© Van Diepen Van der Kroef Advocaten

functional necessity. In that context the Association et al. will examine the judgment in theManderlier case. The Association et al. will also raise the issue that with reference to theliterature and the Report of the Advisory Commission on Issues arising under PublicInternational Law (CAVV) that given the functional character of the immunity of the UN theright of access to the court weighs more heavily than immunity. The basis for the immunityof the UN is Article 105 paragraph 1 of the UN Charter. That Article confines immunity towhat is necessary for the fulfilment of purposes. Immunity is thus functionally determinedand is not itself an objective. Given the Convention on Privileges and Immunities of 13February 1946, which derives from the UN Charter, the UN – to the extent that it isestablished that there exists a functional necessity for immunity – should have waived itsimmunity. The Association et al. will address further in the context of this ground of appealthat the Convention prescribes access to the court in order to be able to bring proceedingsagainst the UN (Section 29). The existence of that section demonstrates that an absoluteimmunity was never intended by the Member States and was never created. Furthermore,the substance and import of the Vienna Convention on Treaties is entirely different to thatwhich the District Court has ascribed to it. In the context of discussing that treaty theAssociation et al. will cite foreign literature on the incorrectness and injustice of anabsolute immunity. Subsequently in this ground of appeal attention will be paid to thelearned opinion of the International Court Justice (ICJ), which opinion expressly opens thepossibility not to accord immunity on the ground of ‘the most compelling reasons’. TheAssociation et al. will demonstrate that such compelling reasons exist pre-eminently in thiscase. Finally, the Association et al. will examine the fact that the District Court indicatedthat it took international practice in part as the criterion for its decision. The District Courtactually failed to understand that the practice is entirely different to its understanding ofit, even if such practice actually were to exist. Here the question can be raised whether‘the practice’ does justice to this case.61. The District Court erroneously, at least insufficiently, reviewed whether the necessity for afunctional immunity for the UN existed in this exceptional case. If and insofar as such areview was conducted the District Court erred at law regarding the functional immunity ofthe UN.© Van Diepen Van der Kroef Advocaten page 26 of 99