IMMUNITIES AND PRIVILEGES OF UN AGENCIES IN ETHIOPIA: PROBLEMS AND POSSIBLE REMEDIES.

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Ethiopia was founding members of UN and a host country for more than one hundred diplomatic missions including UN agencies. It was a party to the 1946 Convention on Immunities and Privileges of UN agencies which bares domestic Courts from exercising jurisdiction concerning disputes involving UN agencies. This creates a vacuum of alternative legal remedy available for Ethiopian citizens to seek justice in disputes that involve UN agencies. The inadqency of the Convention in settling abuses of immunities leads to violation of right to justice in Ethiopia. The problem initially arises due to the provisions of the Convention which provides immunity from any form legal process of domestic judicial jurisdiction. This gave room for rogue officials and staffs to engage in civil and criminal activities for private interests.Lack of judicial jurisdiction on immuned and privileged persons resulted in abuses of rights in Ethiopia. Due to lack of immunity act and absence of effective remedy to claimants, individual?s right violated because of unable to claim their right against illegal act done by persons enjoying immunity. This article attempt to explore problems related to implementation of immunities and privileges of UN agencies in Ethiopia and examine available remedies for individuals abused by immunities of UN agencies.
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  ISSN: 2320-5407 Int. J. Adv. Res. 6(1), 143-158 143    Journal Homepage: - www.journalijar.com   Article DOI: 10.21474/IJAR01/6197 DOI URL:  http://dx.doi.org/10.21474/IJAR01/6197 RESEARCH ARTICLE IMMUNITIES AND PRIVILEGES OF UN AGENCIES IN ETHIOPIA: PROBLEMS AND POSSIBLE REMEDIES. Yohannes Tessema Gerbi. ……………………………………………………………………………………………………....   Manuscript Info Abstract …………………….   ………………………………………………………………    Manuscript History Received: 03 November 2017 Final Accepted: 05 December 2017 Published: January 2018 Keywords:- Immunities and Privileges, UN agencies, Convention, Mediation, Human rights. Ethiopia was founding members of UN and a host country for more than one hundred diplomatic missions including UN agencies. It was a  party to the 1946 Convention on Immunities and Privileges of UN agencies which bares domestic Courts from exercising jurisdiction concerning disputes involving UN agencies. This creates a vacuum of alternative legal remedy available for Ethiopian citizens to seek justice in disputes that involve UN agencies. The inadqency of the Convention in settling abuses of immunities leads to violation of right to justice in Ethiopia. The problem initially arises due to the provisions of the Convention which provides immunity from any form legal process of domestic judicial jurisdiction. This gave room for rogue officials and staffs to engage in civil and criminal activities for private interests.Lack of judicial jurisdiction on immuned and privileged persons resulted in abuses of rights in Ethiopia. Due to lack of immunity act and absence of effective remedy to claimants, individual‟s right violated because of unable to claim their right against illegal act done by persons enjoying immunity. This article attempt to explore problems related to implementation of immunities and privileges of UN agencies in Ethiopia and examine available remedies for individuals abused by immunities of UN agencies. Copy Right, IJAR, 2018,. All rights reserved. …………………………………………………………………………………………………….... Introduction:- United Nation is a universal organization primarily entrusted with preservation of international peace and security. 1  Following the end of World War II major powers acknowledged the important role that UN agencies can play in  promoting international peace and cooperation. Article 105 of the Charter states that the UN shall enjoy in the territory of each of its members such privileges and immunities as are necessary for the fulfillment of its purposes and independent exercise of their functions in connection with the organization. 1 The generality the charter necessities further more precise C onvention for practical application in detail form called Convention on the Privileges and Immunities of the UN. Article 2 section 2 and 3 of the 1946 Convention states that, UN's property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in sofar as in any particular case it has expressly waived its immunity. 2 The premises of the UN shall be inviolable,  property and assets of UN wherever located and whosoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or 1  Id at pp-19 2  Convention on Immunitiesand Privileges of the United Nations, 13 February 1946, Art, 2.   Corresponding Author:- YohannesTessema Gerbi .  ISSN: 2320-5407 Int. J. Adv. Res. 6(1), 143-158 144 legislative action. 3  In addition to this the Convention obliges state parties to refrain from exercising judicial  jurisdiction on officials and staffs of UN agencies. Ethiopia, as a party to the Convention can't exercise judicial jurisdiction on UN agencies and their staffs who enjoy immunity under the Convention. Host state laws are actually applicable on UN agencies but Ethiopia lacks domestic immunity act that regulate the relationship between its citizens with international organization. 4 However, in recent years misunderstandings have occurred that resulted in the violation of UN staff privileges and immunities through arrest and detention in many parts of Ethiopia. As a result the UN staffs feel unprotected and unprivileged. On the other hand many Ethiopian citizens right to justice was violated by UN agencies because of the Convention bare courts not to adjudicate cases that involve UN agencies. This creates a vacuum of legal remedies available for individuals which involved in dispute with UN agencies. A large part of this undeniable individuals has only very limited means of brining their claim before a judicial body able to issue binding judgments in disputes involving the UN respondent. 5  It became increasingly difficult for UN agencies to rely on immunity in proceeding before courts if individuals thereby suffer a complete denial of justice due to absence of adequate alternative legal remedies to Ethiopian citizens. 6  The immunity and privileges granted to UN agencies by the Convention is functional in nature. 7  They enjoy  privileges and immunities only for those acts which are closely related to their organizational purpose. However, the extent of their functional immunity and privileges are not clear. The only available legal remedy to Ethiopian claimants is mediation in Ministry of Foreign Affairs as per section 29 of the Convention. The mediation processes is not effective, efficientand lacks legal groundto render a binding decision. Individual‟s right to seek justice on one side and obligation of Ethiopia to respect and guarantee immunities and privileges of UN agencies are nowadays the  problem likely to continue. The article has employed qualitative research methodology. The sources of this article are both primary and secondary data which employed to investigate various issues through analysis and explanation of legal concepts and court decisions. Primary data was gathered by semi-structured interviews and additionally from conventions, treaties, laws, head quarter agreements and court cases.Secondary data was collected and analyzed from selected literatures such astext books, journals, websites, scholarly articles, bar reviews, magazines, reports, news papers and unpublished theses. Court cases and interviewees persons were selected based on the purpose of the article and relevance to the issue by snowball sampling technique. The article is not concerned with diplomatic immunities and  privileges of Embassies and Consular Missions governed by 1961 Vienna Convention on diplomatic relations. Immunities and Privileges in General:- There is no internationally agreed definition of immunities and privileges of international organization. But from legal point of view the concise black's law dictionary defines immunity as exemption or protection from an obligation or penalty. 8  On the other hand privileges are special right, advantage, or benefit for a particular person or organization exemption from a liability or obligations. 9  From this we can conclude that immunities and privileges are exemption from national jurisdiction granted by authorities or states. The immunities and privileges of international organizations is recent phenomenon . 10 Immunities and privileges given to international organization  built on different legal systems and the extent of application is also different . 11   However diplomatic immunity and immunities and privileges of international organization seem similar but they manifested differently. 3  Id, Article, 3. 4  Miller, (2009), The privileges and immunities of the United Nations, International Organizations law Review, at  pp.2 5  August Reinisch, UN Immunity and access to dispute Settlements , International Law Seminar, Institute of International Law University of Vienna, Fall Semester 2010/11 at P- 1. 6  Id .pp. 3. 7  Id.pp.4 8  Black's Law Dictionary 778 (8 th ed. 2004). 9  Id.pp.587 10  Drazen Petrovic,  Privileges and Immunities of UN Specialized Agencies in Filed   activity (Preliminary Paper), (June 25, 2009) Practical Legal Problems of International Organizations, A Global Administrative Law on Public/ Private Partnerships, Accountability, and Human Rights, pp.1 11  Ibid  ISSN: 2320-5407 Int. J. Adv. Res. 6(1), 143-158 145 Theoretical Basis for Immunities and Privileges of International organizations:- Various theories have been developed to explain immunities and privileges of international organizations. Among this the main traditional theoretical justifications for diplomatic immunity are extra- territoriality, personal representation, and functional necessity. 12  The Extraterritoriality Theory:- The theory of extraterritoriality suggests that the property of a diplomat and the person of the diplomat are to be treated as if they exist on the territory of the sending state. 13  According to Wanyela, the diplomat legally resides on the soil of sending state despite the fact that the diplomat lives abroad. Because the diplomat is considered to be living in the sending state, he/she remains immune from the criminal and civil jurisdiction of the receiving state. Wilson argues this theory is ironic, considering that the diplomat would not be immune for the same illegal conduct if committed in the sending state. Not surprisingly, this theory has been described as a legal fiction, and received widespread support from international scholars and judicial opinion recently questioned and rejected this theory with view that it is too expensive, excessive and it prevents states from restricting the privileges and immunities of diplomats. 14   The Personal Representation Theory:- The personal representation theory is premisedontheideathatthediplomatisrepresentativeofasovereignstate, and thatastherepresentativehe/sheisentitledtothesameprivilegesas thesovereign. This theory enjoyed a greatest popularity in the 18th and 19th century. 15  under this theory the diplomat assumes the role the head of the sending state or the sovereign power of the state. This theory, like extraterritoriality, is not widely accepted in modern diplomatic  practice. 16  It is criticized because in many states there is no longer a monarchy and sovereignty has been transferred to the people and their elected officials. 17  Because people do not enjoy immunity from prosecutioninforeign states, their representativesshouldnoteither. 18  Inaddition, the personal representation theory offers no justification for why diplomats should be immune from jurisdiction for their private acts. 19  This theory also fails to limit the scope of diplomatic immunity and it is against the very purpose of immunity which is to facilitate international discourse. The Functional Necessity Theory:- Functional necessity is the most accepted theory for the justification of diplomatic immunity. 20  under this theory,  privileges and immunities should be limited to those necessary for the diplomat to carry out his/her official functions. 21  The justification for granting immunities to diplomatic agents is based on the need to enable normal functioning of diplomatic missions and diplomats. Indeed, functional necessity theory has been acknowledged in theViennaConventionon Diplomatic relations, UN charter and the 1946 Convention on immunities and privileges of United Nations. 22  This theory, however, has been provenviable under the 1946 UN Convention. 23  While functional immunity is the most accepted theory of diplomatic immunity, it is not without its shortcomings. For example, if functional necessity was fully implemented in the diplomatic context, who determines what, constitutes an official function? Would all official acts becovered? Once immunity is limited to covering official acts, would otherimmunitiesbefurthereroded? These are questions with potential solutions, and therefore, the theory of functional necessity presents the best opportunity for limiting diplomatic immunity. 24 The Origin and History of Immunities and Privileges of UN Agencies:- Prior to the end of Second World War, the concept of privileges and immunities of international organizations had not been widespread. 25 They have often been determined on a bilateral basis through headquarters agreements. As Jenks concluded, “ historically, the present content of international immunities derives from the experience of the League of Nations as developed by the International Labor Organization when submitted to the test of war time conditions, reformulated in certain respects in the ILO-Canadian wartime arrangements, and subsequently reviewed  by the General Assembly of the United Nations at its first session in 1946 ”. 26  International immunities first appeared 12  Charity Simuli Wanyela, (2014),  Diplomatic Privileges and Immunities: A Critical Analysis of the Vienna Convention on  Diplomatic Relations (1961), (Unpublished LL.M Research Paper, University of Nairobi), at, pp.6. 13  Id. pp. 4. 14  Id. pp. 33.  ISSN: 2320-5407 Int. J. Adv. Res. 6(1), 143-158 146 during the 19 th  Century, even though the development of international organizations did not begin to drastically increase until the postWorld WarII period. 27  The situation created by the Second World War gave new impetus to the development of international organizations. 28  This resulted creation of many international organizations such as International Postal Union, ICA, IBRD, IMF, FAO, UNESCO, and WHO. This misapplication of diplomatic immunity to officials working in international or generations created doctrinal confusion, because the international official's primary duty was to represent the organization, not their home state. 29  This misapplication had a dual effect. First, international officials were susceptible to pressure by their own state to work toward the state's interests rather than the international organizations, and second, the extension of absolute immunity to this category of individuals risked undermining their accountability for private acts. 30  Recognizing the doctrinal confusion, the drafters of the UN Charters ought to avoid this by adopting functiona limmunities and  privileges for the organization and its officials which resulted in creation of two conventions in 1946 and 1947. The drafting of the Convention on the Privileges and Immunities of the UN was proposed by the Preparatory Commission of the UN. 31 The Preparatory Commission recommended to the General Assembly that it should propose such a convention  pursuant to Articles 104 and 105 of the UN Charter. On February13, 1946 the General Assmibly, on the advice and counsel of the Sixth (Legal) Committee and the Sub-Committee on Privileges and Immunities, adopted Resolution which approved the text of the Convention and proposed it for accession by member States. 32 The Legal Frameworks for Immunities and Privileges of UN agencies:- The United Nations Charter, (1945):- After the end of World War II in 1945, to save succeeding generation from scourge of war, to reaffirm faith in fundamental human right and to maintain international peace and security world states established United Nations in San Francisco . 33   UN is the biggest global international organization in terms of membership. Following its establishment UN creates different principal organs and specialized agencies in order to accomplish its objective. At the time of establishment it was considered as necessary that it should enjoy the status of a legal person under domestic law of its member states. Such domestic legal personality is a prerequisite for the organization to effectively exercise its function. 34  Due to this UN Charter responded in a very general way in article 104 of the charter by saying that “the orga nization shall enjoy in the territory of each of its member such legal capacity as may  be necessary for the exercise of its functions and he fulfillment of its purpose . These abstract rules required some more detailed explanation in order to become workable helping UN officials as well as national courts to determine whether the UN should be considered capable of entering into a specific legal transaction or immune from a particular lawsuit directed against it. 35  In a similar way it was unclear to what extent UN officials and member state representatives to the United Nations should enjoy privileges and immunities. In article 105, paragraph 2, the drafters of the Charter opted for a functional concept when it was stated therein that representatives of the member of the United Nations and officials of the organization shall similarly enjoy such  privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization.'' 36 The Conventionon the Privileges and Immunities of UN Agencies (1946):- International immunity described as the immunity enjoyed by international organizations and their personnel. 37  Articles 104 and105 of the UN Charter provide the framework for the development of the privileges and immunities of the organization and its officials. International immunities of UN officials are premised on functional necessity as articulated in Article 105 (2) of the UN Charter. On February 13, 1946, the UN General Assembly adopted the Convention on the Privileges and Immunities of the UN. It entered in force on 17 September 1946. 37 There are currently 157 states parties to the convention out of 192 members of UN including Ethiopia. This Convention set for the system of privileges and immunities of the organization, to more fully define the concept of  privileges and immunities characterized in the Charter. 38  Pursuant to Article 105 of the UN Charter, the UN Convention, unlike the Vienna Convention, limits the privileges and immunities of UN officials to those thatare “necessary  for the independen texercise of their functions inconnection with the Organization. ” 39 Thus, the theory of functional necessity is carried to its logical conclusion in the UN Convention. 40  By uniformly applying the
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