The Necessity of Headquarters Agreement under the Law of International Organisations
Keywords:
Headquarters Agreement, International Organisations, Host State, Immunity, PrivilegesAbstract
The authors observed that within the context of the Law of International Organisations, scholars have paid little attention to the concept of Headquarters Agreement in their research, rather more attention is focused on discussion of treaties, conventions, charter and protocols establishing these organisations. The reason is not farfetched. The ratifications of these treaties, conventions etc brings these organisations into existence and determine how disputes arising between the states parties could be resolved. Hence scholarly discussions, comparisons, analysis and counter-analysis, are made on these laws often times without taking into consideration the Headquarters Agreement which is a miniature treaty that comes on later and forms the operational basis or livewire of these international organisations. Headquarters agreements are of necessity concluded at the time when an organization first opens its premises in a particular country. The headquarters is the heart of an organisation and no organisation can effectively operate without a headquarter or seat which will be domicile in a member state and will also enjoy some form of diplomatic flavour for it to function independently without undue interference by the host states or member states and non-states entities over its activities. International Organisations are yet to acquire the status of sovereignty that states have and therefore their rights and privileges in a foreign land cannot be equated with that of a state that enjoy a high level of immunity and privileges under diplomatic and consular law. International organizations consist primarily of sovereign member states that operate across national borders. Therefore an agreement has to be reached with the host state to determine how the organisational’ headquarters will operate in that Host State under the concept of Headquarters Agreement. The necessity of this Headquarter agreement will form the basis of our discussion in this article.
References
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Ibid
Peter Fischer, “International Organisations”, Vienna/Bratislava 2012, p.9
Peter H.F Bekker, The Legal Position of Intergovernmental Organisation: A Functional Necessity Analysis of their Status and Immunities, Dordrecht Boston and London, 1994, p. 36. A treaty is a formal written instrument between States (and other subjects of International law). An official definition is contained in Article 2 of the Vienna Convention on the Law of Treaties, signed at Vienna on 23 May 1969. It reads: “A treaty is an international agreement concluded between States in written form and governed by International law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.
Ibid., See Axel Berg,” Nordic Council and the Nordic Council of Ministers”, in Rudolf Bernhardt (ed), Encyclopaedia of Public International Law, 1983 Vol. VII, pp.261-263.
Malcolm N. Shaw, above note 1, 2008, pp. 1309-1310. See Westland helicopters Ltd v. AOI (1995) 2 WLR 126, 144. See also re International Tin Council (1987) Ch. 419, 452 upheld by the Court of Appeal (1989) Ch. 309, 330.
Ibid., pp. 1319-1320
Henry Campbell Black, A Law Dictionary, 2nd St. Paul Minn. West Publishing Co. 1910, p.53.
H.G Schermers and N.M Blokker International Institutional Law: Unity Within Diversity, 4th edn. Boston and Leiden: Martinus Nijhoff, 2003, pp. 1111-1113
Example of non-member acting as host to international organisation are Austria, host of OPEC and United Kingdom, host state of most Commodity Councils including some of which it is not a member. In addition, Switzerland has long been one of the host state of the UN before it became a member in September 2002.
Headquarters Agreement Between His Majesty’s Government of Nepal and the International Committee of the Red Cross on the establishment of its delegation in Kathmandu Nepal, 20 January, 2003.
H.G Schermers and N.M Blokker above note 3, pp. 1072-1073.
Report of the Preparatory Commission for the International Criminal Court, Addendum Part I. Draft Basic Principles Governing a Headquarters Agreement to be Negotiated Between the Court and the Host Country, New York 8-19 April 2002, PCNICC/2002/1/Add.1. See also General Principles Governing the Headquarters Agreement Section 1(1)(c-e).
Belgium’s Headquarters Policy was ratified by the Belgian Council of Ministers on 13th October 2006 available online at http://diplomatie.belgium.be/en/services/Protocol/privileges_immunities/ international_organisations/zetelakkoorden/ accessed 24 June, 2014.
Drazen Petrovic, “Practical Legal Problems of International Organizations: A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights” Privileges and Immunities of UN Specialized Agencies in Field Activity (Preliminary paper) 25 June, 2009, pp1- 3, available online at http://www.iilj.org/gal/documents/galch.petrovic.pdf, accessed 26 June, 2014.
Ibid.
Ibid.
George B. Adams III, “Plain Reading, Subtle Meaning: Rethinking the IOIA and the Immunity of International Organizations”, Fordham Law Review Vol. 81, 2012, pp.250-251.
Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3, 9 (1998).
Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law: Cases, Materials and Simulations 2nd edn. 1987, p.506. Unlike foreign sovereign immunity, which could extend to any activity that a foreign nation chooses to engage in, the functional immunity of international organizations only applies to those limited activities that the organization was formed to perform.
Marrakesh Agreement Establishing the World Trade Organization Article 8, 15 April 1994, 1867 U.N.T.S. 154; Articles of Agreement of the International Development Association Article 8, 24 September, 1960, 11 U.S.T. 2284, 439 U.N.T.S. 249;
The Headquarters Agreement between the ICC and the Government of the Netherlands. Drafted by the ICC Preparatory Commission and adopted by the Assembly in September 2002, during the final process of its entry into force, the president of the Court will conclude on behalf of the Court. The interim Headquarters Agreement was agreed to by an exchange of notes between the Dutch Ministry of Foreign Affairs and the Court on 19 November 2002. The Agreement on Privileges and Immunities of the International Criminal Court is a multilateral treaty providing for privileges and immunities of the Court in all states parties to it. It thereby extends and elaborates upon Article 48 of the Rome Statute. These states parties differ from the States Parties to the Rome Statute, although it can be hoped that all States Parties to the Rome Statute also become States Parties to the APIC.
Judgement of 16 January 1963, 214 Fed. Supp. 425.
Part Three: Judicial Decisions on Questions Relating the United Nations and Related Intergovernmental Organizations, Chapter VIII. Decisions of National Tribunals, Extracts of United Nations Year Book 1963, pp.200-201.
Ibid
Year Book of International Law Commission, (1967), Vol. II, p.222., Year Book of International Law Commission, (1989), Vol. II, Part One, p.161.
August Reinishe, International Organisations before National Courts, Cambridge: Cambridge University Press, 2000, pp.13-14.
Panayotis Glavinis, Disputes Relating to Contracts Concluded between International Organizations and Private Persons 122, Paris, 1990, p.120.
Emmanuegla Illard and Isabellpei Ngel-Lenu, “International Organisations and Immunity from Jurisdiction: To Restrict or to Bypass” International and Comparative Law Quarterly, ICLQ Vol. 51, January 2002 pp 1-15 at, 4.
See Richard J. Oparil, Iminunity of International Organizatioris in Uiiited States Courts: Ah.rolute or Restrictive?, 24 Vand J Transnatl’ L. 6 89,7 1 O ( 199 1 ). De L’associatisouni Ssed’Arbitra [Gbeu Lla SA] 259 (1993); 1994 Revuede L’arbitrage, [Rev ARB] 175, and note by Panayotis Glavinis. See also Geneva Surveillance Authority for Debt Recovery and Bankruptcy Matters, 9 April, 1997. 1999 REV SUISSE DR INT ET DR EUR 656.
P. Sands and P. Klein, Bowett’s Law of International Institutions, London: Sweet and Maxwell, 2001,p. 516. See also August Reinisch, “Accountability of International Organisations According to National Law”, (2005) 36, Netherlands Yearbook of International Law, p.3.
In the case of the United States of America Court of General Sessions, New York County of the State of New York v. Nictolas Coumatos: judgment of 19th January 19b2 1/ Distinction between governmental representatives and United Nations staff members for purposes of immunities Jurisdiction over Acts committed within the premises of the United Nations Interpretation of Articles Ill, V and VI of the Headquarters Agreement. The defendant, an American citizen employed at the United Nations Headquarters as an inventory clerk on the Payroll of the United Nations, had Been arrested by the New York City Police outside the United Nations Headquarters and indicted for grand larceny Committed in the United Nations Headquarters. He objected to the proceeding on the ground that the Court lacked Jurisdiction by virtue of his position as a United Nations employee and in view of the fact that the crime had taken place on the United Nations premises. By a judgement of 19 January 1962, the Court of General Sessions sustained the indictment and found the defendant guilty. The Court (as per James E.
Mulcahy, J.) pointed out that, while diplomatic Immunity was extended to some categories of resident representatives of Member States to the United Nations under Article V of the Headquarters Agreement of 26 June 1947 between the United States and the United Nation, officers and employees of the United Nations could only rely on the International Organizations Immunities Act of 1945 whose provisions on immunity from suit and legal process (section 7(b)) are limited to acts performed by them in their official capacity. Noting that the defendant’s claim to immunity rested upon article Ill, sections 8 and 9 of the Headquarters Agreement, the Court addressed itself to the question whether it had jurisdiction over the acts as committed within the premises of the United Nations. It summarized the relevant provisions of articles III and VI of that Agreement and concluded: “Accordingly, it would appear from this agreement that the local law shall have jurisdiction over any acts done or transactions taking place within the Headquarters District which are in violation of such laws and the courts of the appropriate American authorities shall have jurisdiction to try and determine issues between the parties. However, such Federal, state or local laws shall, of course, not be inconsistent with any regulation that has been authorized by the United Nations… “for the court to recognize the existence of a general and unrestricted immunity over suits or transactions, as proposed by defendant, would be to establish a large preferred class of people within our borders who would be immune to punishment inasmuch as the United Nations has no tribunal for the control and punishment of defendants among its personnel. It can at best expel or eject them from the Headquarters District and such persons would escape trial and punishment completely. Such blanket immunity is contrary to our sense of justice and cannot be supported by any reference to the United Nations Charter, Acts of Congress or executive orders of the President”. The defendant also argued, on the basis of article III, section 9(a) of the Headquarters Agreement, that even if he was not immune from legal process, the United Nations had to give its consent prior to the indictment and, since its consent was obtained after the indictment, such consent had no effect. The Court held that that section of the Headquarters Agreement was not applicable in the case since the defendant had been arrested outside the United Nations Headquarters (United Nations Judicial Year Book (1962) Part Three). Judicial decisions relating to the United Nations and related intergovernmental organisations. Chapter VIII Decision of National Courts, pp. 294-295.See also 224, N.Y.S 2d 507, United Nations Legislative Series, Legislative Text and Treaty Provisions Concerning, the Legal Status Privileges and Immunities of International Organisations, Vol.1 (STB/LEG/SER.B/10), p.128.
John Hayes et al, Report of the Foreign Affairs, Defence and Trade Committee of the House of Representatives of New Zealand on International Treaty Examination of the Headquarters Agreement between the South Pacific Regional Fisheries Management Organisation and the Government of New Zealand on 21 October 2013, p.5. The South Pacific Regional Fisheries Management Organisation was established on 24 August, 2012.
Agreement between the Swiss Federal Council and the Bank for International Settlements to determine the Bank’s Legal Status in Switzerland done at Berne on 10 February 1987; text as amended effective 1 January, 2003 by the exchange of letters of 18 December 2002/13 January 2003 Article 19(1).
Drazen Petrovic, above note 15 at p.16.
Convention on the Privileges and Immunities of Specialised Agencies Approved by the General Assembly of the United Nations on 21 November 1947 and came into force on 2 December 1948, See Articles 16 and 22.
Drazen Petrovic, above note 15 at p.6.
Judgement of 7 October, 1963. 222 Fed. Supp. 106.
See Part Three: Judicial Decisions on Questions Relating the United Nations and Related Intergovernmental Organizations, Chapter VIII. Decisions of National Tribunals, Extracts of United Nations Year Book 1963, pp.202-203
(sections 288-288(f) of Title 22 of the United States Code)
Ibid.
Ibid.
Russ Buettner, Bronx Judge Rejects Stauss-Kahn’s Claim of Diplomatic Immunity in Sexual Assault Suit, N.Y. Times, 1May, 2012, at A23.
See Diallo v. Strauss-Kahn, No. 307065/11 (N.Y. Sup. Ct. May 1, 2012), available at http://www.nycourts.gov/press/DSK-30706511.pdf.
George B. Adams III, above note 18, p.243.
The Vienna Convention on Diplomatic Relations was adopted on 14 April 1961 by the United Nations Conference on Diplomatic Intercourse and Immunities held at the Neue Hofburg in Vienna, Austria, from 2 March do 14 April 1961. The Convention, in accordance with its Article 51, came into force on 24th April 1964.
Sahara Reporter, “Kenya Police Writes Nigerian Government Over Wife-Batterer Ambassador” 27th May, 2011. Available online at www.Sahara Reporter.com. Accessed 24th June, 2014.
Vanguard News “Allegation of Wife Battering: This is my story– Ambassador Wigwe“, 31st May, 2011, available online at http://www.vanguardngr.com/2011/05/allegation-of-wife-battering-thisis-my-story-ambassador-wigwe/accessed 27th June, 2014.
John Hayes et al, above note 34..
Headquarters Agreement between the Commission for the Conservation of Antarctic Marine Living Resources and the Government of Australia, Article XIII of the Convention on the Conservation of Antarctic Marine Living Resources drawn up at Canberra on 20 May, 1980 which entered into force on 7 April 1982 which provides that the headquarters of the Commission for the Conservation of Antarctic Marine Living Resources shall be established at Hobart, Tasmania, Australia. See Article 3
C.F Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn. Cambridge: Cambridge University Press, 2005, p.407.
Ibid, (1992) ICJ Reports p.240, 258, 271. In this case there was a tripartite administering power in the trusteeship agreements in that case, but the Court implied that one of the states could be held responsible in its own right. In doing so it stressed that the administering authority was not a separate legal entity from the three states.
Ibid, p. 412
Headquarters Agreement between the Commission for the Conservation of Antarctic Marine Living Resources and the Government of Australia, above note, 23. See Article 19.
Ibid.
Ibid. See Article 8(1) (2).
See Agreement between the Government of the French Republic and the ITER International Fusion Energy Organisation Regarding the Headquarters of the ITER Organisation and the Privileges and Immunities of the ITER Organisation on French territory done at Saint-Paul-Lez-Durance, (Cadaracahe), 7th November, 2007. Article 5. This agreement came into effect under Article 12 of the Agreement on the Establishment of the ITER International Fusion Energy Organisation for the Joint Implementation of the ITER Project signed in Parties on 21 November, 2006.
Agreement between the International Criminal Police Organization - INTERPOL and the Government of the French Republic Regarding INTERPOL’S Headquarters in France, dated 3 November 1982 Article 12(1)-(3).
Agreement between the Swiss Federal Council and the Bank for International Settlements to determine the Bank’s Legal Status in Switzerland done at Berne on 10th February 1987. Article 7(1)(2) (4) (5).
Agreement between the Government of the French Republic and the ITER above note 27, Article 11.
See Agreement between the Government of the Federative Republic of Brazil and the Inter-American Institute For Global Change Research Concerning the Headquarters of the IAI, done at Rio de Janeiro, on April 28 1995, See article 5(5). The States of the Americas met in Montevideo, and signed, on 12-14 May, 1992, an Agreement Establishing the Inter-American Institute for Global Change Research as a regional network of cooperating research which entered into force on 23 June, 1993.
Headquarters Agreement between the Organization of American States and the Government of the United States of America, signed in Washington, on 14 May, 1992, Article 3(1) and (2) of Part Two dealing with the Status of the Organization. Note that the Charter establishing the Organization of American States adopted in Bogota, Colombia, in 1948, entered into force 1951, was amended by the Protocol of Buenos Aires in 1967 and by the Protocol of Cartagena de Indias in 1985.
Agreement Between the International Seabed Authority and the Government of Jamaica Regarding the Headquarters of the International Seabed Authority, United Nations Convention on the Law of the Sea of 10 December 1982, which establishes the International Seabed Authority and Article 156, paragraph 4, of the Convention, provides that the Seat shall be in Jamaica. See Article 16(2)(1)(e)
See the United States and the United Nations; Report by the President to the Congress for the Year 1947. Department of State Publication 3024, International Organization and Conference Series 111, 1, pp. 220-234. Available online at http://avalon.law.yale.edu/20th_century/decad036.asp accessed 26th June, 2014. The United States Representative at the Seat of the United Nations presents his compliments to the Secretary-General of the United Nations and has the honor to notify him that on August 11, 1948, the President of the United States of America signed the Bill (now Public Law 903) authorizing a $65,000,000 interest-free loan to the United Nations for the construction of the Headquarters of the United Nations in New York. See also the United States Representative to the United Nations Secretary- General United States Mission to the United Nations, UN. 1657/C August 30, 1948.
An organisation that will assist in achieving the ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC). The Green Climate Fund was designated as an operating entity of the financial mechanism of the UNFCCC, in accordance with Article 11 of the Convention.
By Decision 3/CP.17 of the Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC), Parties were invited to submit to the Board by 15 April 2012 expressions of interest for hosting the “Green Climate Fund” Organisation. See recommended decision of the Board No. GCF/B.01 12/09, “Selection of the Host Country of the Fund”. See the Minutes of the Meeting of the Board held on 23rd - 25th August, 2012 Geneva, Switzerland, p.2, para 3.3.
The selection of the Republic of Korea as the host country of the Fund was the outcome of an open and transparent process conducted by the Board. Parties to the UNFCCC were requested to submit to the Board by 15 April 2012 expressions of interest for hosting the Fund, based on the criteria set in a decision of the COP (3/CP.17, paragraph 12). They included the ability to confer and/or recognize juridical personality and legal capacity to the Fund, the ability to provide the necessary privileges and immunities to the Fund, and financial arrangements as well as administrative and logistical support offered to the Fund. Six expressions of interest were received by the Interim Secretariat from Germany, Mexico, Namibia, Poland, Republic of Korea and Switzerland.
At its October 2012 meeting, the Board took a consensus decision to select Songdo, Incheon City, Republic of Korea as the host city of the Green Climate Fund. In accordance with paragraph 22 of the Governing Instrument, this decision was endorsed by decision 6/CP.18 of the Conference of the Parties (COP) at its eighteenth session in Doha, Qatar, in December 2012.
Ibid. pp.14-15. The “Agreement between the Republic of Korea and the Green Climate Fund regarding the Headquarters of the Green Climate Fund” was signed in Bonn, Germany, on 2 June, 2013 and in Songdo, Incheon, Republic of Korea, on 10th June, 2013. The Agreement entered into force in accordance with paragraph 5 of Article 20 of the Agreement on 27 August, 2013. See also Article 4(2), (4).
Headquarters Agreement between the Commission for the Conservation of Antarctic Marine Living Resources and the Government of Australia, above note 31. Article 25.
Agreement between the Government of the French Republic and the ITER International Fusion Energy Organisation above note 38, Article 19.
Agreement between the Swiss Federal Council and the Bank for International Settlements to determine the Bank’s Legal Status in Switzerland done at Berne on 10th February 1987. See Article 4(1) and (2).
Dobrica Savic, “International Civil Aviation Organization (ICAO), “ Montreal, November 2005, p.18. See also the Headquarters Agreement between Canada and ICAO, of 14 April 1951, On 16 September 1980 a Supplementary Agreement entered into force. It dealt with ICAO Headquarters premises at 1000 Sherbrooke Street West in Montreal. On 20 February 1992, the 1951 Agreement was terminated and superseded by a new Agreement that entered into force the same day. A new Supplementary Agreement was signed on 28 May 1999 superseding the Supplementary Agreement signed in 1980 in order to reflect the relocation of the Organization’s Headquarters to a new location on 999 University Street on November 1, 1996.
Rome Court of First Instance in its Judgment of 25th June 1969.
Summary of United Nations Judicial Year Book (1969), pp.238-239.
French Court of Cassation in its Judgement of 7 June, 1963.
Decision of 7 June, 1973, File No. 19/70 of Civil Matters before the Supreme Court of Cassation. Summary of United Nations Judicial Year Book (1973), pp.197-198. See also Peter Neumann, “Immunity of International Organisations and Alternative Remedies Against the United Nations”, Seminar on State Immunity, Vienna University International Law, 2006, pp.5-6.
Headquarters Agreement between the Commission for the Conservation of Antarctic Marine Living Resources and the Government of Australia, above note 44, Article 4(4).
The “Agreement between the Republic of Korea and the Green Climate Fund regarding the Headquarters of the Green Climate Fund” was signed in Bonn, Germany, on 2 June, 2013 and in Songdo, Incheon, Republic of Korea, on 10 June, 2013. Article 6(1)(2).
Convention on the Privileges and Immunities of Specialised Agencies Approved by the General Assembly of the United Nations on 21 November 1947 and came into force on 2 December, 1948, See Section IV, Articles 11 and 12.
See Agreement between the Government of the French Republic and the ITER above note 27, Article 3(1)
Headquarters Agreement between the Commission for the Conservation of Antarctic Marine Living Resources and the Government of Australia. Above note 44, Articles 6 and 7.
Agreement between the Swiss Federal Council and the Bank for International Settlements to Determine the Bank’s Legal Status in Switzerland done at Berne on 10th February, 1987. See Article 3(1)(2)(3).
Agreement Between the International Seabed Authority and the Government of Jamaica, above note 57, Articles 5(1) and 6(1)(2).
Headquarters Agreement between Canada and ICAO, of 14 April 1951, On 16 September 1980 a Supplementary Agreement entered into force. It dealt with ICAO Headquarters premises at 1000 Sherbrooke Street West in Montreal. On 20 February 1992, the 1951 Agreement was terminated and superseded by a new Agreement that entered into force the same day. A new Supplementary Agreement was signed on 28 May 1999 superseding the Supplementary Agreement signed in 1980 in order to reflect the relocation of the Organization’s Headquarters to a new location on 999 University Street on November 1, 1996.
C.F Amerasinghe, above note 52, pp.330-331.
Commercial Court of Vienna, Judgement of 29 November 1965, Twelfth Division. 12 Cg 802/65-2.
Agreement between the International Atomic Energy Agency and the Republic of Austria regarding the Headquarters of the International Atomic Energy Agency adopted in Vienna on 11 December, 1957 and entered into force on 1 March, 1958. See Article III, Section 9(a) and Article VIII, Section 19.
Commercial Court of Vienna of 5 October 1965 (12 Cg 802/65).
See Extract from United Nations Juridical Yearbook 1965, Chapter VIII. Decisions of National Tribunals Part Three. Judicial decisions on questions relating to the United Nations and related inter-governmental organizations. p.246
Drazen Petrovic, above note 15, at p.11.
Dobrica Savic, above note 73, at p.15
Ion Gorita Wolfgang Münch, “Review of the Headquarters Agreements Concluded by the Organizations of the United Nations System: Human Resources Issues Affecting Staff “United Nations, Geneva 2004, p.v
