4.2 Article II § 2 of the Convention lays down that the UN, 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. Pursuant to article 31 of the Vienna Convention of the law of treaties (Bulletin of Treaties 1977, no. 169) a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The Court of Appeal finds that in this light the immunity referred to in article II § 2 of the Convention, which is indisputably defined as broadly as possible, is clear and, considering - amongst other things – the considerations given hereinafter regarding article 105 of the Charter, does not allow any other interpretation than that the UN has been granted the most far-reaching immunity, in the sense that the UN cannot be brought before any national court of law in the countries that are a party to the Convention.
4.3 The Association et al. take the position that the question whether the UN has immunity from prosecution should not be assessed on the basis of article II, § 2 of the Convention, but on the basis of article 105 of the Charter, which provides that the UN shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. According to the Association et al. the immunity provided for under article 105 of the Charter is more restricted than that under article II, § 2 of the Convention, because on the basis of the former a court must determine in each and every case brought before it whether the immunity invoked is necessary for the realization of the UN’s objectives. The Association et al. adopt the position that article 105 of the Charter has priority over article II, § 2 of the Convention, because article 105 subsection 3 of the Charter provides that the General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of article 105 of the Charter, but that the Convention has no scope beyond the higher-classed Charter. Moreover, the latter is believed to be confirmed by article 103 of the Charter, which provides that the obligations under the Charter take precedence over the Members’ obligations pursuant to other international treaties.
4.4 The Court of Appeal does not share the Association’s view. In the opinion of the Court of Appeal it is evident, for it appears from the considerations preceding the provisions of the Convention, that the Convention and therefore also article II § 2 of the Convention, implement (amongst other things) article 105, subsection 3 of the Charter, in the sense that article II § 2 of the Convention further substantiates which immunities are necessary for attaining the objectives of the UN. There is no indication that article II § 2 of the Convention goes beyond the scope allowed by article 105 of the Charter in this respect.
4.5 It would be of no avail to the Association et al. anyway if the invocation of the UN’s immunity was tested strictly on the basis of article 105 of the Charter, for the question that needs to be addressed is not whether the invocation of immunity in this particular case in hand is necessary for the realization of the objectives of the UN, but whether it is necessary for the realization of those objectives that the UN is granted immunity from prosecution in general.
Similar sentiment has been expressed by the United States Court of Appeals for the Second Circuit which in Brzak v. United States declared that the officials of UN were immune from action before it. The Court of Appeals inter alia observed as under;
As the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless “it has expressly waived its immunity.” Id. art. II, § 2. Although the plaintiffs argue that purported inadequacies with the United Nations’ internal dispute resolution mechanism indicate a waiver of immunity, crediting this argument would read the word “expressly” out of the CPIUN. The United Nations has not waived its immunity. See Letter from Nicolas Michel, United Nations Under-Secretary-General for Legal Affairs, to Alejandro D. Wolff, Deputy Permanent Representative of the United States of America to the United Nations (May 15, 2006); Letter from Nicolas Michel, United Nations Under-Secretary-General for Legal Affairs, to John R. Bolton, Permanent Representative of the United States, to the United Nations (Oct. 19, 2006). Consequently, the United Nations enjoys absolute immunity and the district court’s decision to dismiss the claims against the United Nations was correct.
Our conclusion is further confirmed by the International Organizations Immunities Act of 1945, 22 U.S.C. § 288a(b) (the “IOIA”), which provides that international organizations designated by the President should receive the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” The United Nations has been so designated. See Exec. Ord. No. 9698, 11 Fed. Reg. 1809 (Feb. 19, 1946). The plaintiffs argue that designated international organizations no longer have absolute immunity in all cases, because, since that act was passed, Congress has passed the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 (“FSIA”), which strips foreign sovereigns of their immunity in certain circumstances. Plaintiffs argue that it is this narrower definition of sovereign immunity that now defines what sort of immunity the IOIA applies to international organizations. Although this argument has been rejected by at least one other Court of Appeals, see Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335, 1340-42 (D.C. Cir. 1998), we need not resolve whether plaintiffs’ argument is correct for at least two reasons. The first is that, whatever immunities are possessed by other international organizations, the CPIUN unequivocally grants the United Nations absolute immunity without exception. The second is that the plaintiffs have not presented any argument, either at the district level or to us, which would suggest that one of FSIA’s exceptions to immunity would apply. Therefore, even under the plaintiffs’ interpretation of the IOIA, the United Nations would still be immune from suit.Have a look at the decision.