NEW YORK CITY DIPLOMATIC PARKING PROGRAMME SHOULD BE DELAYED SAY SPEAKERS IN HOST COUNTRY COMMITTEE

27 March 1997

Press Release
HQ/573

NEW YORK CITY DIPLOMATIC PARKING PROGRAMME SHOULD BE DELAYED SAY SPEAKERS IN HOST COUNTRY COMMITTEE

19970327 Plan Scheduled to Take Effect 1 April; Some Provisions Not Consistent with International Law, Says UN Legal Counsel

A temporary delay in implementation of the New York City Diplomatic Parking Programme was requested by many speakers this morning, as the Committee on Relations with the Host Country considered the plan scheduled to take effect on Tuesday, 1 April.

Speakers noted that the opinion of the United Nations Legal Counsel on the Programme had been issued on 20 March and, while in general the Programme was found acceptable, it indicated several provisions "do not appear to be consistent with international law". Thus, most speakers said that the programme should not be implemented as scheduled, allowing time for certain elements to be clarified.

Speakers also stressed that some other components of the programme, among them the allocation of parking spaces, training of ticketing personnel and the appeals process for contested parking tickets, needed to be addressed before a new programme could be fairly implemented. Several speakers said that if a satisfactory solution to the parking issue could not be negotiated with the host country in the Committee, then it would be appropriate to take up the matter in the General Assembly.

The representative of the United States this morning defended the programme and said it could be implemented in a comprehensive manner as scheduled on 1 April. Implementation would allow the diplomatic community to receive the benefits provided in the programme and to assume their responsibilities under local parking laws, she said. She stressed that a license to drive was a privilege granted by the host country, not an absolute right.

Statements were made by Costa Rica, France, Canada, United States, United Kingdom, China, Bulgaria, Honduras, Russian Federation, Ukraine, Belarus, Portugal, Cuba, Brazil, Indonesia, Sudan, Malaysia, Pakistan and Syria.

The Committee on Relations with the Host Country will meet again on Monday, 31 March, at 10 a.m. to continue discussion of the programme.

Work Programme

The Committee on Relations with the Host Country met this morning to take up transportation issues, including the use of motor vehicles, parking and related matters.

The Committee has before it the New York City Diplomatic Parking Programme, which is described in a text prepared by the Chairman of the Committee (document A/AC.154/305) and a note verbale attached to a 14 March letter from the representative of the United States (document A/AC.154/306). In addition, the United Nations Legal Counsel has provided an opinion of the programme (document A/AC.154/307).

According to the texts, the parking programme will apply only to vehicles with license plates in the series "D" (issued to members of the diplomatic staff of the permanent missions accredited to the United Nations), "A" (issued to United Nations Secretariat, including a limited number of senior officials entitled to diplomatic status) and "C" (issued to consular corps, which does not concern the United Nations). Vehicles with "S" series plates issued to non-diplomatic staff of permanent missions) will remain subject to the full range of New York City parking enforcement measures and the substantive provisions of the programme will not apply to them.

Under the terms of the plan outlined in the text, the New York City Commission for the United Nations and Consular Corps will ensure that each United Nations mission and each consulate has in place a dedicated number of parking spots (currently, two for the office and one for the Ambassador's or Consul General's residence). Further, the New York City Department of Finance will designate a person or office in charge of reviewing tickets issued to diplomatic vehicles to ascertain which tickets are valid and which were incorrectly issued and should be dismissed.

Also, the New York Police Department will provide a telephone "hot line" where missions and consulates may report unauthorized vehicles in their diplomatic parking areas. The New York City Department of Finance will provide a monthly printout of any summonses outstanding against "D", "A" and "C" plate vehicles to the New York Regional Office of the Office of Foreign Missions, New York, and to each mission and consulate involved. A printout for United Nations mission vehicles will also be sent to the Office of Host Country Affairs at the United States Mission to the United Nations.

Further, the plan will further define a scofflaw -- someone "unresponsive" -- as anyone who has one or more outstanding violations issued against his/her car for a period of 12 months or more from the date of issuance of the violation. Scofflaw status will include collateral vehicles registered to individual diplomats. For any vehicle with scofflaw status, the

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Office of Foreign Missions, New York, will notify the vehicle registrant that the vehicle cannot be legally operated until that status is removed by the adjudication of the outstanding violation(s). Upon such notification, the State Department will request that the diplomatic plates be returned until the scofflaw status is removed. Should a vehicle with scofflaw status be towed, the diplomatic plates will be removed and it will not be released for operation without evidence of valid insurance and State Department registration.

That provision will also apply to the registrant of any vehicle identified by the City of New York as having received one or more violations for parking in front of a fire hydrant during the period from 1 January 1997 to the start of the programme. Such vehicle owners/registrants will be notified by the State Department of the existence of an outstanding fire hydrant violation and requested to satisfy it.

In the opinion of the United Nations Legal Counsel issued 20 March, in general the elements of the City programme are clearly within the scope of the host country's power to establish the laws and regulations governing the operation and parking of diplomatic vehicles and related matters and do not seem to raise objections under international law. Parts of the programme, he states, should even be welcomed as likely to reduce the current difficulty of diplomatic missions in securing parking and in voiding unjustified tickets.

For example, he continues, the City is to assume an obligation to ensure that each mission has two parking spaces and one allocated for the residence of the Permanent Representative. Further, the New York Police Department is to establish a telephone "hot line" for missions to report unauthorized vehicles parked in their diplomatic parking areas, and those unauthorized vehicles would be subject to towing. Also, the New York City Department of Finance is to provide each mission with a monthly computerized report of all parking tickets issued to its diplomatic vehicles, indicating which tickets remain outstanding. An officer of the New York City Department of Finance is to be designated to deal exclusively with tickets pertaining to the diplomatic community.

However, he states, certain provisions of the Programme do not appear to be consistent with international law. For example, removal of licence plates from vehicles towed to a place of safe keeping, and non-release of a diplomatic vehicle for operation until certain conditions are met, such as payment of a fine and/or a charge for its towing or safe keeping would appear to be enforcement measures and amount to an exercise of jurisdiction. They are, therefore, inconsistent with article 31 of the 1961 Vienna Convention on Diplomatic Relations, articles IV and V of the 1946 Convention on the Privileges and Immunities of the United Nations and article V of the 1947 Headquarters Agreement. More importantly, they would be inconsistent with the

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host country's obligation to facilitate the functioning of the missions accredited to the United Nations and of their members.

In addition, the provision of the Programme envisaging a special regime concerning any diplomatic vehicle having received any tickets for parking by a fire hydrant during the period from 1 January 1997 to the start of the Programme evidently has a retrospective element. The retroactive application of a new regime would not be consonant with general principles of law

The Legal Counsel adds, however, that the fact that the host country cannot under international law take all the measures envisaged in the Programme should not create the impression that there are no means of addressing a situation of a diplomat accredited to an international organization failing to obey local laws.

Statements

NICOS AGATHOCLEOUS, Chairman of the Committee on Relations with the Host Country, said that the two meetings of the working group on the use of diplomatic vehicles focused on the practical aspects of the proposed New York City Diplomatic Parking Programme. He said that a considerable number of delegations felt that the implementation of the Programme should be postponed. It was the general feeling of the working group that the opinion of the United Nations Legal Counsel, Hans Corell, regarding the parking programme should be considered by the Committee as a whole, he said.

EMILIA CASTRO DE BARISH (Costa Rica) said it was very important to consider all the elements of the views put forward by the United Nations Legal Counsel. She called attention to the applicable international agreements, including the 1961 Vienna Convention on Diplomatic Relations and the 1947 Headquarters Agreement, which defined the rules governing the facilities provided by the host country and the functioning of accredited missions.

The issue of violations of the New York City parking laws prior to the 1 April implementation of the proposed programme was a major concern, she said. Parking spaces for diplomatic vehicles were often taken by other vehicles. Diplomats were, thus, often forced to park in other parking spaces and were fined for doing so -- even when the space was legal for other vehicles. At issue was also the matter of appealing such fines. She noted that the number of parking spaces being made available in the proposed programme might be sufficient only for smaller missions.

She said the new parking programme had been put forward as a fait accompli. It did not, however, appear to be in compliance with international law, particularly in its retroactive elements. A further one month deferment would be appropriate to see if some of the needs of the diplomatic community

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could be fully taken into account. The programme should be fair, equitable and non-discriminatory.

HUBERT LEGAL (France) said he was concerned that one week ago a legal document had been received that was of importance to both international law and international relations. Now, four days before the parking programme was to be implemented, there was certainly a need to hear the reaction of the host country concerning the United Nations legal opinion. He was surprised that the host country had not taken the floor first. If the host country did not say anything, he would be forced to conclude that they were not interested in the issue. In that event, the case would be taken to a higher level in the Organization.

The legal opinion would not be contested by his delegation, he said. It determined that some aspects of the parking programme were contrary to international law. He noted that some measures of the parking programme had not been implemented by New York City. Diplomatic parking spaces had not been identified. In addition, the manner that fines were delivered was done in a discriminatory way. He reminded the Committee that, at the end of 1993, a similar law was presented by the New York City mayor before the elections. In closing, he said he must hear from the host country and, if not, the issue should be taken up with the General Assembly.

JOHN T. HOLMES (Canada) said it was difficult to make a distinction between the practical and the legal aspects of the parking issue. On the practical side, it was encouraging that the host country had held a briefing with the City yesterday. The need for training and supervision of ticket agents and the allocation of parking spots were brought up at the meeting. However, the allocation of spaces had not, as yet, been put into effect.

On the legal side, he did not agree entirely with the opinion put forward by the Legal Counsel. The mission, instead of an individual, should be contesting tickets that were improperly issued. He was concerned by the provision that would prevent release of a vehicle before a fine was paid. The towing of diplomatic vehicles should only be done under extreme circumstances, such as when they were blocking a fire hydrant. At the same time, international law did not grant the right to drive. It was a privilege granted by the host country. To deny a mission the right to use all its vehicles would not be in compliance with international law, but the denial of license renewal was within the law.

Returning to practical matters, he said until there was a clearer picture of the details of the programme, the starting date should be delayed. More dialogue, such as yesterday's meeting, would be useful before programme implementation. A short delay was not unwarranted.

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SERGUEI KAREV (Russian Federation) said the opinion of the Legal Counsel was of considerable value. The response of the host country to that legal opinion was now needed. The Committee had to know the host country's position on the legal opinion before it could make any recommendations. He asked for a full clarification from the host country before any action was taken.

ROBERT MOLLER (United States), in responding to a question from the Chairman, said he would wait to hear more opinions from Committee members before speaking.

JORGE SANCHEZ (Spain) said his delegation was grateful to the United Nations Legal Counsel for his opinion on the parking programme. The opinion was correct and there was no need to further comment on it. There were, however, practical aspects that needed to be addressed. First, he hoped the allocation of the parking spaces would be carried out in a genuine way and in an appropriate time-frame. In the areas of some missions, there was a problem with spaces due to fire hydrants. Second, the recourse of appealing fines was a procedure that needed safeguards. Finally, there would be serious repercussions's if the host country failed to comply with the Legal Counsel's opinion. The host country needed to heed the calls for a postponement of the parking programme's implementation.

ELIZABETH WILMSHURST (United Kingdom) said the legal opinion did not call attention to the article in the general Convention on the Privileges and Immunities of the United Nations which pointed out that those privileges were given to members of delegations not for personal gain, but to allow them to carry out their proper functions. There was room for argument with the Legal Counsel on the appropriate articles to be cited from the Convention. In general, however, her Government supported the view of the Legal Counsel.

She expressed sympathy with the request for a temporary delay in implementation of the programme. It was necessary for the host country to clarify certain elements that were within the prerogatives of the country and not the city. The Committee soon had to go beyond responding to the legal opinion and propose practical measures in conjunction with the new programme. The training of ticket agents, the number and availability of parking spaces, the means of appealing tickets and equality of treatment for diplomats -- all were issues to be considered before the programme could be fairly and fully implemented.

WANG CHENGJUN (China) said that his delegation approved of the opinions expressed by the United Nations Legal Counsel. It was important, necessary and timely. It provided legal guidance for the programme of parking diplomatic vehicles. He hoped the opinion would receive positive response and compliance. He said revisions were needed on the mechanism for ticket disputes, the plan for the removal of plates and the procedure for revoking

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registrations, as those proposals did not comply with international law. Thus, New York City should not implement the new programme before the regulations were revised.

CHRISTO CHRISTOV (Bulgaria) said the legal opinion raised important issues that needed to be addressed before the parking program was put into effect. The opinion noted that certain portions of the programme did not appear to be in compliance with international law. That opinion should not be ignored. At the same time, he had reservations on the proposed procedures for diplomats to appeal fines. Those needed to be revised, so that they were in full compliance with international law. He understood public opinion about diplomatic parking in New York City. But, the practical solution to the problem was a two-way street.

JULIO ANTONIO RENDON BARNICA (Honduras) said there were positive elements of the proposed parking programme, but he expressed reservations about a number of areas. The City had the right to govern the general parking of vehicles and the diplomatic community should comply. The inviolability of vehicles with diplomatic plates was at issue, however. Diplomatic missions must have the necessary facilities to carry out their work, according to international agreements. Transport of the mission should not be restricted or confiscated. A delay in the implementation of the programme would be appropriate, in consideration of the number of unresolved concerns.

ROBERT MOLLER (United States) said the City's need to ensure public safety and fair treatment for all concerning parking regulations should not be dismissed as simply "politics". The concerns were serious and had to be addressed in that light. The City had announced that the new programme would enter into effect on 1 April. The Department of State had examined the programme and found it was consistent with the host country's obligations to the diplomatic community. The United States expected the programme to begin as scheduled. The number of parking spaces being made officially available to the diplomatic community was a positive benefit. The members of the community would, therefore, be expected to obey local parking laws.

He said it was important for Member States to respond to the request by the United States Mission for information about availability of spots being provided. All the missions must notify the host country mission whether the parking spots had been provided and whether their location was clear.

Responding to the United Nations Legal Counsel's opinion, CAROLYN WILSON (United States), said she had listened to the comments of other delegations and welcomed the general confirmation of the international legality of the overall programme. Errors would inevitably occur in implementation of a new programme and the missions should use the mechanism which had been set up to review the tickets issued. That special procedure was entirely voluntary, in

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order to address diplomats concerns directly. She acknowledged the validity of complaints about inappropriate ticketing in the past and the new mechanism for appeal in the programme had been added to deal directly with those concerns.

On the legalities of the programme, she said the Headquarters Agreement granted full diplomatic privileges to United Nations diplomats. A similar parking programme had been in effect in Washington, D.C., for quite some time. The parking programme would not impede the missions in the performance of their functions. Many diplomats performed their functions without the use of cars. The non-renewal of vehicle registration did not interfere with diplomatic functions. There were extensive alternate means of transportation in New York, as well as appeal processes for registration matters.

She recognized the legal obligations of the host country, and the parking programme was consistent with those obligations. It did not violate the Vienna Convention with regard to subjecting diplomatic personnel to the legal processes of the host country. The license to drive was a privilege granted by the host country and not an absolute right. The licensing of a motor vehicle was a privilege that the government had the right to regulate. The holder of such a license was required to honour local parking laws.

The opinion of the United Nations Legal Counsel may have misapprehended certain facts, she said, particularly in regard to towing. The towing of a vehicle that was causing a public hazard was acceptable. Such a vehicle would be released without preconditions. If, however, the registration of the vehicle had been terminated, the diplomat would have to incur the costs of removing the vehicle which, without registration, could not be legally driven on city streets.

On the retroactive portions of the programme, she said prior violations concerning hydrant parking would generally have no effect under most circumstances. If there had been more than one hydrant violation between 1 January and prior to 1 April then the time mechanism in the programme would be triggered.

The Federal Government had worked with the City of New York to develop the parking programme to provide proper parking for the diplomatic community. It would be implemented on a comprehensive basis so that the diplomatic community could receive the benefits of the programme, as well as meet its obligations under local parking laws.

Mr. AGATHOCLEOUS (Cyprus), Committee Chairman, asked if the city took away the licenses of ordinary citizens for parking violations.

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Mr. MOLLER (United States) responded that when a United States citizen became a scofflaw, their property was seized and sold. That could not be done to diplomats.

Mr. KAREV (Russian Federation) said the nuances of the United Nations Legal Counsel's opinion was distorted by the translation and should be brought to the attention of the Secretariat. The opinion provided many in-depth answers and its clear legal assessment of the new parking programme should promote a constructive dialogue. He supported the main conclusions of the opinion, particularly with regard to the responsibilities of the host country. Diplomats should comply with the laws of the host country. At the same time, coercive measures should not be used to achieve that purpose. The problem should not be seen as separate from the responsibility of the host country to carry out its functions.

Despite the repeated appeals of the Committee, the problem of diplomatic parking was not being solved by New York City, he said. The problem of discrimination against diplomatic vehicles continued to be acute, as the City was on a "hunt" to ticket diplomatic vehicles. The City mercilessly gave tickets to diplomatic vehicles. Did diplomatic vehicles really hinder traffic and safety in the city? he asked. If the actual number of diplomatic vehicles were determined, it would provide clarity in determining the seriousness of the problem.

The parking programme suggested that diplomats might be considered unwanted guests in New York City, he continued. Was it a hint? Why should diplomatic parking not be treated as firemen and police in New York City were treated? The responsibilities were similar -- diplomats put out fires in a literal and figurative sense.

The working group of the Committee should establish a dialogue with the host country and break the impasse, he said. Implementation of the parking programme needed to be postponed. The host country's plan to implement it on 1 April demonstrated a confrontational approach, which ignored the legal opinion and the diplomatic community. That made the work of the Committee practically futile. In that case, it should be taken to a plenary meeting of the General Assembly, where a resolution could be adopted to postpone implementation.

Mrs. CASTRO DE BARISH (Costa Rica) said it was important to clarify if the provision of two parking spaces in proximity to the mission buildings was sufficient. Was it illegal for a diplomat to park where it was legal for a local citizen to park? she asked. Diplomats needed proper access to their missions in order to do their work. Diplomats from poorer countries would find it a hardship to pay the high costs of parking garages. She asked for further clarification on retroactive elements of the programme. Diplomats

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often had to park in other legal parking spaces. She regretted that a delay in implementing the programme did not appear possible.

YURIY V. BOHAIEVS'KY (Ukraine) said a constructive approach was needed to solve the parking programme. A confrontational approach was not productive. He did not believe that there were no other solutions to the parking problem. The issuance of parking fines was the application of local administrative law to diplomatic personnel and was, therefore, not acceptable under international law. Similarly, the removal of diplomatic license plates was the removal of a signal of conferred diplomatic immunities. The removal of driving privileges would impede the operations of missions, which was also in violation of international agreement. The immunity of diplomatic vehicles was protected by the Vienna Convention. No country could unilaterally remove such immunity.

He said the new programme was intended to invoke sanctions on the diplomatic community and did not address the real issues. The provision of two parking spaces per mission was inadequate. It should not be the responsibility of the mission to report the misuse of assigned diplomatic parking spaces. That was the responsibility of the local authorities. The Committee should consider the issue very carefully before taking action.

ALEG LAPTSENAK (Belarus) said new data provided by the host country gave rise to serious doubts and represented a simplistic approach to a serious problem. The opinion of the United Nations Legal Counsel pointed out serious problems, which needed to be worked out between New York City and the diplomatic community. The implementation of the host country's legal responsibilities should not be to the detriment of the diplomatic community. The international agreements concerning the diplomatic community required the host country to provide any and all conditions necessary for the missions to carry out their functions.

He said the decision on the new parking programme did not serve the needs of the diplomatic community. Rather, it did just the opposite. How did the mayor's office view the fact that parking was almost entirely prohibited or severely limited in areas around many missions? he asked. The new programme virtually deprived the diplomatic community of their parking needs. What would diplomats do in the case of unexpected guests, for example? Why should there be no provision of fines or towing for citizens who parked in diplomatic parking spaces? Such a situation meant that the diplomatic community was being discriminated against. The diplomatic community had always been ready to consider local regulations. But the host country must ensure the proper conditions for the work of the mission. If the Committee and the host country could not work out an acceptable and fair programme, then the problem must be taken up by the General Assembly.

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PAULA ESCARAMEIA, (Portugal) said the enforcement measures were against international law. The programme should be deferred or no progress could be made. The illegal parts of the new programme should be deleted and several things should be clarified by New York City. Courses for ticketing agents should be in place and conditions of safety and security needed to be defined.

PEDRO NUNEZ-MOSQUERA (Cuba) said the legal opinion expressed by the United States on the parking programme was disturbing. Many parts of the programme clearly violated international law and obstructed the work of many missions of the United Nations. The measures for diplomatic parking proposed by New York City had already led to tension between police and diplomats. The diplomatic community should not be held hostage by a Mayor searching for votes.

Today, Cote d'Ivoire said one of its vehicles was towed away because of unpaid fines. He could not accept those measures of force that affected proper functioning of the diplomatic community. How could the diplomatic community be told that operating a car in New York was a privilege? Should its members come to the United Nations on foot? he asked. Two parking spaces was clearly insufficient. The use of force by the host country will mean once again that the committee could not protect the interests of diplomats. Other democratic means should be considered, including appealing to the General Assembly.

JOSE EDUARDO MARTINS FELICIO (Brazil) said the missions did not demand unreasonable parking privileges. It needed proper facilities in New York City for the missions to carry out their functions. No other city had the serious parking problems for its diplomatic community as existed in New York City. Washington, D.C., presented an entirely different set of circumstances. There was no reason to penalize the diplomatic community, which had no wish to show disrespect for local laws and needs.

The entire United Nations community should be briefed by the host country and New York City on the parking situation, he said. A number of issues must be clarified before the parking programme could be implemented. Existing international agreements must be taken into consideration before a programme could be accepted. The programme could not be treated as a fait accompli. The removal of license plates and the enforcement of fines on diplomatic persons was a clear violation of international agreements. If agreement could not be reached in the Committee with the host country on the parking problem, then it should be taken up in the General Assembly.

DICKY FABRIAN (Indonesia) said the United Nations Legal Counsel had laid out the legal basis for the parking programme. It was appropriate for the local community to lay out parking regulations, but the host country could not take certain legal actions, such as removal of license plates and the

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imposition of certain fines, which would violate diplomatic immunity and the host country responsibilities. The Committee should be able to negotiate a solution in a spirit of compromise.

HAMID ALI MOHAMED ELTINAY (Sudan, said his Government would continue to cooperate with the host country in observing its obligations. Regarding the opinion of the Legal Counsel, he said the ticketing and towing of vehicles was a matter of concern under international law and the retroactive ticketing policy must also be called into question. If the programme was applied, it would set a precedent for future violations of diplomatic immunities and privileges.

He said if mission personnel could be punished under parking laws, then the imposition of other local laws could follow, perhaps also in violation of international agreements. Using the Washington, D.C., parking programme as a model merely confused the issue and did not justify the imposition of the new programme in New York City. It should be possible to negotiate a solution to the current situation.

MOHAMAD RAMEEZ YAHYA (Malaysia) said the host country needed to postpone the proposed parking programme. The promise of New York City to provide two parking spaces with appropriate signs had not been fulfilled. Also, the United States Mission needed to begin an orientation session. Furthermore, tickets should be issued in a non-discriminatory manner. He noted that current construction near his mission impeded diplomats from the parking spaces. Members of his mission should not have to pay parking tickets because of that construction. He suggested that the Mayor of New York City be invited to the next meeting.

MUHAMMAD NAJM AKBAR (Pakistan) said there was a serious deadlock in the Committee. The host country upheld its position, regardless of the statement of the United Nations Legal Counsel. A negotiation format must be used to find a solution within the framework of international law and the opinion of the United Nations Legal Counsel. In the interim, implementation of the programme should be delayed. He said his delegation also supported moving the discussions to a higher organ within the United Nations.

KHALIL ABOU-HADID (Syria) said the parking programme must be approached seriously. The host country also needed to take seriously the opinion of the majority of speakers for postponement of the programme. He said the authorities of the host country did not accept the opinion of the Legal Counsel, as the member countries did, even though parts of the parking plan violated international law.

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