austrian Government,"this article should clearly state if and to what extentthe present draft articles shall apply to delegations tocongresses and conferences convened by States"; whilethe Swedish Government had wondered which were thespecial cases provided for in article 6, since it was obviousfrom the commentary of the International Law Com-mission that the article had not been included in the draftin order to extend the scope of the proposed Conventionto delegates to international conferences in general.

15. Another view was, however, expressed to the effectthat it was obvious that the draft articles did not applyto delegates to international conferences convened byStates, since such delegates could not be regarded asmembers of missions "to another State". The repre-sentative who expressed this view stated that his countryavailed itself of the opportunity to express the hopethat the status of delegates to international conferences

convened by States would be regulated as soon as pos-sible. In line with this trend of thought another represen-tative suggested the inclusion in the draft, at a later stage,of an article which would deal in detail with the conveningof ad hoc conferences.

16. The Expert Consultant (the Special Rapporteur onSpecial Missions) stated at the 1045th meeting of theSixth Committee22 that article 6 was designed to covercases of ad hoc diplomacy on subjects of common interestto a limited number of States, which could not be sub-sumed under the heading of collective diplomacy. Thetopics dealt with in such cases were not wide enough forconsideration by international conferences and wereoften subjects of local interest only. The Commissionhad agreed that such cases should be regarded asrelating more closely to the subject of special missionsthan to that of international conferences. The Com-mission had felt, the Expert Consultant continued,that the codification of the rules pertaining to suchcases under the heading of special missions would beuseful because it would provide for the settlement ofquestions of common interest to a limited number ofStates without the cumbersome arrangements normallyrequired for an international conference.

17. The drafting committee of the Sixth Committeedecided to retain the principle set forth in article 6 butto redraft the International Law Commission's text soas to make it clearer. The text of article 6 as adopted bythe Sixth Committee at its 1089th meeting is worded asfollows:

Two or more States may each send a special mission at the sametime to another State, with the consent of that State obtained inaccordance with article 2, in order to deal together, with the agree-ment of all of these States, with a question of common interestto all of them.23

18. A single set or different sets of privileges and immunitiesfor different categories of special missions. When the SixthCommittee began consideration of part II of the DraftConvention on Special Missions, which is entitled"Facilities, Privileges and Immunities", an extensivediscussion took place on whether there should be one ormore regimes according to a distinction between thedifferent kinds of special missions.

19. Article 21 prepared by the International Law Com-mission provided that:

1. The Head of the sending State, when he leads a specialmission, shall enjoy in the receiving State or in a third State, inaddition to what is granted by these articles, the facilities, privilegesand immunities accorded by international law to Heads of State onan official visit.

2. The Head of the Government, the Minister for ForeignAffairs and other persons of high rank, when they take part in aspecial mission of the sending State, shall enjoy, in the receivingState or in a third State, in addition to what is granted by thesearticles, the facilities, privileges and immunities accorded byinternational law.

20 Official Records of the General Assembly, Twenty-third Session,Sixth Committee, 1044th meeting.

21 Ibid., Twenty-third Session, Annexes, agenda item 85, documentA/7156 and Add.l and 2, pi 2, para. 6, and p. 7, para. 6.

u Ibid., Twenty-third Session, Sixth Committee, 1045th meeting.M Ibid., Twenty-third Session, Annexes, agenda item 85, document

A/7375, para. 141.


In paragraph 1 of the commentary on this article, theInternational Law Commission stated that it had "con-sidered on several occasions whether there should not bea special regime for so-called 'high-level' missions, i.e.missions whose members include persons of high ranksuch as a Head of State, a Head of Government, or aMinister for Foreign Affairs. After a careful study of thematter, the Commission concluded that the rank of thehead or members of a special mission does not give themission any special status. In international law, however,rank may confer on the person holding it exceptionalfacilities, privileges and immunities which he retains onbecoming a member of a special mission."

20. One delegation stated that the Commission articlesshould be applied to "ministerial" special missions,while an alternative regime could be applied to other,"standard", special missions.24 It suggested that the scalegiven in the Convention on Privileges and Immunitiesof the Specialized Agencies (Functional immunities)should be selected for "standard" special missions, i.e.those not led by the highest officers of the State.25 Somedelegations expressed the view that the criterion of theperson at the head of the mission was a purely formal andrather arbitrary criterion which did not take into accountthe importance of the mission's task, though that shouldbe the determining factor. Several delegations supportedthe basic approach of part II of the draft Convention onSpecial Missions as adopted by the Commission. Theyexpressed themselves in favour of a uniform regime ofprivileges and immunities to be applied to special missions.

21. Proposal for a new article on conferences. The delega-tion of the United Kingdom suggested the inclusion inthe draft Convention on Special Missions of a provisionpertaining to conferences. It submitted an amendment(A/C.6/L.704) which would add a new article (article 0,entitled Conferences') before article 48 in the existingpart III of the draft articles. The new draft article wouldread as follows:

1. A State may apply the provisions of part II or part III of thepresent articles, as appropriate, in respect of a conference attendedby representatives of States or Governments which is held in itsterritory and which is not governed by similar provisions in anyother international agreement.2. Where a State applies the provisions of paragraph 1 of thisarticle in respect of a conference held in its territory, officials ofthe secretariat of that conference shall:

(a) Be immune from legal process in respect of words spokenor written and all acts performed by them in their official capacity;

(b) Unless they are nationals or permanent residents of the receiv-ing State, enjoy exemption from taxation on the emoluments paidto them in respect of their services to the conference;

(c) Be immune from immigration restrictions and from aliens'registration;

(d) Be accorded the treatment in matters of exchange controlwhich is accorded in the receiving State to a diplomatic agent ofthe State of which the official concerned is a national;

(e) Be given the same repatriation facilities as members ofdiplomatic missions of comparable rank;

(/) Have the right to import free of duty the personal baggageaccompanying them at the time of first arriving in the receivingState to take up their duties in connexion with the conference.3. Where a State applies the provisions of paragraph 1 of thisarticle in respect of a conference held in its territory, the premisesoccupied for the purposes of the conference and all archives, papersand documents relating to the conference shall enjoy inviolability.

E. THE SCOPE AND ARRANGEMENT OF THE PRESENT GROUPOF DRAFT ARTICLES

22. The present group of draft articles covers the subjectsof: facilities, privileges and immunities of permanentmissions to international organizations; conduct of thepermanent mission and its members; and end of thefunction of the permanent representative (sections II,III and IV of part II).

23. In revising the draft articles contained in section IIof part II, the Special Rapporteur has endeavoured tobring them into harmony with the terminology used inthe twenty-one articles contained in section I of part IIas adopted by the Commission. New provisions havebeen added in response to suggestions made in the Com-mission, e.g., a provision of general application onconsultations between the sending State, the host Stateand the organization.

24. In accordance with the practice of the Commissionin dealing with other topics, the Special Rapporteur hasnot given the articles in the present group a separateset of numbers, but has numbered them in sequenceafter the last article of section I of part II—the firstarticle being numbered 22.

II. Draft articles on the legal position of representativesof States to international organizations with com-mentaries

11 Ibid., Twenty-third Session, Sixth Committee, 1055th meeting.26 Formal amendments to this effect were submitted by the dele-

gation of the United Kingdom. One amendment (A/C.6/L.697)would consist of a new paragraph 1 to article 21, reading:

"The privileges and immunities set out in this part shall beaccorded to a special mission led by the Head of State, the Headof Government or the Foreign Minister or other Ministers of theGovernment on the sending State by whatever title they may becalled. Any other special mission may be accorded the privilegesand immunities set out in this part by agreement between thesending and receiving States."

The other amendment (A/C.6/L.698 and Corr.l) would insert afterarticle 47 a new part III consisting of five articles.

PART II : PERMANENT MISSIONS TO INTERNATIONALORGANIZATIONS (continued)

Section II. Facilities, privileges and immunities

General comments

(1) As a common feature, the headquarters agreements ofinternational organizations, whether universal or regional,include provisions for the enjoyment by permanentrepresentatives of the privileges and immunities which thehost State "accords to diplomatic envoys accredited to it".In general, these headquarters agreements do not contain

Yearbook of the International Law Commission, 1969, Vol.

restrictions on the privileges and immunities of permanentrepresentatives which are based on the application of theprinciple of reciprocity in the relations between the hostState and the sending State. However, the relevant articlesof some of the headquarters agreements include a provisowhich makes it an obligation of the host State to concedeto permanent representatives the privileges and immu-nities which it accords to diplomatic envoys accreditedto it, "subject to corresponding conditions and obli-gations". Examples are provided by: article V, section 15,of the Headquarters Agreement of the United Nations;26

article XI, section 24, paragraph (a), of the HeadquartersAgreement of the Food and Agriculture Organization ofthe United Nations (FAO);27 and article I of the Head-quarters Agreement of the Organization of AmericanStates (OAS).28

(2) In determining the rationale of diplomatic privilegesand immunities the International Law Commissiondiscussed, at its tenth session in 1958, the theories whichhave exercised an influence on the development of diplo-matic privileges and immunities. The Commission men-tioned the "exterritoriality" theory, according to whichthe premises of the mission represent a sort of extensionof the territory of the sending State, and the "represen-tative character" theory, which bases such privileges andimmunities on the idea that the diplomatic missionpersonifies the sending State. The Commission pointedout that "there is now a third theory which appears tobe gaining ground in modern times, namely, the 'func-tional necessity' theory, which justifies privileges andimmunities as being necessary to enable the mission toperform its functions".29

(3) Functional necessity is one of the bases of the privi-leges and immunities of representatives of States tointernational organizations. Article 105, paragraph 2,of the Charter of the United Nations provides that"Representatives of the Members of the United Nationsand officials of the Organization shall similarly enjoysuch privileges and immunities as are necessary for theindependent exercise of their functions in connexion withthe Organization".

(4) The representation of States in international orga-nizations is the basic function of permanent missions asdefined in article 7 of the twenty-one provisional articlesadopted by the Commission. Article 1, sub-paragraph (d),of these articles, defines a "permanent mission" as "amission of representative and permanent character sentby a State member of an international organization tothe Organization".30 Paragraph (2) of the commentaryto article 7 states that:

26 United Nations, Treaty Series, vol. 11, p. 26.87 United Nations Legislative Series, Legislative Texts and Treaty

Provisions concerning the Legal Status, Privileges and Immunitiesof International Organizations, vol. II (ST/LEG/SER.B/11), p. 195.

28 United Nations, Treaty Series, vol. 181, p. 147." Yearbook of the International Law Commission, 1958, vol. II,

document A/3859, p. 95.30 Yearbook of the International Law Commission, 1968, vol. II,

document A/7209/Rev.l, p. 196.

Sub-paragraph (a) is devoted to the representational function ofthe permanent mission. It provides that the mission represents thesending State in the Organization. The mission, and in particularthe permanent representative as head of the mission, is responsiblefor the maintenance of official relationship between the Governmentof the sending State and the Organization.81

(5) The representation of States within the frameworkof the diplomacy of international organizations andconferences has its particular characteristics. The repre-sentative of a State to an international organization doesnot represent his State to the host State. He does not enterinto direct relationship and transactions with the hostState, unlike the case of a diplomat accredited to theState. In the latter case, the diplomatic agent is accreditedto the receiving State in order to perform certain functionsof representation and negotiation between it and his ownState. The representative of a State to an internationalorganization represents his State to the organization asa collective organ which possesses a separate identity andlegal personality distinct from those of the individualmember States. In a sense it may be said that he alsoperforms some kind of representation to the Statesmembers of the organization in their collegiate capacityas an organization of States and not in their individualcapacity. The host State is included in such a communitywhen it is a member of the organization. Such a situationcannot be said to exist when the host State is not amember of the organization.

(6) Another characteristic of representation to inter-national organizations springs from the fact that theobservance of juridical rules governing privileges andimmunities is not solely the concern of the sending Stateas in the case of bilateral diplomacy. In the discussion onthe "question of diplomatic privileges and immunities"which took place in the Sixth Committee during thetwenty-second session of the General Assembly, it wasgenerally agreed that the organization itself had an interestin the enjoyment by the representatives of MemberStates of the privileges and immunities necessary toenable them to carry out their tasks. It was also recog-nized that the Secretary-General should maintain hisefforts to ensure that the privileges and immunitiesconcerned are respected.32 In his statement at the1016th meeting of the Sixth Committee the Legal Counsel,speaking as the representative of the Secretary-General,said:

. . . the rights of representatives should properly be protected bythe Organization and not left entirely to bilateral action of theStates immediately involved. The Secretary-General would thereforecontinue to feel obligated in the future, as he has done in the past,to assert the rights and interests of the Organization on behalf ofrepresentatives of Members as the occasion may arise. I would notunderstand from the discussion in this Committee that the Membersof the Organization would wish him to act in any way differentfrom that which I have just indicated. Likewise, since the Organiza-tion itself has an interest in protecting the rights of representatives,a difference with respect to such rights may arise between the UnitedNations and a Member and consequently be the subject of a requestfor an advisory opinion under Section 30 of the Convention [the

81 Ibid., p. 200.a Official Records of the General Assembly, Twenty-second Ses-

sion, Annexes, agenda item 98, document A/6965, para. 14.


Convention on the Privileges and Immunities of the United Nationsof 1946]. It is thus clear that the United Nations may be one of the"parties" as that term is used in Section 30."

(7) The privileges and immunities of permanent missionsto international organizations, being analogous to, if notidentical with, those of diplomatic bilateral missions,the articles thereon are modelled on the correspondingprovisions of the Vienna Convention on DiplomaticRelations. In view of this, there does not appear to beany need for an independent and elaborate commentaryto this section, except in so far as it may be necessaryto draw attention to certain departures from the Viennatext or to point to any particular application which agiven rule may have had within one or more internationalorganizations.

Article 22. General facilities

The organization and the host State shall accord to thepermanent mission the facilities required for the perfor-mance of its functions, having regard to the nature andtask of the permanent mission.

of the mission and also in the performance of its func-tions. To an even greater extent, the permanent missionneeds the assistance of the organization which has a moredirect interest in the permanent mission being able toperform its functions satisfactorily. The organizationcan be particularly helpful to the permanent mission inobtaining documentation and information, an activityreferred to in article 7, sub-paragraph (d), of the draftarticles.

(4) Article 23 is based on article 21 of the Vienna Con-vention on Diplomatic Relations.36 As observed by theInternational Law Commission in the commentary onthe relevant provision (article 19) of its draft articles ondiplomatic intercourse and immunities,37 which servedas the basis for the Vienna Convention, the laws andregulations of a given country may make it impossible fora mission to acquire the premises necessary to it. Forthat reason the Commission inserted in that provision arule which makes it obligatory for the receiving Stateto ensure the provision of accommodation for the missionif the latter is not permitted to acquire it. These consi-derations equally underlie article 23, paragraph 1, ofthe draft articles.

Article 23. Accommodation of the permanent missionand its members

1. The host State shall either facilitate the acquisitionon its territory, in accordance with its laws, by the sendingState of premises necessary for its permanent mission orassist the latter in obtaining accommodation in some otherway.

2. The host State and the organization shall also, wherenecessary, assist permanent missions in obtaining suitableaccommodation for their members.

Commentary

(1) Article 22 is based on article 25 of the Vienna Con-vention on Diplomatic Relations34 and article 22 of thedraft articles on special missions.35 It states in generalterms the obligations of both the organization and thehost State to accord to the permanent mission thefacilities required for the performance of its functions.

(2) The reference in the text of article 22 to the natureand task of the permanent mission—a reference whichdoes not appear in article 25 of the Vienna Convention—makes the extent of the obligations both of the orga-nization and of the host State depend on the individualcharacteristics of the permanent mission according tothe specific functional needs of the organization to whichthe mission is assigned.

(3) A permanent mission may often need the assistanceof the host State, in the first place during the installation

Article 24. Inviolability of the premisesof the permanent mission

1. The premises of the permanent mission shall beinviolable. The agents of the host State may not enterthem, except with the consent of the head of the mis-sion.

2. The host State is under a special duty to take allappropriate steps to protect the premises of the permanentmission against any intrusion or damage and to preventany disturbance of the peace of the permanent mission orimpairment of its dignity.

3. The premises of the permanent mission, their furnish-ings and other property thereon and the means of transportof the permanent mission shall be immune from search,requisition, attachment or execution.

Article 25. Exemption of the premisesof the permanent mission from taxation

1. The sending State and the head of the permanentmission shall be exempt from all national, regional or muni-cipal dues and taxes in respect of the premises of the per-manent mission, whether owned or leased, other than suchas represent payment for specific services rendered.

2. The exemption from taxation referred to in thisarticle shall not apply to such dues and taxes payable underthe law of the host State by persons contracting with thesending State or the head of the permanent mission.

88 Ibid., document A/C.6/385, para. 8.34 United Nations, Treaty Series, vol. 500, p. 108.86 Yearbook of the International Law Commission, 1967, vol. II,

document A/6709/Rev.l and Rev.l/Corr.l, p. 359.

»6 United Nations, Treaty Series, vol. 500, p. 107.87 Yearbook of the International Law Commission, 1958, vol. II,

document A/3859, p. 95.

10 Yearbook of the International Law Commission, 1969, Vol.

Article 26. Inviolability of archives and documents

The archives and documents of the permanent missionshall be inviolable at any time and wherever they may be.

Commentary

(1) Articles 24 to 26 relate to certain immunities andexemptions concerning the premises of the permanentmission and its archives and documents. These articlesreproduce, with the necessary drafting changes, theprovisions of articles 22 to 24 of the Vienna Conventionon Diplomatic Relations.38

(2) The requirement that the host State should ensurethe inviolability of permanent missions' premises, archivesand documents has been generally recognized. In a lettersent to the Legal Adviser of one of the specialized agenciesin 1964, the Legal Counsel of the United Nations statedthat:

There is no specific reference to mission premises in the Head-quarters Agreement and the diplomatic status of these premisestherefore arises from the diplomatic status of a resident represen-tative and his staff.38

(3) The headquarters agreements of some of the specia-lized agencies contain provisions relating to the inviola-bility of the premises of permanent missions and theirarchives and documents (for example, article XI of theHeadquarters Agreement of FAO;4 0 articles XIII andXIV, section 33 (c), of the Headquarters Agreement ofthe International Atomic Energy Agency (IAEA) 41 whichrecognize the inviolability of correspondence, archivesand documents of the missions of member States.

(4) The inviolability of the premises of the UnitedNations and the specialized agencies were sanctioned inarticle II, section 3, of the Convention on the Privilegesand Immunities of the United Nations42 and article III,section 5, of the Convention on the Privileges andImmunities of the Specialized Agencies13 respectively.These texts provide that the property and assets of theUnited Nations and the specialized agencies, whereverlocated and by whomsoever held, shall be immune fromsearch, requisition, confiscation, expropriation and anyother form of interference, whether by executive, admi-nistrative, judicial or legislative action. The conventionsalso contain provisions on the inviolability of the archivesand documents of the United Nations and the specializedagencies. Provision is made for the inviolability of allpapers and documents of "Representatives of Membersto the principal and subsidiary organs of the UnitedNations and to conferences convened by the United

88 United Nations, Treaty Series, vol. 500, pp. 106 and 108.38 Study by the Secretariat, Yearbook of the International Law

Commission, 1967, vol. II, documents A/CN.4/L.118 and Add.land 2, p. 187, para. 154.

40 United Nations Legislative Series, Legislative Texts and TreatyProvisions concerning the Legal Status, Privileges and Immunities ofInternational Organizations, vol. I I (ST/LEG/SER.B/11) , p . 195.

41 Un i t ed Na t ions , Treaty Series, vol. 339, p p . 163-165.42 Ibid., vol. 1, p . 18." Ibid., vol . 33 , p . 266.

Nations" and of "Representatives of members at meetingsconvened by a specialized agency".44

(5) An explicit reference to the premises of permanentmissions is made in the Headquarters Agreement of theInternational Civil Aviation Organization (ICAO). Arti-cle II, section 4 (1), of this Agreement provides that the"headquarters premises of the Organization shall beinviolable".45 Article I, section 1 (b), defines the expression"headquarters premises" as follows:

The expression "headquarters premises" means any building or partof a building occupied permanently or temporarily by any unit ofthe organization or by meetings convened in Canada by theorganization, including the offices occupied by Resident Represen-tatives of Member States.*' [Italics added by the Special Rap-porteur.]

(6) Article 25 provides for the exemption of the premisesof the permanent mission from taxation. The replies ofthe United Nations and the specialized agencies indicatethat this exemption is generally recognized. Examples ofprovisions of headquarters agreements granting suchexemption are to be found in article XI of the Head-quarters Agreement of FAO and in articles XII and XIIIof the Headquarters Agreement of IAEA.47

Article 27. Freedom of movement

Subject to its laws and regulations concerning zonesentry into which is prohibited or regulated for reasons ofnational security, the host State shall ensure to all membersof the permanent mission freedom of movement and travelin its territory.

Commentary

(1) This article is based on article 26 of the Vienna Con-vention on Diplomatic Relations.48

(2) The replies of the specialized agencies indicate thatno restrictions have been imposed by the host State onthe movement of members of the permanent missionsof member States.

(3) At United Nations Headquarters the host State hasimposed limits on the movement of the representativesof certain Member States on the ground that similarrestrictions have been placed on the representatives ofthe host State in the countries concerned.

(4) The problem of reciprocity will be dealt with inarticle 43 on non-discrimination. Suffice it to mentionhere that it has been the understanding of the Secretariatof the United Nations that the privileges and immunitiesgranted should generally be those accorded to the diplo-matic corps as a whole, and should not be subject to

44 Ibid., vol. 1, p. 20; and ibid., vol. 33, pp. 270 and 272.45 Ibid., vol. 96, p. 160.48 Ibid., p. 156." Ibid., vol. 339, p. 163.48 Ibid., vol. 500, p. 108.

Relations between States and international organizations 11

particular conditions imposed, on a basis of reciprocity,upon the diplomatic missions of particular States.49

Article 28. Freedom of communication

1. The host State shall permit and protect free commu-nication on the part of the permanent mission for all offi-cial purposes. In communicating with the Governmentand the diplomatic missions, consulates and special mis-sions of the sending State, wherever situated, the permanentmission may employ all appropriate means, including diplo-matic couriers and messages in code or cipher. However,the mission may install and use a wireless transmitteronly with the consent of the host State.

2. The official correspondence of the permanent missionshall be inviolable. Official correspondence means all cor-respondence relating to the mission and its functions.

3. The bag of the permanent mission shall not be openedor detained.

4. The packages constituting the bag of the permanentmission must bear visible external marks of their characterand may contain only documents or articles intended forthe official use of the permanent mission.

5. The courier of the permanent mission, who shall beprovided with an official document indicating his status andthe number of packages constituting the bag, shall be pro-tected by the host State in the performance of his functions.He shall enjoy personal inviolability and shall not be liableto any form of arrest or detention.

6. The sending State or the permanent mission maydesignate couriers ad hoc of the permanent mission. In suchcases the provisions of paragraph 5 of this article shallalso apply, except that the immunities therein mentionedshall cease to apply when such a courier has delivered tothe consignee the permanent mission's bag in his charge.

7. The bag of the permanent mission may be entrustedto the captain of a ship or of a commercial aircraft scheduledto land at an authorized port of entry. He shall be providedwith an official document indicating the number of packagesconstituting the bag but he shall not be considered to bea courier of the permanent mission. By arrangement withthe appropriate authorities, the permanent mission maysend one of its members to take possession of the bagdirectly and freely from the captain of the ship or of theaircraft.

Commentary

(1) This article is based on article 27 of the ViennaConvention on Diplomatic Relations.50

(2) Permanent missions to the United Nations, thespecialized agencies and other international organizationsenjoy in general freedom of communication on the sameterms as the diplomatic missions accredited to the hostState.

(3) The replies of the United Nations and the specializedagencies indicate also that the inviolability of corres-pondence, which is provided for in article IV, sec-tion 11 (b), of the Convention on the Privileges andImmunities of the United Nations 51 and in article V,section 13 (b), of the Convention of Privileges andImmunities of the Specialized Agencies52 has been fullyrecognized.

(4) One difference between this article and article 27 ofthe Vienna Convention on Diplomatic Relations is theaddition in paragraph 1 of the words "with specialmissions" in order to co-ordinate the article with arti-cle 28, paragraph 1, of the draft articles on specialmissions.53

(5) Another difference is that paragraph 7 of article 28provides that the bag of the permanent mission may beentrusted not only to the captain of a commercial aircraft,as provided for the diplomatic bag in article 27 of theVienna Convention on Diplomatic Relations, but alsoto the captain of a merchant ship. This additional pro-vision is taken from article 35 of the Vienna Conventionon Consular Relations54 and article 28 of the draftarticles on special missions.

(6) On the model of article 28 of the draft articles onspecial missions, the article uses the expression "the bagof the permanent mission" and the "courier of thepermanent mission". The expressions "diplomatic bag"and "diplomatic courier" were not used, in order to preventany possibility of confusion with the bag and courier ofthe permanent diplomatic mission.

(7) The expression "diplomatic missions" in paragraph 1of the article is used in the broad sense in which it isused in paragraph 1 of article 28 of the draft articles onspecial missions, so as to include other missions tointernational organizations. Paragraph 4 of the com-mentary of the International Law Commission onarticle 28 of the draft articles on special missions statesthat:

the Commission wishes to stress that by the expression "diplomaticmissions", used in the second sentence of paragraph 1, it meanseither a permanent diplomatic mission, or a mission to an interna-tional organization, or a specialized diplomatic mission of apermanent character."

Article 29. Personal inviolability

The persons of the permanent representative and of themembers of the diplomatic staff of the permanent missionshall be inviolable. They shall not be liable to any formof arrest or detention. The host State shall treat them withdue respect and shall take all appropriate steps to preventany attack on their persons, freedom or dignity.

49 Study by the Secretariat, Yearbook of the International LawCommission, 1967, vol. II, documents A/CN.4/L.118 and Add.land 2, p. 178, para. 96.

60 United Nations, Treaty Series, vol. 500, pp. 109 and 110.

51 Ibid., vol. I, p. 20.•* Ibid., vol. 33, p. 272.50 Yearbook of the International Law Commission, 1967, vol. II,

document A/6709/Rev.l and Rev.l/Corr.l, pp. 360 and 361." United Nations, Treaty Series, vol. 596, pp. 290 and 292.5J Yearbook of the International Law Commission, 1967, vol. II,

document A/6709/Rev.l and Rev.l/Corr.l, p. 361.

12 Yearbook of the International Law Commission, 1969, Vol. U

Article 30. Inviolability of residence and property

1. The private residence of the permanent representativeand the members of the diplomatic staff of the permanentmission shall enjoy the same inviolability and protectionas the premises of the permanent mission.

2. Their papers, correspondence and, except as providedin paragraph 3 of article 31, their property, shall likewiseenjoy inviolability.

Commentary

(1) Articles 29 and 30 reproduce, without change ofsubstance, the provisions of articles 29 and 30 of theVienna Convention on Diplomatic Relations66 and ofthe draft articles on special missions.57

(2) Articles 29 and 30 deal with two generally recognizedimmunities which are essential for the performance ofthe functions of the permanent representative and of themembers of the diplomatic staff of the permanent mission.

(3) The principle of the personal inviolability of thepermanent representative and of the members of thediplomatic staff, which article 29 confirms, implies, as inthe case of the inviolability of the premises of the per-manent mission, the obligation for the host State torespect, and to ensure respect for, the person of the indi-viduals concerned. The host State must take all necessarymeasures to that end, including possibly the provision ofa special guard where circumstances so require.

(4) Inviolability of all papers and documents of repre-sentatives of members to the organs of the organizationsconcerned is generally provided for in the Conventionson the Privileges and Immunities of the United Nations,the Specialized Agencies and other international orga-nizations.

(5) In paragraph (1) of its commentary to article 28(Inviolability of residence and property) of its draftarticles on diplomatic intercourse and immunities adoptedin 1958, the International Law Commission stated that:

This article concerns the inviolability accorded to the diplomaticagent's residence and property. Because this inviolability arises fromthat attaching to the person of the diplomatic agent, the expression"the private residence of a diplomatic agent" necessarily includeseven a temporary residence of the diplomatic agent.68

Article 31. Immunity from jurisdiction

1. The permanent representative and the members of thediplomatic staff of the permanent mission shall enjoyimmunity from the criminal jurisdiction of the host State.They shall also enjoy immunity from its civil and admi-nistrative jurisdiction, except in the case of:

(a) a real action relating to private immovable propertysituated in the territory of the host State unless they hold

it on behalf of the sending State for the purposes of thepermanent mission;

(ft) an action relating to succession in which the perma-nent representative or a member of the diplomatic staffof the permanent mission is involved as executor, admi-nistrator, heir or legatee as a private person and not onbehalf of the sending State;

(c) an action relating to any professional or commercialactivity exercised by the permanent representative or amember of the diplomatic staff of the permanent missionin the host State outside his official functions.

2. The permanent representative and the members of thediplomatic staff of the permanent mission are not obligedto give evidence as witnesses.

3. No measures of execution may be taken in respectof a permanent representative or a member of the diplo-matic staff of the permanent mission except in cases comingunder sub-paragraphs (a), (6) and (c) of paragraph 1 ofthis article, and provided that the measures concerned canbe taken without infringing the inviolability of his personor of his residence.

4. The immunity of a permanent representative or amember of the diplomatic staff of the permanent missionfrom the jurisdiction of the host State does not exempthim from the jurisdiction of the sending State.

Article 32. Waiver of immunity

1. The immunity from jurisdiction of permanent repre-sentatives or members of the diplomatic staff of permanentmissions and persons enjoying immunity under article 39may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a permanent repre-sentative, by a member of the diplomatic staff of a per-manent mission or by a person enjoying immunity fromjurisdiction under article 39 shall preclude him from invok-ing immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect ofcivil or administrative proceedings shall not be held toimply waiver of immunity in respect of the execution ofthe judgement, for which a separate waiver shall benecessary.

Commentary

(1) Article 31 is based on article 31 of the Vienna Con-vention on Diplomatic Relations.59

" United Nations, Treaty Series, vol. 500, p. 110." Yearbook of the International Law Commission, 1967, vol. II,

document A/6709/Rev.l and Rev.l/Corr.l, p. 361.68 Yearbook of the International Law Commission, 1958, vol. II,

document A/3859, p. 98.

(2) The immunity from criminal jurisdiction grantedunder paragraph 1 of article 31 is complete and theimmunity from civil and administrative jurisdiction issubject only to the exceptions stated in paragraph 1of the article. This constitutes the principal differencebetween the "diplomatic" immunity enjoyed by per-manent missions and the "functional" immunity accorded

M United Nations, Treaty Series, vol. 500, p. 112.


to delegations to organs of international organizationsand conferences convened by them, by the Conventionson the Privileges and Immunities of the United Nationsand of the Specialized Agencies. Article IV, section 11 (a),of the Convention on the Privileges and Immunities ofthe United Nations60 and article V, section 13 (a), of theConvention on the Privileges and Immunities of theSpecialized Agencies 61 accord to the representatives ofMembers to the meetings of the organs of the orga-nization concerned or to the conferences convened by it"immunity from legal process of every kind" in respectof "words spoken or written and all acts done by them"in their official capacity.

(3) Article 32 is modelled on the provisions of article 32of the Vienna Convention on Diplomatic Relations.62

The basic principle of the waiver of immunity is containedin article IV, section 14, of the Convention on the Privi-leges and Immunities of the United Nations whichstates:

Privileges and immunities are accorded to the representatives ofMembers not for the personal benefit of the individuals themselves,but in order to safeguard the independent exercise of their functionsin connection with the United Nations. Consequently a Membernot only has the right but is under a duty to waive the immunityof its representative in any case where in the opinion of the Memberthe immunity would impede the course of justice, and it can bewaived without prejudice to the purpose for which the immunityis accorded.63

This provision is reproduced mutatis mutandis in article V,section 16 of the Convention on the Privileges andImmunities of the Specialized Agencies and in a numberof the corresponding instruments of regional organi-zations.

Article 33. Consideration of civil claims

The sending State shall waive the immunity of any ofthe persons mentioned in paragraph 1 of article 32 in res-pect of civil claims in the host State when this can be donewithout impeding the performance of the functions of thepermanent mission, and when immunity is not waived,the sending State shall use its best endeavours to bringabout a just settlement of the claims.

Commentary

(1) This article is based on the important principle statedin resolution II, adopted on 14 April 1961, by the UnitedNations Conference on Diplomatic Intercourse andImmunities.64

60 Ibid., vol. 1, p . 20.61 Ibid., vol . 33, p . 270.82 Ibid., vol . 500, p . 112.63 Ibid., vol. 1, p . 22.01 Official Records of the United Nations Conference on Diplomatic

Intercourse and Immunities, vol. II, document A/CONF.20/10/Add.l,p. 90.

(2) The International Law Commission embodied thisprinciple in article 42 of its draft articles on specialmissions

because [as stated in the commentary to that article] the purpose ofimmunities is to protect the interests of the sending State, notthose of the persons concerned, and in order to facilitate, as faras possible, the satisfactory settlement of civil claims made in thereceiving State against members of special missions.

This principle is also referred to in the draft preambledrawn up by the Commission.65

Article 34. Exemption from social security legislation

1. Subject to the provisions of paragraph 3 of thisarticle, the permanent representative and the membersof the diplomatic staff of the permanent mission shall withrespect to services rendered for the sending State be exemptfrom social security provisions which may be in force inthe host State.

2. The exemption provided for in paragraph 1 of thisarticle shall also apply to persons who are in the sole pri-vate employ of a permanent representative or of a memberof the diplomatic staff of the permanent mission, oncondition:

(a) That such employed persons are not nationals of orpermanently resident in the host State, and

(A) That they are covered by the social security provi-sions which may be in force in the sending State or a thirdState.

3. The permanent representative and the members ofthe diplomatic staff of the permanent mission who employpersons to whom the exemption provided for in paragraph 2of this article does not apply shall observe the obligationswhich the social security provisions of the host State imposeupon employers.

4. The exemption provided for in paragraphs 1 and 2of this article does not exclude voluntary participation inthe social security system of the host State where such parti-cipation is permitted by that State.

5. The provisions of the present article do not affectbilateral and multilateral agreements on social securitywhich have been previously concluded and do not precludethe subsequent conclusion of such agreements.

Commentary


(2) Paragraph 2 is modelled on paragraph 2 of article 32of the draft articles on special missions in that it sub-stitutes the expression "persons who are in the soleprivate employ" for the expression "private servants",which is used in article 33 of the Vienna Convention.

66 Yearbook of the International Law Commission, 1967, vol. II,document A/6709/Rev.l and Rev.l/Corr.l, p. 365.

66 United Nations, Treaty Series, vol. 500, pp. 112 and 114.

14 Yearbook of the International Law Commission, 1969, Vol. II

Referring to this change in terminology, the InternationalLaw Commission stated in paragraph 2 of its commentaryto article 32 of the draft articles on special missions:"Article 3 2 . . . applies not only to servants in the strictsense of the term, but also to other persons in the privateemploy of members of the special mission such as chil-dren's tutors and nurses".67

(3) Permanent representatives are generally exempt frompayment of social security contributions. Permanentmissions to the International Atomic Energy Agency(IAEA) are exempt from paying employers' social securitycontributions by virtue of articles XII and XIII of theHeadquarters Agreement; it is understood that in prac-tice the employers' contribution has been paid by per-manent missions on a voluntary basis.68

Article 35. Exemption from dues and taxes

The permanent representative and the members of thediplomatic staff of the permanent mission shall be exemptfrom all dues and taxes, personal or real, national, re-gional or municipal, except:

(a) Indirect taxes of a kind which are normally incor-porated in the price of goods or services;

(b) Dues and taxes on private immovable propertysituated in the territory of the host State, unless the personconcerned holds it on behalf of the sending State for thepurposes of the permanent mission;

(c) Estate, succession or inheritance duties levied by thehost State, subject to the provisions of paragraph 4 ofarticle 41;

(d) Dues and taxes on private income having its sourcein the host State and capital taxes on investments made incommercial undertakings in the host State;

(e) Charges levied for specific services rendered;if) Registration, court or record fees, mortgage dues and

stamp duty, with respect to immovable property, subjectto the provisions of article 25.

Commentary


(2) The immunity of representatives from taxation isdealt with indirectly in article IV, section 13, of theConvention on the Privileges and Immunities of theUnited Nations which provides that:

Where the incidence of any form of taxation depends upon residence,periods during which the representatives of Members to the prin-cipal and subsidiary organs of the United Nations and to conferencesconvened by the United Nations are present in a State for thedischarge of their duties shall not be considered as periods ofresidence.70

This provision is reproduced mutatis mutandis in article V,section 15 of the Convention on the Privileges and Immu-nities of the Specialized Agencies 71 and in a number ofthe corresponding instruments of regional organizations.(3) Except in the case of nationals of the host State,representatives enjoy extensive exemption from taxation.In ICAO and UNESCO all representatives, and in FAOand IAEA resident representatives, are granted the sameexemptions in respect of taxation as diplomats of thesame rank accredited to the host State concerned. Inthe case of IAEA, no taxes are imposed by the hostState on the premises used by missions or delegates,including rented premises and parts of buildings. Per-manent missions to UNESCO pay taxes only for servicesrendered and real property tax {contribution fonciere)when the permanent representative is the owner of thebuilding. Permanent representatives are exempt from taxon movable property {contribution mobiliere), a taximposed in France on occupiers of rented or occupiedproperties, in respect of their principal residence but notin respect of any secondary residence.72

Article 36. Exemption from personal services

The host State shall exempt the permanent representativeand the members of the diplomatic staff of the permanentmission from all personal services, from all public serviceof any kind whatsoever, and from military obligations suchas those connected with requisitioning, military contribu-tions and billeting.

Commentary

(1) This article is based on the provisions of article 35of the Vienna Convention on Diplomatic Relations.73

(2) The immunity in respect of national service obliga-tions provided in article IV, section 11 {d), of the Con-vention on the Privileges and Immunities of the UnitedNations74 and article V, section 13 (d), of the Conventionon the Privileges and Immunities of the SpecializedAgencies 75 has been widely acknowledged. That immu-nity does not normally apply when the representative isa national of the host State.76

Article 37. Exemption from customs duties and inspection

1. The host State shall, in accordance with such lawsand regulations as it may adopt, permit entry of and grantexemption from all customs duties, taxes and related

67 Yearbook of the International Law Commission, 1967, vol. II,document A/6709/Rev.l and Rev.l/Corr.l, p. 362.

68 S tudy by the Secretariat , Yearbook of the International LawCommission, 1967, vol . I I , documents A/CN.4 /L .118 a n d A d d . land 2, p. 201, para. 46.

69 Uni ted Na t ions , Treaty Series, vol . 500, p . 114.70 Ibid., vol . 1, p . 22.

71 Ibid., vol. 33, p . 272.72 Study by the Secretariat, Yearbook of the International Law

Commission, 1967, vol. II, documents E/CN.4/L.118 and Add.land 2, p. 201, para. 45.

73 Uni ted Na t ions , Treaty Series, vol. 500, p . 114.74 Ibid., vol. 1, p . 22.75 Ibid., vol. 33, p . 272.76 Study by the Secretariat, Yearbook of the International Law

Commission, 1967, vol. II, documents A/CN.4/L.118 and Add.land 2, p. 200, para. 37.


charges other than charges for storage, cartage and similarservices, on:

(a) Articles for the official use of the permanentmission;

(b) Articles for the personal use of a permanent repre-sentative or a member of the diplomatic staff of the per-manent mission or members of his family forming part ofhis household, including articles intended for his estab-lishment.

2. The personal baggage of a permanent representativeor a member of the diplomatic staff of the permanent mis-sion shall be exempt from inspection, unless there areserious grounds for presuming that it contains articles notcovered by the exemptions mentioned in paragraph 1 ofthis article, or articles the import or export of which isprohibited by the law or controlled by the quarantine regu-lations of the host State. Such inspection shall be conductedonly in the presence of the person enjoying the exemptionor of his authorized representative.

Commentary


(2) While in general permanent representatives andmembers of the diplomatic staff of permanent missionsenjoy exemption from customs and excise duties, thedetailed application of this exemption in practice variesfrom one host State to another according to the systemof taxation followed by the country in question.

(3) At United Nations Headquarters the United StatesCode of Federal Regulations, Title 19—Customs Duties(Revised 1964) provides in section 10.30 b, paragraph (b),that resident representatives and members of theirstaffs may import " . . . without entry and free of dutyand internal-revenue tax articles for their personal orfamily use".78

(4) At the United Nations Office at Geneva the matteris dealt with largely by the Swiss Customs Regulation of23 April 1952. Briefly, permanent missions may importall articles for official use and belonging to the Govern-ment they represent (article 15). Permanent represen-tatives with a title equivalent to that of the head of adiplomatic mission and who have a carte de legitimationmay import free of duty all articles destined for theirown use or that of their family (article 16, paragraph 1).Representatives with a title equivalent to members of adiplomatic mission and who have a carte de legitimation,have a similar privilege except that the importation offurniture may only be made once (article 16, para-graph 2).79

(5) The position in respect of permanent missions tospecialized agencies having their headquarters in Switzer-

" United Nations, Treaty Series, vol. 500, p. 116.78 Study by the Secretariat, Yearbook of the International Law

Commission, 1967, vol. II, documents A/CN.4/L.118 and Add.land 2, p. 238, para. 134. For details of the position in respect ofthe various federal and State taxes in New York, ibid., pp. 185 and186, paras. 144-147.

79 Ibid., p. 183, para. 136.

land is identical with that of permanent missions tothe United Nations at Geneva. In the case of FAO, theextent of the exemption of resident representativesdepends on their diplomatic status and is granted inaccordance with the general rules relating to diplomaticenvoys. Permanent representatives to UNESCO assimi-lated to heads of diplomatic missions can import goodsat any time for their own use and for that of their missionfree of duty. Other members of permanent missions mayimport their household goods and effects free of dutyat the time of taking up their appointment.

Article 38. Acquisition of nationality

Members of the permanent mission not being nationalsof the host State, and members of their families formingpart of their household, shall not, solely by the operationof the law of the host State, acquire the nationality of thatState.

Commentary

This article is based on the rule stated in the OptionalProtocol concerning Acquisition of Nationality adoptedon 18 April 1961 by the United Nations Conference onDiplomatic Intercourse and Immunities.80

Article 39. Persons entitled to privileges and immunities

1. The members of the family of a permanent represen-tative or of a member of the diplomatic staff of the per-manent mission forming part of his household shall, ifthey are not nationals of the host State, enjoy the privilegesand immunities specified in articles 29 to 37.

2. Members of the administrative and technical staffof the permanent mission, together with members of theirfamilies forming part of their respective households, shall,if they are not nationals of or permanently resident in thehost State, enjoy the privileges and immunities specifiedin articles 29 to 36, except that the immunity from civiland administrative jurisdiction of the host State specifiedin paragraph 1 of article 31 shall not extend to acts per-formed outside the course of their duties. They shall alsoenjoy the privileges specified in article 37, paragraph 1,in respect of articles imported at the time of firstinstallation.

3. Members of the service staff of the permanent mis-sion who are not nationals of or permanently resident inthe host State shall enjoy immunity in respect of acts per-formed in the course of their duties, exemption from duesand taxes on the emoluments they receive by reason oftheir employment and the exemption contained in article 34.

4. Private staff of members of the permanent missionshall, if they are not nationals of or permanently residentin the host State, be exempt from dues and taxes on theemoluments they receive by reason of their employment.

80 Official Records of the United Nations Conference on DiplomaticIntercourse and Immunities, vol. II, document A/CONF.20/11,p. 89.

16 Yearbook of the International Law Commission, 1969, Vol. TI

In other respects, they may enjoy privileges and immuni-ties only to the extent admitted by the host State. How-ever, the host State must exercise its jurisdiction overthose persons in such a manner as not to interfere undulywith the performance of the functions of the permanentmission.

Commentary

(1) This article is modelled on article 37 of the ViennaConvention on Diplomatic Relations.81

(2) The study by the Secretariat does not include data onthe privileges and immunities which host States accordto members of the families of permanent representatives,to the members of the administrative and technical staffand of the service staff of permanent missions and to theprivate staff of the members of permanent missions. Itis assumed that the practice relating to the status of thesepersons conforms to the corresponding rules establishedwithin the framework of inter-State diplomatic relationsas codified and developed in the Vienna Convention onDiplomatic Relations. This assumption is corroboratedby the identical legal basis of the status of these personsinasmuch as their status attaches to and derives fromdiplomatic agents or permanent representatives, who areaccorded analogous diplomatic privileges and immu-nities.

(3) In paragraph 4 of the article the expression "privateservants" which appears in paragraph 4 of article 37 ofthe Vienna Convention on Diplomatic Relations, hasbeen replaced by the expression "private staff" on themodel of articles 32 and 38 of the draft articles on specialmissions.82 Paragraph 2 of the commentary to article 32of the draft articles on special missions explains thischange as follows: "Article 3 2 . . . applies not only toservants in the strict sense of the term, but also to otherpersons in the private employ of members of the specialmission such as children's tutors and nurses". Thisexplanation is also valid for permanent missions tointernational organizations.

Article 40. Nationals of the host State and personspermanently resident in the host State

1. Except in so far as additional privileges and immu-nities may be granted by the host State, a permanentrepresentative or a member of the diplomatic staff of thepermanent mission who is a national or a permanent resi-dent of that State or is, or has been, its representative,shall enjoy immunity from jurisdiction, and inviolability,only in respect of official acts performed in the exerciseof his functions.

2. Other members of the staff of the permanent missionand private staff who are nationals or permanent residentsof the host State shall enjoy privileges and immunitiesonly to the extent admitted by the host State. However,

the host State must exercise its jurisdiction over thosepersons in such a manner as not to interfere unduly with theperformance of the functions of the mission.

Commentary

(1) This article reproduces, with the necessary draftingchanges, article 38 of the Vienna Convention on Diplo-matic Relations.83 Here, too, the expression "privateservants" has been replaced by "private staff".

(2) As mentioned in the third report submitted by theSpecial Rapporteur, a number of the conventions on theprivileges and immunities of international organizations,whether universal or regional, stipulate that the pro-visions which define the privileges and immunities of therepresentatives of members are not applicable as betweena representative and the authorities of the State of whichhe is a national or of which he is or has been the repre-sentative.84

Article 41. Duration of privileges and immunities

1. Every person entitled to privileges and immunitiesshall enjoy them from the moment he enters the territoryof the host State on proceeding to take up his post or, ifalready in its territory, from the moment when his appoint-ment is notified to the host State.

2. When the functions of a person enjoying privilegesand immunities have come to an end, such privileges andimmunities shall normally cease at the moment whenhe leaves the country, or on expiry of a reasonable periodin which to do so, but shall subsist until that time, even incase of armed conflict. However, with respect to acts per-formed by such a person in the exercise of his functions asa member of the permanent mission, immunity shall con-tinue to subsist.

3. In case of the death of a member of the permanentmission the members of his family shall continue to enjoythe privileges and immunities to which they are entitleduntil the expiry of a reasonable period in which to leave thecou