Immunity of persons exercising their functions on bodies established under the new climate agreement

Legal assistance paper

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Date produced: 28/09/2015

The co-chairs’ tool (of 24 July, para 47) envisages that the new climate agreement (to be adopted in Paris) contains a provision on immunity from legal process for individuals who serve on a bodies and institutions of the new agreement. Is this type of provision commonly found in international treaties ? Can you assess the practice in other international fora?

Advice:

In order to function effectively, international organisations require a degree of legal protection for their headquarters, assets and personnel. Immunities of persons connected with international organisations are a form of ‘functional protection’ for the purpose of ensuring the independence of those persons and the organisation. The ‘chief administrative officer’ of an international organisation usually has the power to determine whether persons connected with that organisation have acted within the scope of their immunities.

UN Framework Convention on Climate Change

In general, members of bodies constituted under the UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol currently enjoy privileges and immunities in Germany through the 1996 secretariat’s Headquarters Agreement. Article 5, on the immunity of persons on official business of the Convention, states:

“… all persons invited to participate in the official business of the Convention shall enjoy immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Such immunity shall continue to be accorded after termination of their business. They shall also be accorded inviolability for all papers and documents.“

With regard to the scope of immunities, Article IV of the 1946 Convention on the Privileges and Immunities of the United Nations (which applies via the 1995 Agreement between Germany and the UN concerning the Headquarters of the UN Volunteers Programme) provides that while exercising their functions and during the journey to and from the place of meeting representatives of members who are not resident in Germany shall, for example, enjoy the following privileges and immunities:

“(a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind;

(b) Inviolability for all papers and documents;…

 (d) Exemption in respect of themselves and their spouses from immigration restrictions, aliens registration or national service obligations in the state they are visiting or through which they are passing in the exercise of their functions;…

 (f) The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys, and also;…”

If meetings of the COP or other UNFCCC bodies take place outside Germany, the secretariat usually enters into conference agreements with the host State. These agreements are based on the model United Nations conference agreement and ensure that the privileges and immunities outlined in the Convention on the Privileges and Immunities of the United Nations (see above) apply to those who attend the conference. It may also extend the regime to observers, other participants or personnel, and address other matters not covered in the Convention on Privileges and Immunities.

Outside the Headquarters Agreement (limited to Germany) and conference agreement (limited to the relevant host state and in time) persons serving on bodies instituted under the UNFCCC, therefore, do not in general have privileges and immunities in other countries – including Parties to the Convention and the Kyoto Protocol.

As a result, the board of the Clean Development Mechanism (CDM), has been concerned from its inception that its members may be held liable for its activities and decisions in national courts. In response, the secretariat prepared a note highlighting potential risks for members, alternates and experts of constituted bodies under the Kyoto Protocol and suggested different approaches to according privileges and immunities. These included amongst others:

  • The agreement from national and private entities that claims must only be made in accordance with the Kyoto Protocol mechanisms and made to the Executive Secretary at the headquarters of the secretariat;
  • A COP decision, supported by unilateral declarations by Parties, to confer privileges and immunities on representatives and members of its organs when performing official functions under the Protocol;
  • An amendment to the Kyoto Protocol to confer privileges and immunities on representatives and members of its organs when performing official functions under the Protocol; and

An umbrella agreement between Parties which contains provisions for privileges and immunities that could be used by States that want to host meetings of constituted bodies and visits by expert review teams.

Subsequently, in 2009, Tuvalu submitted a proposal for a new international treaty on immunities for Kyoto Protocol bodies: the draft Covenant on Immunities for persons serving on institutions established by the COP serving as MOP to the Kyoto Protocol (CMP).

The Subsidiary Body for Implementation (SBI), however, has focused on the development of an umbrella agreement. The draft text forwarded to the CMP provides for the immunity of individuals serving on the CDM Executive Board, the Joint Implementation Supervisory Committee Expert Review Teams under Article 8 Kyoto Protocol, and currently in square brackets: the Compliance Committee, the Adaptation Fund Board and other Committees, panels or groups established by the above and other relevant bodies agreed through the post-2012 process.

The matter is pending and will be reconsidered at SBI 44 (in May 2016).

Other international environmental treaties

A survey of the international treaties (17 overarching treaties with further protocols, amendments and other instruments) contained in the UN Treaty Series, Chapter XXVII on environment, indicates that only few multilateral environmental agreements contain provisions on privileges and immunities.

While many establish secretariats or bodies, yet they do not provide for privileges and immunities of staff members. Equally, many of them provide for meetings or conferences of the parties, yet do not provide for the privileges and immunities of the representatives of the parties or other attendees. In line with the arrangements related to the bodies of the UNFCCC, the immunities of these persons are usually provided for in the headquarters agreement.  For example, the Secretariat established by the Convention on Biological Diversity has privileges and immunities by virtue of the Headquarters Agreement between the Secretariat and Canada, Articles 5, 10, 11, 12.

However, there are two notable exceptions: firstly, the Convention on the Transboundary Effects of Industrial Accidents (“the Industrial Accidents Convention”), at Annex X, paragraph 4, requires a state receiving assistance to use its best efforts to afford functional privileges and immunities to the state and persons providing assistance under that Convention. Secondly, the Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora (“the Lusaka Agreement”), Articles 4(5), 5(11), 5(12) requires every party to accord privileges and immunities to the members of the Task Force established by that agreement.

Article 4 paragraph 5 of the Lusaka Agreement reads:

 “Each Party shall accord to the Director, Field Officers and the Intelligence Officer of the Task Force while engaged in carrying out the functions of the Task Force in accordance with paragraph 9 of Article 5, the relevant privileges and immunities, including those specified under paragraph 11 of Article 5.”

The Industrial Accidents Convention and the Lusaka Agreement are distinct from other agreements that merely establish a secretariat or other body located in a particular state. To accomplish the overall treaty objectives these agreements envisage persons acting in the territory of all parties. Therefore, privileges and immunities of persons connected with the organisation must be binding upon all parties, not just a host state.