© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
exercise of their functions in connection with the United Nations. Consequently a Membernot only has the right but is under a duty to waive the immunity of its representative inany case where in the opinion of the Member the immunity would impede the course ofjustice, and it can be waived without prejudice to the purpose for which the immunity isaccorded.’83. A similar provision is included under Section 20, for the ‘Officials’ of the UN and in Section23 for ‘Experts on missions’. Although a similar provision is not expressly stated for the UNitself, the same rule should apply also to the United Nations itself that immunity should notserve to prevent claims for compensation but rather that the ‘course of justice’ shouldprevail. Moreover, it should be emphasized yet again that this case concerns the worstpossible violations of human rights. Frowein also comes to the conclusion in the article citedabove that in this type of cases the UN are obliged to waive any possible claim to immunity(see number 74 of these Grounds of Appeal).Where the UN wrongly fails in its obligation to waive immunity, the Court may not upholdthat claim to immunity.Significance of Section 29 Convention84. The District Court dealt with Section 2 of the Convention. Where it was amazing that theDistrict Court did not include Sections 14, 20 and 23 in its judgment, it is totallyincomprehensible that the District Court actually ignored Section 29 of the Convention,under the Chapter ‘Settlement of disputes’. Section 29 reads:‘The United Nations shall make provisions for appropriate modes of settlement of:(a) disputes arising out of contracts of a private law character to which the United Nationsis a party; (…)’What emerges from the above is that already in 1946 account was taken of the possibilitythat the United Nations would be involved in a private law dispute and that it should beensured that access to justice would exist for such a dispute. That firmly establishes that© Van Diepen Van der Kroef Advocaten page 36 of 99
the decision of the District Court that an absolute immunity of the United Nations shouldexist is irreconcilable with the Convention. The fact that the United Nations has failed tocreate a legal remedy does not entail that the United Nations are unassailable. That shouldhave been all the more reason for the District Court to take jurisdiction. The Association etal. will return to this in the context of the discussion of the decision of the District Courtconcerning the right of access to the Court on the ground of Article 6 ECHR and Article 14ICCPR. With regard to those Articles the District Court for incomprehensible reasons failedto address Section 29.Interpretation in accordance with the Vienna Convention on Treaties85. The District Court has correctly held that the Convention of Vienna on the Law of Treaties(Trb. 1977, no. 169), hereafter: ‘the Vienna Convention on Treaties’, must be taken intoconsideration in the judgment of immunity norms (see legal consideration 5.11). It is notactually clear from the judgment in the case that the District Court actually reviewed theVienna Convention on Treaties and that it underpins its judgment. In that respect thejudgment suffers from an absence of grounds. If the District Court had reviewed the ViennaConvention on Treaties it would have come to a different judgment. The following serves asexplanation.86. Article 31 paragraph 1 of the Vienna Convention on Treaties reads:‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose.’Article 32 of the Vienna Convention on Treaties reads:‘Recourse may be made to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in order to confirmthe meaning resulting from the application of article 31, or to determine the meaningwhen the interpretation according to article 31:a) leaves the meaning ambiguous or obscure; or© Van Diepen Van der Kroef Advocaten page 37 of 99
- Page 2: Against:1. The State of the Netherl
- Page 6 and 7: - the motion by the State of the Ne
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- Page 11 and 12: 22. The Public Prosecutions Departm
- Page 13 and 14: Explanation of ground of appeal 427
- Page 15 and 16: eferred to the fact that the proces
- Page 17 and 18: No legal relevant interest of the S
- Page 19 and 20: The Article envisages a situation i
- Page 21 and 22: The Hague District Public Prosecuto
- Page 23: 54. The District Court is evidently
- Page 26 and 27: functional necessity. In that conte
- Page 28 and 29: only in Germany. It was not dispute
- Page 30 and 31: immunity of the UN has no absolute
- Page 32 and 33: ‘Darüber hinaus kann gefragt wer
- Page 34 and 35: the purpose would become subservien
- Page 38 and 39: ) leads to a result which is manife
- Page 40 and 41: 90. The ICJ gave an Advisory Opinio
- Page 42 and 43: of functional necessity for immunit
- Page 44 and 45: 100. Even where the District Court
- Page 46 and 47: 105. The District Court referred un
- Page 48 and 49: necessary that change is there effe
- Page 50 and 51: 115. It is also incomprehensible th
- Page 52 and 53: consideration 3.3.6). Under legal c
- Page 54 and 55: desirable that national courts do n
- Page 56 and 57: evidence of the necessity of conduc
- Page 58 and 59: The whole point of the Genocide Con
- Page 60 and 61: prevent the genocide. Worse still,
- Page 62 and 63: 137. It was known at the UN - and b
- Page 64 and 65: 144. It is established as a result
- Page 66 and 67: 151. The Basic Principles provide t
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- Page 74 and 75: is in that connection incorrect. Th
- Page 76 and 77: Ground of appeal 14178. The Distric
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- Page 80 and 81: they rely for their effectiveness o
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the decision of the District Court that an absolute immunity of the United Nations shouldexist is irreconcilable with the Convention. The fact that the United Nations has failed tocreate a legal remedy does not entail that the United Nations are unassailable. That shouldhave been all the more reason for the District Court to take jurisdiction. The Association etal. will return to this in the context of the discussion of the decision of the District Courtconcerning the right of access to the Court on the ground of Article 6 ECHR and Article 14ICCPR. With regard to those Articles the District Court for incomprehensible reasons failedto address Section 29.Interpretation in accordance with the Vienna Convention on Treaties85. The District Court has correctly held that the Convention of Vienna on the Law of Treaties(Trb. 1977, no. 169), hereafter: ‘the Vienna Convention on Treaties’, must be taken intoconsi<strong>der</strong>ation in the judgment of immunity norms (see legal consi<strong>der</strong>ation 5.11). It is notactually clear from the judgment in the case that the District Court actually reviewed theVienna Convention on Treaties and that it un<strong>der</strong>pins its judgment. In that respect thejudgment suffers from an absence of grounds. If the District Court had reviewed the ViennaConvention on Treaties it would have come to a different judgment. The following serves asexplanation.86. Article 31 paragraph 1 of the Vienna Convention on Treaties reads:‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose.’Article 32 of the Vienna Convention on Treaties reads:‘Recourse may be made to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in or<strong>der</strong> to confirmthe meaning resulting from the application of article 31, or to determine the meaningwhen the interpretation according to article 31:a) leaves the meaning ambiguous or obscure; or<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 37 of 99
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