Writ of summons - Van Diepen Van der Kroef

UN but also to the purposes that arise from a specific mandate, such as the mandate toensure protection of the Srebrenica Safe Area and its population.449. Article 105 paragraph 3 UN Charter provides that the General Assembly of the UN canpropose Conventions with a view to determining the details of the application ofparagraphs 1 and 2 of Article 105 UN Charter. That does not entail, of course, that suchelaboration can set aside the rule laid down in Article 105 paragraph 1 UN Charter. TheConvention on the Privileges and Immunities of the UN was adopted by the GeneralAssembly of the UN in 1946. It follows from that Convention that where the UN hasimmunity, the UN can waive that immunity. Article II paragraph 2 of this Conventionstates:‘The United Nations (…) shall enjoy immunity from every form of legal process exceptinsofar as in any particular case it has expressly waived its immunity.’In the present case there is no question of any waiver as the UN has no immunity, as willbe shown.450. In the case of Manderlier against the UN from 1966 cited above (in the framework ofaddressing the issue of the legal personality of the UN) the UN advanced no defence onthe merits but invoked immunity under Article 105 of the UN Charter. The Tribunal inBrussels held that the complaint against the UN could not be heard on the ground of itsimmunity. The Court of Appeal in Brussels upheld that decision in its judgment of 15September 1969 (69 ILR 139). In that case the Court of Appeal assumed that it followedfrom Article II paragraph 2 of the Convention on Privileges and Immunities that the UNwas always entitled to immunity if the UN did not waive its immunity. That reasoning isfaulty. Waiver is an issue only where the UN enjoys immunity and to the extent thatsuch immunity arises under Article 105 paragraph 1 UN Charter. As was shown abovethe immunity defined there is restricted to what is necessary for the fulfilment of itspurposes. It is self-evident that the issue of the involvment of the UN in cases ofgenocide certainly does not fall under a purpose of the UN and consequently must becapable of being subject to judicial review. In addition, it must be clear that a© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com187