ISSUES OF PRIVILEGES AND IMMUNITIES OF INTERNATIONAL ORGANIZATIONS AND THEIR OFFICIALS IN INTERNATIONAL LAW

The theory that individuals are legally equal before the law and the laws of society has been developed for a long time. Although these ideas and principles are still evolving, sometimes individuals such as international organizations and their officials are granted “additional” immunity and other facilities. This article analyzes the existing immunities and privileges in international organizations and their officials, the legal framework and the application of immunity theories of international law in particular international organizations.

VOLUME 2 ISSUE №2 E-ISSN: 2181-1024 O CTO Volume BER 2, Issue 2021 2 (2021) TSUL Legal Report 1

12.00.02 – CONSTITUTIONAL LAW. ADMINISTRATIVE LAW. FINANCE AND CUSTOMS LAW

Khakimov Rahim Rasuljonovich – First Deputy Minister of Higher and Secondary Special Education, Doctor of Law, Professor

Salaev Nodirbek Saparbayevich – Deputy Rector on Scientific Work and Innovation of Tashkent State University of Law, Doctor of Law, Professor

Rustambekov Islambek Rustambekovich – Deputy Rector on Academic Affairs of Tashkent State University of Law, Doctor of Law, Professor

Nematov Jasur Aminjonovich – Professor of the Tashkent branch of the Russian University of Economics named after GV Plekhanov

Latipov Samir Ildusovich – Director of the Center for Legal Initiatives and Innovations of the Tashkent State University of Law

Kurbanov Maruf Mamadaminovich – Head of Criminalists and Forensic Examination Department of Tashkent State University of Law, Doctor of Philosophy in Law

Narziev Otabek Sadiyevich – Head of International Private Law Department of Tashkent State University of Law, Doctor of Philosophy in Law

Khodzhaev Shakhzhakhon Akmalzhon ugli – Head of Intellectual Property Department of Tashkent State University of Law, Doctor of Philosophy in Law

Uzakova Gozal Sharipovna – Head of Environmental Law Department of Tashkent State University of Law, Doctor of Philosophy in Law

Musaev Bekzod Tursunboyevich – Head of the Constitutional Law Department of Tashkent State University of Law, Doctor of Philosophy in Law

Gafurova Nozimakhon Eldarovna – Head of the Department of International Law and Human Rights of the Tashkent State University of Law, Doctor of Law

Nematov Jurabek Nematulloyevich – Associate Professor of Administrative and Financial Law Department of Tashkent State University of Law, Doctor of Law

Yakubova Iroda Baxramovna – Associate Professor of Intellectual Property Department of Tashkent State University of Law, Doctor of Philosophy in Law

Abzalova Khurshida Mirziyatovna – Associate Professor of Department of Criminal Law, Criminology and Anti-corruption, Doctor of Law

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Akhmedova Guzalkhon Utkurovna – Associate Professor of Criminalistics and Forensic Examination Department of Tashkent State University of Law, Doctor of Law

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4 TSUL Legal Report Volume 2, Issue 2 (2021) E-ISSN: 2181-1024

12.00.02 – CONSTITUTIONAL LAW. ADMINISTRATIVE LAW. FINANCE AND CUSTOMS LAW

ABZALOVA XURSHIDA, RUZIYEV BEKHRUZ, GAFUROV ULUGBEK Anti-corruption is the demand of the present time! . .............................................................6

KHOJIYEVA RUZIGUL Issues of applying foreign experience in combating corruption to the national legal system ..........................................................................................................11

12.00.03 – CIVIL LAW. EMPLOYING LAW. FAMILY RIGHT. INTERNATIONAL PRIVATE LAW

BAKHRAMOVA MOKHINUR Jurisdictional decisions and consequences of their adoption: best practices and case analyses ..................................................................................... 16

BOBONAZAROV ALISHER Issues of privileges and immunities of international organizations and their officials in international law . ...................................................................................... 29

MAMASOLIYEVA SHAKHRIZODA Introduction of a new mechanism in creating a favorable investment climate: problems and solutions ..................................................................................................... 34

12.00.08 – CRIMINAL LAW. CRIMINOLOGY. CRIMINAL-EXECUTIVE LAW

ABULKOSIMOVA SAODATKHON The portrayal of the serial killer in in the true crime drama “The Serpent” and the problems of sympathy for serial murderers in television series . .......................... 43

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ISSUES OF PRIVILEGES AND IMMUNITIES OF INTERNATIONAL ORGANIZATIONS AND THEIR OFFICIALS IN INTERNATIONAL LAW

Keywords: international organizations, officials, immunities and privileges, legal framework, immunity theories, international law.

UDC: 341.217(042)(575.1) ORCID: 0000-0002-2013-3754

Alisher Bobonazarov, Student of Tashkent State University of Law e-mail: bobonazarovalisher55@gmail.com

The theory that individuals are legally equal before the law and the laws of society has been developed for a long time. Although these ideas and principles are still evolving, sometimes individuals such as international organizations and their officials are granted “additional” immunity and other facilities. This article analyzes the existing immunities and privileges in international organizations and their officials, the legal framework and the application of immunity theories of international law in particular international organizations.

Basic understanding of human rights theory often reflected in its being “inherent to all human beings”. In global scale these rights law lays down the responsibilities of authorities to act in particular methods or to avoid from certain acts so that it will sell and protect these fundamental rights and basic freedoms of individuals or corporations. In terms of international organizations, while providing and monitoring the implementation of human rights, they also have some immunities and facilities which are granted to perform their obligations in particular circumstances. Moreover, focusing on the protection of special privileges and immunities of persons is crucial, though everybody is seen as equal before the law. They are granted these “additional rights” so as to perform their duties independently and effectively as noted by United Nations. In terms of human rights, additional privileges and immunities are given to the officials of international organizations which is necessary to carry out their functions. First of all, international officials are persons who should act according to basic principles of international organizations law; although they are nationals of individual members, act

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exclusively in the interest of the organization itself. The issue of the statutes of international organizations can be as expressed in Article 100 of the Charter of the United Nations: “1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any Government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. 2. Each Member of the United Nations undertakes to respect the exclusively 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”. In addition, Article 105 of the Charter of the United Nations provides that: “1. 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. 2. Representatives of the Members 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” [1].

As can be understood these privileges and immunities are necessary in order to provide effectiveness and fulfillment of functions and avoid any illegal interruptions. Furthermore, Vienna Convention on Diplomatic Relations interprets the reasons and bases of adaptation of this convention and explicitly states: “Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems”.

Differentiating the “functional” immunity from “personal” is crucial when it comes to officials’ immunity. The highest officials of international organizations (chiefs of administrative bodies, their deputies and assistants) are recognized as a basic rule, and they are almost close to those who are recognized as diplomatic representatives of the states as in international law. Immunity from the jurisdiction of other officials and employees of the administrative bodies of international organizations is somewhat more limited.

Although the highest officials who have immunity from the jurisdiction and others have facilities and other privileges, this does not relate to the extent of the guaranteed immunity, or whether the activities which was committed in any period or during the performing of official functions. In other words, this immunity protects higher officials if they are performing their duties or not, while the immunity of other officials of administrative bodies protects them only within the domain of their official duties. The most importantly, it means that the highest position holding officials of the administrative bodies of international organizations can not be accountable before the authorities of the state where they are performing their duties, and in which they are located, regardless of whether they committed any minor offence or even criminal offence during their official duties or in their free time (e.g. during recreation on weekends); lower-ranking officials, however, are covered by immunity only while performing official duties [2]. For example, under the General Convention and Convention on the Privileges and Immunities of the United Nations, functional immunity is applicable. However, Secretary-General and Assistant Secretary-General shall enjoy privileges and immunities, exemptions and facilities accorded to diplomatic envoys in international law and executive heads of specialized agencies are also granted [3].

However, some of the organizations have limited immunities and are guided by economic considerations rather than political views. Some scholars admit this issue as the white space of qualification of immunities in international law, while others confirming that these organizations and their officials cannot be covered by immunity which is in accordance with nature of international organizations. It should also

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be noted that officers of global banking and monetary establishments differ from most other categories of the international civil servants in that they perform a tangible “commercial” business enterprise which can have a direct influence upon the growth and vitality of a single nation or group of countries. Furthermore, the officers of banks should be free from the direct coercion by any government, whether the government of his country or another country, and must be allowed to perform their functions in such a way as to protect the financial soundness of the organization for which they work.

The International Finance Corporation (IFC), the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD), and the International Development Association (IDA) ‒ these organizations are all specialized agencies of the United Nations. Moreover, the IDA and the IFC are highly integrated with World Bank. The Articles and basic documents of Agreement of each of these institutions provide for the privileges and facilities of the functionaries of the institution. It expresses immunity for all governors, executive directors, alternates, officers and employees from legal process for acts performed by them in their official capacities only in exceptional cases where the agency waives that immunity. And it also determines the same immunity for non-local alien registration requirements and national service obligations, immunity from taxation, exchange and travel privileges.

In other financial organizations this approach could be different, there is to say, economic approaches are preferred by Asian Development Bank (ADB) rather than political views. Article 36.2 of the Agreement Establishing the Asian Development Bank (ADB Charter) epitomizes this approach, which has also been adopted by the World Bank and other development banks, with the exception of the European Bank for Reconstruction and Development (EBRD) which is based on the principles of democracy and the transition to a market economy. As being expressed in the ADB Charter, “The Bank, its President, Vice-President(s), officers and staff shall not interfere in the political affairs of any member, nor shall they be influenced in their decisions by the political character of the member concerned. Only economic considerations shall be relevant to their decisions. Such considerations shall be weighed impartially in order to achieve and carry out the purpose and functions of the Bank” [4]. But in practice, these Multilateral Development Banks (MDBs) and International Financial Institutions (IFIs) still have the right to protect their officials and assets by bilateral agreements, and based on these agreements immunity of officials can be admitted.

For instance, an official, who works for the Resident Mission at ADB in a particular place as Senior Portfolio Specialist, could be covered only by the Agreement between the ADB and the Republic where he/she has visited. Similarly, in the case, if a staff member of ADB is covered only by the Agreement between the visited state and World Bank and this demonstrates that these facilities and immunities sometimes can be violated. If the World Bank representative’s basic rights for a fair trial have been violated, the European Convention on Human Rights defines everyone’s right to a fair trial and minimum scope of rights when a person is arrested. But these minimum rights should be provided before protection of granted privileges and immunities. In fact, the scope of immunity of international organizations and their officials is based on the Agreement or treaty and depending on the amount of work the organization performs.

However, the EBRD determines different rules in its basic documents, as in Article 51: “All Governors, Directors, Alternates, officers and employees of the Bank and experts performing missions for the Bank shall be immune from legal process with respect to acts performed by them in their official capacity, except when the Bank waives this immunity, and shall enjoy inviolability of all their official papers and

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documents. This immunity shall not apply, however, to civil liability in the case of damage arising from a road traffic accident caused by any such Governor, Director, Alternate, officer, employee or expert” [5]. In addition, Article 52 expresses privileges of these officials inclusive of travelling facilities, immunities from immigration restrictions, alien registration requirements and national service obligations. Thus, in the light of the above, it can be concluded that the EBRD takes a different approach to protecting its officials and legal personality, taking into account political considerations. To conclude, the privileges and immunities of international organizations and their officials are crucial to the effective performance of their duties. In comparison to diplomatic relations of states, privileges and immunities are usually granted to protect against interference of the host country. At the same time, diplomatic personnel remain fully under jurisdiction in their home country, so that international organizations are obliged to extend the institution of privileges and immunities to protect international personnel organizations from their states. It is often emphasized, however, that in order to perform their functions independently, international officials need additional protection from the possible efforts of the country of which they are residents to perform their duties on behalf of the international organization for which they work. Those also are the primary reasons (with a series of personal ones) that have made many countries ratify (draft) the convention at the relations of states and international companies. In other words, states on whose territory the headquarters of international organizations are located accept as true that there may not be a sufficiently powerful way to protect their interests from possible misconduct. Some of the organizations are fully endowed with these facilities, while others have them to a limited extent, especially with the exception of the EBRD. For other multilateral development banks and international financial institutions, the question of privileges and immunities is dominated by economic considerations rather than politics. Thus, this puts the “additional rights” of officials of these institutions under question. However, they can be covered by agreements to which the organization is a party.