ASIL Insights

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            A former member of British Prime Minister Tony Blair's cabinet has asserted that British intelligence services monitored United Nations Secretary-General Kofi Annan's telephone conversations in the period leading up to the war in Iraq in 2003.  Allegedly, this was done by placing bugging devices in Mr. Annan's office. [1]   In addition, Richard Butler, the former U.N. chief weapons inspector for Iraq, has said that while he was serving in that position his calls from the U.N. were monitored by the United States, the United Kingdom, France and Russia.  He said that when he wanted to make unmonitored calls, he would leave the U.N. building to do so. [2]

            This Insight sets out the basic provisions of international agreements that might bear on the legality of such monitoring, without attempting to reach a legal conclusion.  The United Nations Charter does not deal specifically with this issue, but it does require all member states to give the U.N. "every assistance in any action it takes in accordance with the present Charter" (Article 2(5)), and it provides in Article 100(2):

            Each Member of the United Nations undertakes to respect the exclusive international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

Moreover, Article 105(1) of the U.N. Charter says:

            The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

            The primary reason for endowing the United Nations (and other intergovernmental organizations) with privileges and immunities is to ensure the organization's independence by protecting it from interference by governments. [3]   Article 105(1) does not define the privileges and immunities needed for this purpose, but they are fleshed out by other treaties.  Particularly significant is the General Convention on the Privileges and Immunities of the United Nations, [4] a multilateral treaty dating from 1946.  It currently has 148 states parties, including the United States, United Kingdom, France and Russia.  It provides in Article II, Section 3:

            The premises of the United Nations shall be inviolable.  The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.

Fred Eckhard, the spokesperson for the U.N. Secretary-General, relied primarily on this provision when he asserted that the practice of monitoring the Secretary-General was illegal. [5]

            The General Convention does not specifically mention interception or monitoring of telephone calls, but it does reflect a recognition of the United Nations' need for private communications when it says in Article III, Section 10, "The United Nations shall have the right to use codes and to despatch and receive its correspondence by courier or in bags, which shall have the same immunities and privileges as diplomatic couriers and bags."  The Vienna Convention on Diplomatic Relations, another multilateral treaty, sets out the privileges and immunities of diplomats and diplomatic property.  Article 27(1) says, "The receiving State shall permit and protect free communication on the part of the mission for all official purposes."  It allows the use of code or cipher.  Article 27(2) provides, "The official correspondence of the mission shall be inviolable."  Article 27(3) prohibits the opening of the diplomatic bag.

            The General Convention on the Privileges and Immunities of the United Nations also gives the Secretary-General and all Assistant Secretaries-General "the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law."  (Article V, Section 19.)  Similar privileges and immunities are given to resident representatives of U.N. member states under Article V, Section 15 of the United Nations Headquarters Agreement, [6] which is a bilateral agreement between the U.N. and the United States.    The Vienna Convention on Diplomatic Relations provides in Article 31(1) that a diplomatic agent shall "enjoy immunity from [the receiving state's] civil and administrative jurisdiction," except in certain cases unrelated to the present situation. 

            The Vienna Convention also provides in Article 22(1) that the premises of the diplomatic mission are inviolable, and the agents of the receiving state may not enter them without consent.  The same principle applies directly to U.N. headquarters.  The United Nations Headquarters Agreement provides in Article III, Section 9(a):

            The headquarters district [in New York City] shall be inviolable.  Federal, state or local officers or officials of the United States, whether administrative, judicial, military or police, shall not enter the headquarters district to perform any official duties therein except with the consent of and under conditions agreed to by the Secretary-General.

            The U.N. General Assembly (or the Security Council, if no permanent member casts a veto) could refer any differences regarding the interpretation or application of the General Convention on the Privileges and Immunities of the United Nations to the International Court of Justice for an advisory opinion.  Unlike most ICJ advisory opinions, in this type of case "The opinion given by the Court shall be accepted as decisive by the parties."  (General Convention Article VIII, Section 30.)  In other words, the opinion would be binding on the parties.

            The Headquarters Agreement contains its own dispute-settlement provision.  It calls for arbitration by a three-member tribunal.  The decision of the tribunal is "final."  (Headquarters Agreement Article VIII, Section 21.)  The Headquarters Agreement in Article III, Section 8, also gives the United Nations the power to make regulations for the Headquarters District in New York "for the purpose of establishing therein conditions in all respects necessary for the full execution of its functions."  Presumably, the U.N. General Assembly could use this authority to prohibit future attempts to monitor telephone calls to or from the Headquarters District.

            Finally, when the United States communicated its consent to the Headquarters Agreement in 1947, it did so subject to the provisions of U.S. Public Law 357. [7]   Section 6 of Public Law 357 provides in part, "Nothing in the [Headquarters Agreement] shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security . . . ."  The context for this provision was the U.S. desire to control the movement of U.N.-related persons and visitors to destinations outside the U.N. headquarters district and its immediate vicinity.  Nevertheless, the quoted language might be construed broadly to contemplate even U.S. security measures within the headquarters district.

            Even so, the U.N.'s privileges and immunities under the United Nations Charter and the General Convention on the Privileges and Immunities of the United Nations would remain in force, since the Charter and the General Convention are separate legal instruments not governed by the Headquarters Agreement.  Moreover, Article 103 of the U.N. Charter says, "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

About the Author: 
Frederic L. Kirgis is Law Alumni Association Professor at Washington and Lee University School of Law.  He has written books and articles on international law, and is an honorary editor of the American Journal of International Law.  The author is grateful to Professor José Alvarez for his very helpful comments on a draft of this Insight. Any errors or omissions are the author's own.

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