Volume 03 Issue 01-2023
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International Journal Of Law And Criminology
(ISSN
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VOLUME
03
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Pages:
21-27
SJIF
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article examines the application of privileges and immunities of representative offices of international
organizations in member states. It contains a detailed analysis and deliberation of the legal basis of privileges and
immunities of representative offices of international organizations in Member States. The most problematic issues of
the application of privileges and immunities of representative offices of international organizations in member states
are highlighted, Based on the study, it is proposed to take a number of practical measures.
KEYWORDS
International organizations, representative offices of international organizations, diplomatic law of international
organizations, convention, immunities and privileges, freedom of movement, freedom of relations, SCO, EU,
Uzbekistan.
INTRODUCTION
International organizations can be attributed to the
most diverse and developed mechanisms of the
system of international relations. A significant increase
in international organizations, as well as a noticeable
increase in their activity, is a remarkable phenomenon
of modern international development.
Conceptually, we note that the interaction of the
international organization, its member states, and
other actors of international relations is carried out
Research Article
PRIVILEGES AND IMMUNITIES OF REPRESENTATIVE OFFICES OF
INTERNATIONAL ORGANIZATIONS IN MEMBER STATES
Submission Date:
January 16, 2023,
Accepted Date:
January 21, 2023,
Published Date:
January 26, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue01-05
Rakhmanov Shukhrat
Candidate Of Legal Science, Associate Professor, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 01-2023
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International Journal Of Law And Criminology
(ISSN
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03
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OCLC
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Servi
both within the organization itself and with the help of
representative offices - representative offices of
member states attached to an international
organization
and
representative
offices
of
international organizations with member states. Such
a complex activity in turn gives rise to the action of
several legal systems at once. As rightly indicated in the
author's abstract of thesis I.A.Chistodovoya, “in the
case
of
an
international
intergovernmental
organization, the representation is subject to its
internal legal order, while the staff of the
representative office, with the exception of those
hired from local citizens, have the legal status of
international employees. In addition, each office is
subject to international law, defining its status, rights
and obligations. And, finally, each mission and its
personnel are subject to the internal law and order of
the host country within its territorial jurisdiction” [1,
p.22].
Thus,
the
representations
of
international
organizations are subordinated to several legal
systems at once
—
the diplomatic law of international
organizations, the internal law of the international
organization, and the legislation of the receiving state,
i.e. “Triangles”
- constituent documents and special
acts on immunities and privileges of an international
organization, agreements on the seat of an
international organization, and, finally, the national
legislation of the host state [2, p.20].
THE MAIN FINDINGS AND RESULTS
By fair statement of H.Vakhabov, “one of the means of
ensuring the impartial activity of international
organizations and their representative offices is
undoubtedly privileges and immunities. International
organizations and their representative offices, along
with and on an equal footing with diplomatic missions
and consular institutions of states, have corresponding
privileges and immunities” [2, p.19]. We note in
particular that representative offices of international
organizations need even more privileges and
immunities than the organization itself, since the
organization resides in the territory of one or a
maximum of several states, and the representation on
the territory of all Member States. For example, the UN
has more than 160 representative offices and offices.
All this causes the fact that the offices of international
organizations, residing in the territory of the Member
States, are subjected to pressure from them, not only
political but also legal, in connection with which arises
the question of the privileges and immunities of the
offices of international organizations on the territory
of Member State.
Privileges
and
immunities
of
international
organizations and their representative offices are
granted in order for international organizations, being
the collective bodies of the subjects of international
law that created them and by their nature becoming
derivative subjects, freely perform their functions [2,
p.19].
E.Shibaeva and M.Potochny adhere to the same
approach, noting that “the privilege and immunities of
international organizations and their representative
offices are of a functional nature, i.e. are provided for
the organization to achieve its goals and for the
unhindered performance of its functions by its officials
[3]. This widespread conclusion is justified by the
provisions of the Charter of the United Nations, where
in Art. 105 it is established that “The Organization shall
enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the
fulfilment of its purposes” [4]. It should be noted that
a similar provision is contained in Art. 8 Charter of the
Shanghai Cooperation Organization, (SCO) where it is
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no
ted that “As a subject of international law, SCO shall
have international legal capacity. It shall have such a
legal capacity in the territory of each Member State,
which is required to achieve its goals and objectives”
[5].
In this regard, we note that the charters and other
constituent acts of international organizations contain
provisions on general legal personality, as well as the
legal capacity of the organization in the field of
privileges and immunities. However, they do not
contain similar provisions in relation to representations
of an international organization. However, we can
conclude that the representation, being a logical
continuation of an international organization on the
territory of a Member State, as well as entering its
system, enjoys a similar legal personality, as well as
legal capacity in the field of privileges and immunities.
Our conclusion follows from the principle of granting
privileges and immunities to diplomatic missions, to
which privileges and immunities are granted by virtue
of the fact that they are a logical continuation of a
sovereign state, and also are the foreign policy bodies
of a sovereign state [6].
At the same time, we note that the statutes and other
constituent acts, although they establish the principle
of granting privileges and immunities, however, their
specific scope and content is not reflected.
With regard to the international organizations
themselves, the specific scope of privileges and
immunities is expressed in special treaty acts on the
privileges and immunities of an international
organization.
There are three types of such agreements:
1. International treaties of a general nature on the
privileges
and
immunities
of
international
organizations (eg, the Convention on the Privileges
and Immunities of the Specialized Agencies of
November 21, 1947);
2. Special international treaties on the privileges and
immunities of a particular international organization
(eg, Convention on the Privileges and Immunities of
the United Nations of February 1946, Convention on
the Privileges and Immunities of the Danube
Commission of May 15, 1963, Convention on privileges
and immunities of the Shanghai Cooperation
Organization of June 17, 2004, and others);
3. Special international treaties on privileges and
immunities or on the status of a specific div of an
international
organization
(eg,
SCO
bodies:
Regulations on the Council of Heads of States of the
Shanghai Cooperation Organization of May 29, 2003,
Regulations on the Council of Heads of Governments
of the Shanghai Cooperation Organization from 29
May 2003, Regulations on the Council of National
Coordinators
of
the
Shanghai
Cooperation
Organization on May 29, 2003 and Regulations on the
Regulations of the Executive Committee of the
Regional Anti-Terrorist Structure of the SCO on May 29,
2003.
As we can see, none of the treaties specifically stipulate
the privileges and immunities of the representations of
international organizations. At the same time, we note
that the contracts of the second group disclose the
privileges
and immunities of the organization’s
employees during a business trip stay in a Member
State, etc.
Therefore, we note that the privileges and immunities
of representative offices of international organizations
receive primary and basic consolidation in bilateral
treaties and memorandums on the opening of a
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representative office and its status between a
particular international organization and a member
state. An absolute majority of states, including the
Republic of Uzbekistan, adhere to this practice.
We note that the privileges and immunities of
representative offices of international organizations
are established in bilateral agreements between the
international organization and the host state. Based on
bilateral agreements and memorandums, international
organizations were opened in the Republic of
Uzbekistan such as the UN, the OSCE, the EU Mission,
FAO and others. However, these agreements and
memorandums contain a minimum of provisions (all of
a general and reference character) on privileges and
immunities, which raises many questions related to the
status, and finally, the privileges and immunities of
these representations. In this connection, we believe
that there is an urgent need to develop and adopt a
Convention on the status, privileges and immunities of
representative offices of international organizations.
We also note that the privileges and immunities of
representative offices of international organizations,
as well as their legal consolidation, are similar to those
of international organizations. For example, the
privilege and immunities of the SCO Regional
Antiterrorist Structure (SCO RATS) are defined in the
Agreement between the member states of the
Shanghai Cooperation Organization on the Regional
Antiterrorist Structure of June 7, 2002, in the Protocol
on Amendments to the Agreement between the
Member States of the Shanghai Cooperation
Organization on the Regional Anti-Terrorism Structure,
signed on June 7, 2002, as well as in the Agreement
between the Government Uzbekistan and the
Shanghai Cooperation Organization on the conditions
of stay of the Regional Anti-Terrorist Structure of the
Shanghai Cooperation Organization in the Republic of
Uzbekistan on June 17, 2004).
The privileges and immunities of the RATS SCO are
identical to the privileges and immunities of the SCO
itself and come down to the following groups:
administrative and judicial immunity of property,
inviolability of premises and vehicles, the right to
protection of premises, tax and customs privileges, the
right to use ciphers, courier and other types of
communication,
receiving
and
sending
correspondence, placing a flag, emblem and other
symbols on the premises and on vehicles [7].
Thus, we note that the privileges and immunities of
both the SCO itself and its div - the RATS SCO are
identical. If even in some aspect of the SCO will have a
larger range and scope of privileges and immunities,
then the RATS SCO as an organ of the SCO will have the
same amount of privileges and immunities, since
bodies of international organizations enjoy the same
amount of rights and obligations as the international
organization itself has. However, the above is not
applicable in relation to representative offices of
international organizations, since The bodies of
international organizations are considered as a whole,
and, accordingly, enjoy the same minimum amount of
privileges and immunities, and representative offices
are not considered as such, and therefore cannot
count on such a volume of privileges and immunities.
In addition, as mentioned above, the case is
complicated by the lack of international legal
regulation of the granting of privileges and immunities
to representatives of international organizations,
which fully depends on the national legislation of the
host state and the agreement on opening a
representative office in a Member State.
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Thus, it can be concluded that there is not only
international, but also national legislation regulating
the scope and procedure for granting privileges and
immunities to representatives of international
organizations, since the latter has headquarters and
operates through its representative offices in the
territory of the host state.
Now let's take a closer look at the immunities and
privileges of international organizations.
Inviolability of office space of international
organizations. Inviolability of office premises is primary
among privileges and immunities of representations of
international organizations, as well as among
privileges and immunities of diplomatic missions,
meaning that the host coun
try’s authorities can be
admitted to office premises of an international
organization to perform official duties only with the
consent of ( or at the request of) Head of
Representative Office.
This immunity is clearly reflected in all bilateral
agreements and memorandums on the opening of the
representative office of an international organization.
Judicial immunity. The next series of immunities, which
all international organizations are indisputably
possessed, are judicial immunity.
In our opinion, with regard to judicial immunity, the
wording applied in Art. 5 of Additional protocol
according to privileges and immunities of the
Organization of the Black Sea Economic Cooperation
(BSEC) of April 30, 1999. The BSEC of 1999 is the most
complete. Art. 5 reads:
“... Its property and assets,
whosesoever located and by whomsoever held, shall
be immune from search, requisition, confiscation,
expropriation or any other form of interference
whether by executive, administrative, judicial or
legislative action. For comparison, we present the
wording of Sec. 1 tbsp. II of the Convention on the
Privileges and Immunities of the United Nations dated
February 13, 1946, which states: “The United Nations,
its property and assets wherever located and by
whomsoever held, shall enjoy immunity from every
form of legal process except in so far as in any
particular case it has expressly waived its immunity. It
is, however, understood that no waiver of immunity
shall extend to any measure of execution” [8].
Judicial immunity is expressed in both general and
special international treaties on the privileges and
immunities of international organizations, and in
bilateral agreements and memorandums on the
opening
of
an
international
organization’s
representation. This immunity is clearly reflected.
Fiscal immunity. This group of immunities includes
exemption from direct taxes and customs duties, as
well as exemptions for currency. Article 3 of the
Convention on the Privileges and Immunities of the
Shanghai Cooperation Organization of June 17, 2004
states that “SCO, its property and assets use immunity
from any form of administrative or judicial
intervention, except as specified, when the
Organization itself refuses immunity. No refusal of
immunity extends to judicial and executive measures”
[9].
However, a truly complete list of fiscal immunities is
established in the Additional Protocol on the Privileges
and Immunities of the Organization of the Black Sea
Economic Cooperation of April 30, 1999. Art. 8-10 of the
1999 BSEC Additional Protocol establishes fiscal
benefits, namely: “Without being restricted by
financial controls, regulations or moratoria of any kind:
a) the BSEC may hold funds, gold or currency of any
kind, and hold and operate bank accounts in any
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currency for fulfilling its objectives; b) the BSEC may
freely transfer its funds from one country to another or
within any country and to convert any currency held by
it into any other currency”.
The BSEC, its assets, income and other property shall
be exempt: a) from all direct taxes; it is understood,
however, that the BSEC will not claim exemption from
rates, taxes or dues which are no more than charges
for public utility services; b) from all customs duties
and additional financial obligations, prohibitions and
restrictions on imports and exports in respect of
articles imported or exported by the BSEC for its
official use, except the charges for storing, customs
clearance of goods outside the places specified for this
purpose and above the working hours of customs
authorities. It is understood that articles imported
under such exemption will not be sold in the country
into which they are imported, except under conditions
agreed to with the Member State concerned; c) from
all customs duties and prohibitions and restrictions on
imports and exports of its publications, except the
charges for storing, customs clearance of goods
outside the places specified for this purpose and above
the working hours of customs authorities” [8].
Such a full approach to fiscal benefits within the
framework of the BSEC can ensure the actual
financially
independent
functioning
of
the
international organization.
Conceptually, the privileges and immunities of
representative offices of international organizations
are governed by constituent acts of international
organizations, general and special multilateral
agreements on the privileges and immunities of
international organizations, bilateral agreements and
memorandums on the opening of representative
offices of international organizations, and finally, by
national laws.
However,
the
privileges
and
immunities
of
representative offices of international organizations
receive the primary and basic fixation in bilateral
treaties and memorandums on the opening of a
representative office and their status between a
particular international organization and a Member
State. An absolute majority of states, including the
Republic of Uzbekistan, adhere to this practice.
The main difference between privileges and
immunities of representative offices of international
organizations from diplomatic is the limited nature of
the inviolability of the premises of the mission, the
absence of additional privileges and privileges for the
staff of the mission of the international organization,
although on the basis of bilateral agreements, the host
state can provide the representative office of the
international organization with full diplomatic
privileges.
The analysis made allows us to conclude that it is
necessary to raise the value and enhance the
effectiveness of the activities of The United Nations
Committee on Relations with the Host Country.
Created back in 1971 by General Assembly Resolution
2819 [10], it currently does not play the role it was
intended to play. At present, the Committee is
composed of 19 member states: Bulgaria, Canada,
China, Costa Rica, Cote d’Ivoire, Cuba, Cyprus, France,
Honduras, Hungary, Iraq, Libya, Malaysia, Mali, Russian
Federation, Senegal, Spain, United Kingdom, and the
United States. Chaired since 1971 by successive
Permanent Representatives of Cyprus, the Committee
meets every two months, although emergency
meetings can be requested by any UN member state at
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any time. All states may participate in the work of the
Committee as observers, but only Committee
members may vote. The Committee deals with the full
range of issues concerning the relationship between
the host country and the United Nations community: 1)
the security of the missions and their personnel; 2)
visas, immigration and customs procedures, and
taxation; 3) diplomatic indebtedness; 4) housing,
transportation and parking; 5) insurance, education,
and health matters; and 6) public relations issues with
the host city [11].
CONCLUSION
In our opinion, procedural changes should be made in
the committee so that its decisions are binding. In our
opinion, the decisions of the Committee must be
approved by the General Assembly or the UN Security
Council.
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