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105. The District Court referred under legal consideration 5.14 also to the effect of Article 105paragraph 1 of the UN Charter, to the Convention and the reason for the immunity of theUnited Nations entrenched in international law. It was raised frequently above that theConvention is subordinate to the UN Charter. That is expressly stated indeed in Article 103of the UN Charter. Where the District Court states that Article 105 paragraph 1 of the UNCharter is at odds with the Convention, the District Court had the opportunity on the basisof Article 103 of the UN Charter to allow the provisions of Article 105 of the UN Charter toprevail. It remains unclear from the grounds of the District Court why more weight shouldbe given to international practice (for that matter incorrectly outlined by the District Court)and the Convention than to the express purposes of the United Nations set out in Article 1 ofthe UN Charter. On top of that the Convention under Section 29 provides the possibility tobring an action against the United Nations. There is, accordingly, an independent reviewactually built into the system of international law for the purpose of judging the conduct ofthe United Nations. The national court gets a role in this case because the United Nationsfailed for more than 60 years in their express international obligation to create a legalremedy. The European Court of Justice – as will be raised again under ground of appeal 14 –also has determined that the court must always take fundamental rights into account andthat there exists no priority for rules of the UN (ECJ EC, dated 3 September 2008, Case C-415/05 P, Al Barakaat International Foundation against Council of the European Communityand Commission of the European Communities).That entails that the District Court can and must review the immunity against fundamentalhuman rights.106. The District Court considered under legal consideration 5.14 that a substantive, ‘full’ review(in the light of Article 105 paragraph 1 of the UN Charter) would be contrary to the rationaleof the immunity entrenched in international law. That consideration does not accord withthe judgment of the Court of Justice just cited. The Association et al. affirm their positionthat they recognize in principle the right to functional immunity. It is part of internationallaw that this immunity is limited by the necessity for immunity in the exercise of the dutiesof the United Nations. The immunity is subordinate to the purposes of the UN. The right ofaccess to the Court was cited as a human right, a right that arises from Article 6 ECHR. TheAssociation et al. will return to that in a seperate ground of appeal (ground of appeal 14).© Van Diepen Van der Kroef Advocaten page 46 of 99