UNITED NATIONSJ URIDICAL YEARBOOKExtract from:Chapter VI. Selected legal opinions of the Secretariats of the United Nations and related inter-governmental organizations1963Part Two. Legal activities of the United Nations and related inter-governmental organizationsCopyright (c) United NationsHeinOnline -- 1963 U.N. Jurid. Y.B. x 1963CONTENTS(continued)Pag.Interpretation of Judgement No. 85 of 14 September 1962-Meaning of theword "terminate" in Staff Regulation 9.3. . . . . . . . . . .. 1582. JudgementNo. 88(3October 1963): Davidsonv. Secretary-General of theUnited NationsQuestion of reimbursement by the Secretary-General of the Social SecuritySelf-Employment Tax paid by staff members of United States nationalityon their United Nations salaries and emoluments-Interpretation of StaffRegulation 3.3 . . . . . . . . . . . . . . . . . . . . . . ... 1593. Decisionof 3October1963underarticle7 of theStatute of theTribunal:Rayrayv. Secretary-General of the United NationsSubmissionof a disputedirectlytotheAdministrativeTribunal withoutprior referencetoajoint appealsbody-Article7of theStatute of theTribunal . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1594. Judgement No. 89 (9 October 1963): Young v. Secretary-General of the Inter-national Civil Aviation OrganizationRequest by aformer Technical Assistance official of ICAO for validationby the United NationsJoint StaffPensionFund ofservice completed beforehis participation in the Fund-Interpretation of article III of the Regu-lations of the Joint Staff Pension Fund 1595. JudgementNo. 90(9October1963): Chiacchiav. Secretary-General of theUnited Nations -Powers of the Secretary-General with regard tothe termination of proba-tionary appointments-Interpretation of Staff Regulation 9.1(c) . . . 160B. DECISIONS OF THE ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL LABOURORGANISATION . . . . . . . . . . . . . . . . . . . . . . . . . ., 160CHAPTER VI. SELECTED LEGAL OPINIONS OF THE SECRETARIAT OF THE UNITED NATIONSAND RELATED INTER-GOVERNMENTAL ORGANIZATIONSA. LEGAL OPINIONS OF THE SECRETARIAT OF THE UNITEDNATIONS1. Membership of Malaysia in the United Nations . . . . . . . . . .. 1612. Right of transit tothe Headquarters district-Interpretation ofsections11and 13 of the Headquarters Agreement . . . . . . . . . . . . ... 1643. Right of access to United Nations meetings and offices ...... 1674. Privileges and immunities of permanent missionsinrespect of theirbankaccounts . . . . . . . . . . . . . . . . . . . . . . . . . ... 1685. Establishment ofjoint bodies by the United Nations and other inter-govern-mental organizations . . . . . . . . . . . . . . . . . . . . . ... 1686. Enlargement of theEconoInicCommittee, theSocial CommitteeandtheCo-ordination Committee of the EconoInic and Social Council. . . ... 1697. Compositionof the Inter-SessionalWorkingGroupof theCommittee forIndustrial Development-Continuation of membership of Peru and Poland 1708. UnitedNations Conference on Trade and Development-Questionof invitingthe Federation of Rhodesia and Nyasaland ....... 170xHeinOnline -- 1963 U.N. Jurid. Y.B. 161 1963Chapter VISELECTEDLEGALOPINIONSOFTHESECRETARIATOFTHEUNITEDNATIONS AND RELATED INTER-GOVERNMENTAL ORGANIZATIONSA. Legal opinions of the Secretariat of the United Nations(IssuedbytheOfficeofLegal Affairs)I. MEMBERSHIP OF MALAYSIA IN THE UNITED NATIONSNoteto the Secretary-General1. On 16 September 1963 the Secretary-General received a letter from H. E. Dato'OngYokeLin, whowasaccreditedtotheUnitedNationsasPermanent Representativeof theFederation of Malaya, notifying himthat bythe constitutionalprocess of amendmentthename of the "Federation of Malaya" had been changed to Malaysia. While not dealt within this letter, the change of name had been accompanied by the addition of Singapore, Sabah(North Borneo) and Sarawak to the Federation of Malaya. Changes in the Constitution ofthe Federation of Malaya were also made "so as to provide for the admission of those Statesand for matters connected therewith" (Preamble toMalaysia Bill)!.2. The Federation of Malaya became a Member of the United Nations on 17 September1957. It comprized at that time the followingeleven States-lohore,Pahang,NegriSem-biIan, Selangor, Perak, Kedah, Perlis, Kelantan, Trengganu, Penang and Malacca-whichhave atotal area of approximately 50,700 square miles andatotalpopulation of approxi-mately 7,400,000. Singapore has an area of 224 square miles and a population of approxi-mately1,700,000. Sabah (North Borneo) has an area of 29,388square miles andapopu-lation of 500,000 and Sarawak an area of 47,500 square miles and a population of 800,000.North Borneo and Sarawak had been British Crown Colonies while Singapore was listed inthe Statesman's Yearbook 1962 as a self-governing territory within the BritishCommonwealth.3. The question may be considered whether the changes which have taken place in anyway affect the membership of the Federation of Malaya in the United Nations. A carefulexaminationofthesechanges inthelight of relevant principlesof international lawandUnitedNationspracticewouldclearlyindicateanegativeanswer. Thereisnobasisforconsideringapossible effectonUnited Nationsmembershipaslong astheidentity of theFederationas aninternational personhas not beensubstantiallyaffected. Noneofthechanges which havetaken place inthemselves, either singly or collectively, affect theinter-nationalpersonality of theFederation. In international law it is clear that the acquisitionof territory by aState does not destroy the international personality or legal identity of theState acquiring the territory. Neither does a change in name or a change in the Constitutionaffect the international personality or legal identity of a State in international law.4. In Oppenheim, International Law, vol.I(8th ed., by Lauterpacht, pp. 153-154), itis stated:1 See paragraph 9 below.161HeinOnline -- 1963 U.N. Jurid. Y.B. 162 1963"A State remains one and the same International Person in spite of changes in its headship, inits dynasty, in its form, in its rank and title, and in its territory. .. whatever may be the importanceof such changes, they neither affect a State as an lnternationai Person, nor affect the personal identityof the State concerned."5. Among the precedents in United Nations practice are the following:(a) TheFederation of EthiopiaandEritrea, whichwasbrought about under UnitedNationsauspicesin1952, did not alter inanywayEthiopia'smembershipintheUnitedNations.(b) On1 June1961theNorthern Cameroonsunder British administration joined theFederation of Nigeria as a separate province of the Northern Region of Nigeria. Nigeria'smembership in the United Nations was unaffected.(c) On 1 October1961the Southern Cameroons under British administration and theCameroonRepubliccombinedintheFederal RepublicofCameroon. Inthis casethe"Republic of Cameroon", with the addition of the Southern Cameroons, becamethe"Federal Republic of Cameroon", but there was noaffect on the United Nations member-ship of the Republic.(d) The admission of Alaska and Hawaii as States in the federation of the United Statesof America in 1959 had no effect on the United Nations membership of the latter.(e) When Egypt and Syria formed a union under the name of the United Arab Republicin 1958 under a new Constitution, the United Arab Republic continued as a Member of theUnitedNations. When in1961theUnionwas dissolved, Syria automatically resumeditsseparateandoriginalmembershipintheUnitedNations, andtheUnitedArabRepubliccontinued its membership.(f) SiamwasadmittedtomembershipintheUnitedNations byGeneral Assemblyresolution 101 (1). The change of name to Thailand did not affect its membership.(g) Other changes in name include Union of South Africa to Republic of South Africa,CzechoslovakRepublictoCzechoslovakSocialistRepublic, Kingdomof YementoArabRepublicofYemen, etc. Changes inconstitutions or theadoptionofcompletelynewconstitutions have been too numerous to require enumeration.6. It may also be noted that at the time of the division of British India into India andPakistan, India was considered ascontinuing its membershipwhile Pakistan was admittedasanewState underArticle 4of theCharter. At thattimetheSixthCommittee of theGeneral Assembly was requested to indicate the rules applicable for future cases where newStates were formed through division ofa Member. The Sixth Committee replied (A/C.1/212):"1. That, asa general rule, it isin conformity with legal principlestopresume that a Statewhich is a Member of the Organization of the United Nations does not cease to be a Member simplybecause its Constitution or its frontier have been subjected to changes, and that the extinction of theState as a legal personality recognized in the international order must be shown before its rights andobligations can be considered thereby to have ceased to exist."2. That when a new State is created, whatever may be the territory and the populations whichit comprises and whether or not they formed part of a State Member of the United Nations, it cannotunder the system of the Charter claim the status of a Member of the United Nations unlessit hasbeen formally admitted as such in conformity with the provisions of the Charter."3. Beyond that, each case must be judged according to its merits."7. Anexamination of the instruments relating tothe establishment of Malaysia andthe constitutional processes followed indicate that what has occured is (1) an enlargement oftheFederationofMalayabythe "admission" ofSabah(NorthBorneo), SarawakandSingapore; (2) consequential amendments to the Constitution whichleave the existing govern-mental structure intact; and (3) a change of name to "Malaysia".162HeinOnline -- 1963 U.N. Jurid. Y.B. 163 19638. Article I of the Agreement relating toMalaysia of 9 July1963 between the UnitedKingdom of Great Britain and Northern Ireland,the Federation of Malaya, North Borneo,Sarawak and Singapore 2 provides as follows:"The Colonies of North Borneo and Sarawak and the State of Singapore shall be feder-ated with the existing States of the Federation of Malaya as the States of Sabah, Sarawak andSingapore in accordance with the constitutional instruments annexed to this Agreement andthe Federation shalltherafter be called 'Malaysia'."9. InarticleII theGovernment oftheFederationofMalayaundertooktosecureenactment byitsParliament of anactintheformsetoutinannexAofthe Agreement.Annex A, known as the "Malaysia Bill", consisted of amendments to the Constitution of theFederation of Malaya. The first two paragraphs of the preamble state:"WHEREAS on behalf of the Federation it has been agreed, among other things, that the Britishcolonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existingStates of the Federation as the States of Sabah,Sarawak andSingapore, andthatthe name of theFederation should thereafter be Malaysia;"AND WHEREAS, to give effect to the agreement, it is necessary to amend the Constitution ofthe Federation so asto provide forthe admissionof those States and formattels connected there-with..."10. It willbe noted that the Constitution of the Federation of Malaya is amended toprovidefor the"admission"of thethreeStates, whoshall be"federatedwiththeexistingStates of the Federation", and that "thename of the Federationshould thereafter beMalaysia." Thespecificamendments maintainthegovernmental andlegal structureofthe Federationof Malayabutchangeitsname toMalaysia, make thenecessaryadditionsto provide forthe new States, and contain special provisions relating to the new States.11. The assumptionthroughout the amendments is that the three States are admittedtothe Federation of Malaya which continues under the new name of Malaysia. Thus theGovernmentandParliament of theFederationof Malaya, withadditional representationfromthenewStates, continueas theGovernment andParliament ofMalaysia(see, forexample, sections 8,9 and 93-96). The laws of the Federation of Malaya consistent with theConstitution continue in effect but their application does not extend to the new States unlessor until it is so extended by law (section 73). Special provision is made concerning successionof the Federal Government to public lands in the three new States but no provision concerningsuccessionto the publiclandsin the Federation of Malayawas deemednecessarypre-sumably sincea continuityexists betweenthe Federation of Malaya and Malaysia (Seesection75).12. An examination of the Agreement relating toMalaysia of 9 July1963 and of theconstitutional amendments, therefore, confirms theconclusionthat theinternational per-sonalityandidentity of theFederation of Malayawasnot affectedbythechanges whichhave takenplace. Consequently, Malaysiacontinues themembershipofthe Federationof Malaya inthe United Nations.13. Even if an examination of the constitutional changes had led to anopposite con-clusion that what hastaken place was not anenlargement of the existing Federation but amerger in a union or a new federation, the result would not necessarily be different as illus-tratedbythecasesof theUnitedArabRepublic andtheFederal Republic of Cameroon.However, since in the present case it is clear that what has taken place is an enlargement ofthe Federation by the "admission" of Sabah, Sarawak andSingapore, it is not necessary toexamine the more complicated problems which arose in the case of the United Arab Republic,2Cmnd. 2094(1963).163HeinOnline -- 1963 U.N. Jurid. Y.B. 164 1963or which mightbe raised in the case of amergerof an existing State in acompletely newfederation.14. On thebasisof relevantprinciples of international law, United Nationspracticeand a study of the international and constitutional instruments involved, it may therefore beconcluded that membership inthe United Nations was not affected by (a) theadmissionofthree additional States to the Federation of Malaya (b) the change ofits name to Malaysia and(c) the constitutional changes connected therewith. The only actions which would thereforeappear necessary would be the routine notifications and administrative arrangementsnormally followed when the Secretary-General is advised of a change in the name of a Mem-berState. The enlarged Federation of Malaya continuesitsUnitedNations membershipunder its new name of Malaysia.19 September 19632. RIGHTOFTRANSITTOTHEHEADQUARTERS DISTRICT-INTERPRETATIONOF SECTIONS 11AND13OFTHEHEADQUARTERSAGREEMENT3Notetothe FourthCommittee of the General Assembly41. At its1475th meeting on11November1963the FourthCommittee requested anopinionastothelegal implicationsof thepossibleappearancebefore itof Mr. Galvao.2. TheCommitteewill wishtotake intoaccountthe limitedcharacter of thelegalstatusof an individual invited tothe Headquarters forthepurpose of appearingbefore aCommittee of the General Assembly or other organ of the United Nations.3. Section11 of theHeadquartersAgreement betweentheUnitedNationsandtheUnited States of America provides that the federal, state or local authorities of the UnitedStates shall not impose any impediments to transit to or from the Headquarters district of(among other classes of persons) persons invited to the Headquarters district by the UnitedNations on official business. While such a person is in transit to or from the Headquartersdistrict, theappropriateAmericanauthorities arerequiredtoaccordhimanynecessaryprotection.4. Apart from police protection, therefore, the obligations imposed on the host Govern-ment by the Headquarters Agreement are limited to assuring the right of access to the Head-quarters and an eventual right of departure. The Headquarters Agreement does not conferany diplomatic status upon an individual invitee because of his status as such. He thereforecannotbe saidtobe immune fromsuitor legal processduring his sojournintheUnitedStates and outside of the Headquarters district.5. Twoother provisionsof theHeadquarters Agreement serve toreinforcetherightof access totheHeadquarters. Section13(a)specifiesthat the laws andregulationsinforce, in the United States regarding the entry of aliens shall not be applied insuchmannerastointerferewiththeprivilegeof transittotheHeadquartersdistrict. This provision,however, clearly assures admission to the United States without conferring any other privilegeor immunity during the sojourn. Similarly, section 13(b) interposes certain limitations onthe right of the host Government torequire the departure of persons invited tothe Head-,3 United Nations, Treaty Series, vol. 11, p. 11.4 This opinion was given in accordance with a decision taken by the Fourth Committee at its1475th meeting in connexion with a request for a hearing concerning Territories under Portugueseadministration. It was originally made available as a conference room paper and was subsequentlycirculated as document A/CA/621in accordance with a decision taken by the Fourth Committee atits1481st meeting.164