Privileges and Immunities of Members of the International Court of Justice, the Registrar, Officials of the Registry, Assessors, the Agents and Counsel of the Parties and of Witnesses and Experts

I. RESOLUTIONS ADOPTED ON THE REPORTS OF THE SIXTH COMMITTEE
90. Privileges and Immunities of Members of the International Court of Justice, the Registrar, Officials of the Registry, Assessors, the Agents and Counsel of the Parties and of Witnesses and Experts

By a resolution adopted on 13 February 1946, the General Assembly, with a view to ensuring that the International Court of Justice should enjoy the privileges, immunities and facilities necessary for the exercise of its functions and the fulfilment of its purposes, in the country of its seat and elsewhere, invited the Court at its first session to consider this question and to inform the Secretary-General of its recommendations. The Court has accordingly examined the problem in its various aspects during its first session, held at The Hague from 3 April to 6 May 1946, and has transmitted to the General Assembly its conclusions.[1] The General Assembly considered the recommendations of the Court during the second part of its first session, and the report of the Sixth Committee.[2] The General Assembly,

1. Approves the agreements concluded between the International Court of Justice and the Netherlands Government, as recorded in the exchange of letters between the President of the Court and the Minister for Foreign Affairs of the Netherlands (Annex).

2. Recommends that if a judge, for the purpose of holding himself permanently at the disposal of the Court, resides in some country other than his own, he should be accorded diplomatic privileges and immunities during the period of his residence there.

3. Recommends that judges should be accorded every facility for leaving the country where they may happen to be, for entering the country where the Court is sitting, and again for leaving it. On journeys in connection with the exercise of their functions, they should, in all countries through which they may have to pass, enjoy all the privileges, immunities and facilities granted by these countries to diplomatic envoys.

This provision should also apply to the Registrar and to any officer of the Court acting as Registrar.

4. Recommends that:

(a) Officials of the Court should enjoy in any country where they may be on the business of the Court, or in any country through which they may pass on such business, such privileges, immunities and facilities for residence and travel as may be necessary for the independent exercise of their functions.

The Registrar, and any officer of the Court acting as Registrar, should, while on the business of the Court, be accorded diplomatic privileges and immunities.

(b) Inasmuch as these privileges and immunities are granted to officials of the Court in the interests of the International Court of justice, and not for the personal benefit of the individuals themselves, the Registrar of the Court, with the President's approval, should have the right and the duty to waive the immunity in any case where, in his opinion, the immunity would impede the course of justice, and can be waived without prejudice to the interests of the Court. In the case of the Registrar, the Court should have the right to waive immunity.

5. Recommends that:

(a)

(i) The agents, counsel and advocates before the Court should be accorded, during the period of their missions, including the time spent on journeys in connexion with their missions, the privileges and immunities provided for in article IV, sections 11, 12 and 13 of the Convention on the privileges and immunities of the United Nations under the conditions of article IV, section 15, of that Convention.

(ii) Assessors of the Court should be accorded, during the period of their missions, including the time spent on journeys in connexion with their missions, the privileges and immunities provided for in article VI, section 22, of the Convention on the privileges and immunities of the United Nations.

(iii) Witnesses, experts and persons performing missions by order of the Court should be accorded, during the period of their missions, including the time spent on journeys in connexion with their missions, the privileges and immunities provided for in article VI, section 22, of the Convention on the privileges and immunities of the United Nations.

(b) Inasmuch as the privileges and immunities referred to above under (a) are granted in the interests of the good administration of justice and not for the personal benefit of the individuals themselves, the appropriate authority should have the right and the duty to waive the immunity in any case where, in its opinion, the immunity would impede, and can be waived without prejudice to, the course of justice.

For this purpose, the competent authority in the case of agents, counsel and advocates representing a State will be the State concerned. In other cases (including those of assessors of the Court, persons performing missions by order of the Court and witnesses or experts), the competent authority will be the International Court of Justice or, when the Court is not sitting, the President of the Court.

6. Recommends that:

(a) The authorities of Members should recognize and accept United Nations laissez-passer, issued by the International Court of Justice to the members of the Court, the Registrar and the officials of the Court, as valid travel documents, taking into account the provisions of sub-paragraph (b).

(b) Applications for visas (where required) from the judges of the Court and the Registrar should be dealt with as speedily as possible. All other holders of laissez-passer should receive the same facilities when the applications for visas are accompanied by a certificate that they are travelling on the business of the Court. In addition, all holders of laissez-passer should be granted facilities for speedy travel.

(c) Similar facilities to those specified in subparagraph (b) should be accorded to experts and other persons who, though not the holders of United Nations laissez-passer delivered by the International Court of Justice, have a certificate that they are travelling on the business of the Court.

Fifty-fifth plenary meeting,
11 December 1946

Annex Exchange of Letters between the President of the International Court of Justice and the Minister for Foreign Affairs of the Netherlands

I. LETTER FROM THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE TO THE MINISTER FOR FOREIGN AFFAIRS OF THE NETHERLANDS

The Hague, 26 June 1946. Monsieur le Ministre, As Your Excellency is aware, the General Assembly of the United Nations, on 19 January 1946, instructed its Sixth Committee to consider the question of the privileges, immunities and facilities to be granted to the United Nations. In accordance with these instructions, the Sixth Committee prepared a number of draft resolutions. One of these relates to the adoption of a General Convention containing an Article V, in which the privileges, immunities, exemptions and facilities to be enjoyed as a general rule by the officials of the Organization are set out. As regards the International Court of Justice, the Sixth Committee devoted to it a special resolution. After considering the question of the privileges and immunities to be accorded to members of the Court, to the Registrar and the Court's staff, and to the agents, counsel and advocates of the parties, the resolution recommended that, to ensure that the Court shall enjoy the privileges, immunities and facilities necessary for the exercise of its functions and the fulfilment of its purpose, in the country of its seat and elsewhere, the Court shall make recommendations, to be forwarded to the Secretary-General. The Assembly's reason for dealing separately with the case of the International Court of Justice and for asking it to formulate proposals was that the Court's Statute, which is annexed to, and forms an integral part of, the Charter, provides in Article 19, that, when engaged on the business of the Court the members of the Court shall enjoy diplomatic privileges; while Article 42 lays down that the agents, counsel and advocates of the parties before the Court shall enjoy the privileges and immunities necessary to the independent exercise of their duties. Another reason was, doubtless, that the Court is an organism whose members with their small staff, perform duties of a special character and whose requirements are consequently different from those of the other organs of the United Nations. In any case, as regards Netherlands territory, negotiations have taken place between representatives of the Netherlands Foreign Ministry and representatives of the Court, with a view to giving effect in the most satisfactory way possible to the above mentioned Assembly resolution. In accordance with the excellent relations that have always existed between international judicial bodies and the Government of the Netherlands, these conversations led to an agreement on the general principles that should govern the matter. Those principles are set out in the appendix to the present note. In communicating this document to Your Excellency, I have the honour to ask you to confirm that its content is in accordance with the agreement reached. I would add the following: In the report in which the Court forwards its recommendations on privileges and immunities, the Secretary-General is requested to ask the General Assembly to declare the agreement reached between the Netherlands Government and the Court to be satisfactory. Special mention is made of the traditional liberality of the Netherlands in this matter. On the other hand, I trust that you will agree with me that the question of precedence, formerly dealt with in paragraph IV of the General Principles annexed to the letters exchanged on 22 May 1928, between the President of the Permanent Court of International Justice and the Netherlands Minister for Foreign Affairs, remains outside the present agreement. I should be grateful if you would confirm your agreement on this point. (Signed) J. President of the International
Court of justice.

APPENDIX

1. As concerns the privileges, immunities, facilities and prerogatives, within the territory of the Netherlands, of members and staff of the International Court of Justice of other than Dutch nationality:

(a) The members of the Court will, in a general way, be accorded the same treatment as heads of diplomatic missions accredited to Her Majesty the Queen of the Netherlands.

As regards the privileges, immunities and facilities above-mentioned, this provision applies also to the Registrar of the Court and to the Deputy Registrar when acting for the Registrar.

(b) The Deputy Registrar of the Court will, in a general way, be accorded the same treatment as counsellors attached to diplomatic missions at The Hague.

The higher officials of the Court - first secretaries and secretaries - will, in a general way, be accorded the same treatment as secretaries attached to diplomatic missions at The Hague.

(c) The other officials of the Court will be treated as officials of comparable rank attached to diplomatic missions at The Hague.

2. Members of the Court, the Registrar and higher officials of the Court who are of Netherlands nationality are not answerable to the local jurisdiction for acts performed by them in their official capacity and within the limits of their duties.

Netherlands nationals of whatever rank are exempt from direct taxation on the salaries allotted to them from the Court's budget.

3. The wives and unmarried children of members of the Court, the Registrar and the higher officials of the Court, when of non-Netherlands nationality shall receive the same treatment as the head of the family, if they live with him and are without profession. The household of the family (governesses, private secretaries, servants, et cetera) occupy the same position as is accorded in each case to the domestic staff of diplomatic persons of comparable rank.

4. Privileges and immunities are granted in the interests of the administration of international justice and not in the personal interest of the beneficiary.

As concerns officials of the Registry, the Registrar, with the President's approval, may withdraw their immunities, with due regard to the principle laid down in the previous paragraph. In the case of the Registrar, this duty shall rest with the Court.

5. The assessors of the Court and the agents, counsel and advocates of the Parties, shall be accorded such privileges, immunities and facilities for residence and travel as may be required for the independent exercise of their functions.

Witnesses and experts shall be accorded the immunities and facilities necessary for the fulfilment of their mission.

2. LETTER FROM THE MINISTER FOR FOREIGN AFFAIRS OF THE NETHERLANDS TO THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

The Hague, 26 June 1946 Monsieur le Président, I have the honour to acknowledge receipt of Your Excellency's letter of 26 June, in which you draw my attention to the resolution of the Sixth Committee of the United Nations General Assembly, concerning privileges and immunities to be granted to the International Court of Justice. I was much pleased to note that Your Excellency was good enough to mention that the conversations that took place between representatives of the Court and representatives of my Ministry were marked by a continuance of the excellent relations that prevail by tradition between international judicial organizations and Her Majesty's Government, and I hasten to assure Your Excellency that Her Majesty's Government also has a happy recollection of the relations that existed between it and the Permanent Court of International Justice. In accordance with Your Excellency's request, I wish to confirm that the Appendix attached to your above-mentioned letter fully corresponds to the agreement reached during the conversations and exactly reproduces the Netherlands Government's views on the subject. I note with much satisfaction that in the report in which the Court forwards its recommendations concerning privileges and immunities requesting the Secretary-General of the United Nations to beg the General Assembly to declare the agreement reached between the Netherlands Government and the Court entirely satisfactory - special mention is made of the liberal traditions of the Netherlands in this matter. With reference to the last paragraph of Your Excellency's letter above-mentioned, I beg to confirm that it is understood that the question of precedence formerly dealt with in paragraph IV of the General Principles attached to the letters exchanged between the President of the Permanent Court of International Justice and the Netherlands Minister for Foreign Affairs, dated 22 May 1928, remains outside the present Agreement. (Signed) J. Minister for Foreign Aflairs.

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[1] Document A/105. [2] Document A/202.