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Satow's Diplomatic Practice, 6th Edition edited by Roberts, Sir Ivor [OLD EDITION]

Book VI International Organizations, 21 Legal Framework for Multilateral Diplomacy

Ivor Roberts

From: Satow's Diplomatic Practice (6th Edition)

Edited By: Sir Ivor Roberts KCMG

A newer edition of Satow's Diplomatic Practice is available. Latest edition (7 ed.)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 28 February 2020

Subject(s):
Diplomatic immunity — Diplomatic privileges — Diplomatic relations — Statehood, legitimacy — Armed forces

(p. 287) 21  Legal Framework for Multilateral Diplomacy

21.1  The previous chapters in this book have largely discussed diplomacy as conducted on a bilateral basis between States. The 5th edition referred to the startling changes which in modern times had affected the pace and methods of diplomacy and noted the new phenomenon of diplomacy by conference based on permanent organizations meeting regularly and serviced, not by officials of member governments or of the government of the country in which the conference is held, but by independent international staffs of their own. In the subsequent 30 years modern communications have transformed diplomatic practice making possible monthly meetings and weekly conversations of ministers with their counterparts in other countries, thrice-yearly meetings of EU presidents and prime ministers and regular meetings at ministerial and prime ministerial level in most international organizations. Subsequent chapters will discuss in detail the conduct of diplomacy by means of the United Nations, regional organizations (in particular the EU), and other international institutions. This chapter (p. 288) will provide a brief description and comparison of the various forms of multilateral diplomacy now in use and outline the regimes of privileges and immunities applied to international organizations and to civilian missions and visiting armed forces of a State or international organization on the territory of another State.

The Development of Multilateral Diplomacy

21.2  In the nineteenth century multilateral cooperation in the main was carried on through congresses and conferences such as the Congress of Vienna 1815, and the Congress of Paris 1856 convened to deal with particular situations. The first standing committees to be set up were regional institutions to deal with technical matters such as the Commissions to regulate the Rhine, the Danube, and other rivers. The Universal Postal Union is one of the first two examples of a worldwide permanent organization1 and was set up as a consequence of the Berne Conference on postal matters in 1874. It seemed a highly suitable field in which to establish a permanent body: there was an obvious need for States to cooperate so that letters stamped and posted in one country could be transported and delivered in another, there was plenty to argue about at the technical level, but political differences were not involved in the subject matter, nor in a relatively tranquil age were they introduced into technical discussions among government experts.

21.3  For the discussion of political matters, there was in the nineteenth century no movement towards setting up a permanent organization. Probably the nearest practical approach to the concept of an international organization to maintain peace was the First Hague Conference of 1899 which established the Permanent Court of Arbitration. The tacit assumption that the affairs of Europe and world peace and war were almost synonymous and could be successfully regulated by the Concert of Europe was, however, shattered by the outbreak of war in 1914 and the destruction of the old European order in the following four years of the First World War.

The League of Nations

21.4  On the termination of that war the League of Nations was established in 1919 as an international governmental organization ‘to promote international cooperation and to achieve international peace and security’. The League sought to achieve these aims by a Covenant requiring Member States to accept an obligation not to (p. 289) resort to war (spelt out in the Kellogg-Briand Pact of 1928), ‘by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples one with another’. The failure of the United States of America to join as a member, followed by economic recession and the growth of dictatorships whose aggression the League was unable to stop through sanctions, led to the League itself gradually being perceived as impotent and irrelevant.

The United Nations

21.5  The Second World War followed from 1939 to 1945 leading to the establishment of the United Nations in 1947; whilst the maintenance of peace was still a goal this second international organization open to all States was different in its wider aims and in the means to be adopted; the peoples which make up States were to be enrolled and the organization itself was to be empowered to take effective measures. The first difference is found in the UN Charter which was prefaced by a declaration in the following terms:

We the peoples of the United Nations

determined to save succeeding generations form the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of law can be maintained, and

to promote social progress and better standards of life in larger freedom;

have resolved to combine our efforts to accomplish these aims.

The second difference was in Article I of the Charter which stated that the first of the purposes of the organization was to maintain peace and security and ‘to take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression and other breaches of the peace …’

The differing forms of multilateral diplomacy

21.6  Turning to the different forms of diplomacy, there is today considerable diversification of legal structures. The choice of means depends on many factors; (p. 290) whether the direct involvement of States is required or a call for action by civil society will be sufficient; in this latter case, whether by coordination of national bodies, by the action of an existing non-governmental body, or the creation of a new one. Where States are to be involved, the intensity of the cooperation required is to be considered and whether it may be best achieved by a programme in which private participants such as multinational corporations are also entitled to join; if confined to States, whether sufficient intensity of participation will be achieved by an association or whether an independent international organization with strong delegated powers to put its decisions into effect is required. A carefully drafted international agreement, or a series of bilateral agreements, will be required which must define the structure and purposes of the association or organization and any special privileges and immunities to be conferred.2

Associations and international organizations

21.7  States may form themselves into an international association without creating an independent legal person, though if the objectives which they further are found useful they usually progress to full legal personality as with the Association of Southeast Asian Nations (ASEAN) which under its Charter, in force 16 December 2008, was granted by its Member States legal personality; the Commonwealth of Independent States (CIS), however, remains as an international association (see Chapter 28 below). Alternatively, they may establish a separate international organization. Such an international organization is defined as an organization established by treaty, governed by international law, possessing its own legal personality, and with its membership largely composed of States.3 Where an organization is given international legal personality it is entitled to conclude treaties and international agreements in its own right and to bring international claims in its own name or on behalf of its officers and servants.4 It may also be held responsible for damage or injury resulting from its activities, though whether this liability excludes the concurrent liability of its Member States is a complex and controversial question. Where an international organization is given legal capacity in the law of a Member State, it will not normally be (p. 291) possible to bring legal proceedings in the courts of that State against Members in respect of debts or obligations of the international organization. Thus when in 1986 the International Tin Council collapsed owing one thousand million pounds to bankers, brokers, and traders, these creditors were unable to sue the Member States in United Kingdom courts to recover their debts, since the Council had by national legislation giving effect to the relevant international agreement been accorded ‘the legal capacities of a body corporate’.5 Where there is no international organization endowed with a separate legal personality, the Member States may be sued even if the organization has acted as their agent. The European Union has been accorded express treaty-making capacity and the Council has concluded many international agreements in the name of the Union, but has not—as yet—been accorded full international legal personality and its Member States have in practice continued to accept responsibility for claims resulting from military activities carried out by the Union.6

21.8  An account of many of these international organizations will be found in the immediately following chapters, and the United Nations and the European Union are covered in considerable detail. International organizations with restricted membership established primarily on the basis of geographical criteria, include the European Union (EU), the African Union (AU), and the Organization of American States (OAS). Other organizations may have competence in particular fields—the World Trade Organization (WTO) for example, is mainly responsible for the promotion of international trade and economic development, while the North Atlantic Treaty Organization (NATO) is primarily intended for the coordination of the armed forces of its members as a guarantee of collective security against armed attack on their territories. The Organization for Security and Co-operation in Europe (OSCE) which evolved from East-West cooperation beginning during the Cold War, is now the primary instrument for early warning, conflict prevention, and crisis management throughout Europe.

21.9  The restriction of the membership of these international organizations primarily to States (with a few open also to regional economic integration organizations—see Chapter 27, paragraph 27.19) distinguishes them from looser forms of international association. The International Committee of the Red Cross (ICRC)—founded in 1863—is composed of the national Red Cross and Red Crescent Societies and brings together in annual conference their representatives with those drawn from States Parties to the Geneva Conventions on the laws (p. 292) applicable to armed conflict;7 non-governmental organizations such as Amnesty and Greenpeace (see Chapter 20 below) are established as private law bodies though they operate in more than one country. International public corporations or joint interstate enterprises are entities jointly created by a group of States, usually for the performance of commercial functions. Examples include the European Company for the Financing of Railway Rolling Stock (EUROFIMA) which is set up by treaty but incorporated under Swiss law; Air Afrique, an airline established by West African States; and Scandinavian Air Services (SAS), an airline established by Norway, Denmark, and Sweden.

Privileges and immunities

21.10  One factor which will be relevant in determining the appropriate form for international cooperation on a particular matter is whether the body to be established and its officers and servants are thought to require privileges or immunities. The protection, privileges, and immunities accorded to a diplomatic mission, its head, and members have to some extent provided a precedent and justification for the development of protection for those engaged in multilateral forms of cooperation—military attachés and ad hoc observers or inspectors of military installations or of compliance with international environmental standards are frequently and quite properly appointed as members of a sending State’s mission and entitled on that basis to diplomatic immunities and privileges. The law of state immunity also provides a general immunity for the defence authorities as an organ of the State, and for its officers and military advisers as representatives of the State. But more specific provision has been found necessary in order to deal on a satisfactory basis with international organizations and with visiting forces.8

21.11  International law regarding the privileges and immunities of international organizations is an entirely modern development. Although the Covenant of the League of Nations did make provision for representatives of members of the League and officials to enjoy diplomatic privileges and immunities when engaged on business of the League, and accorded inviolability to the buildings of the League and of representatives attending meetings,9 there were no multilateral agreements defining in detail the privileges and immunities to be accorded to international organizations or persons connected with them. Outside Switzerland, (p. 293) which housed most of the earliest established international organizations, and the Netherlands, where the Permanent Court of International Justice had its seat at The Hague, there was very little state practice.

21.12  After 1945 the position changed swiftly and dramatically. International organizations, both worldwide and regional, multiplied rapidly. But little attempt was made in the early years after the war to formulate privileges and immunities for them on a general basis. It was left to the negotiators of the international agreements by which the individual organizations were established to make provision, either in general or specific terms, for appropriate privileges and immunities to be accorded by States Members to the organization itself, its premises, property, archives, and communications, and to the different classes of persons connected with the organization—representatives of Member States, staff members, and experts.

21.13  The most important agreement drawn up at this time was for the United Nations itself. The Charter of the United Nations made only very general provision for privileges and immunities. Article 104 provided that ‘[t]he Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.’ Article 105 required that the organization should enjoy ‘such privileges and immunities as are necessary for the fulfilment of its purposes’ and that representatives of members and officials of the organization should enjoy ‘such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization’. As envisaged in Article 105, a detailed international agreement for the application of these general provisions was then negotiated. The General Convention on the Privileges and Immunities of the United Nations10 was adopted by the General Assembly of the United Nations on 13 February 1946 and opened for accession by UN members. It has received overwhelming support from members although the United States, the host State to the UN, did not become a party until 1970 and instead regulated its relations with the United Nations on the basis of a Host State Agreement with the organization. Both Agreements now apply on a complementary basis.

21.14  The General Convention on the Privileges and Immunities of the United Nations confers on the United Nations legal personality, in particular the capacity to contract, to acquire and dispose of immovable and movable property, and to institute legal proceedings. It accords full immunity from jurisdiction and every form of legal process to the UN, its property and assets, and inviolability to its premises and property, its archives and documents wherever located. The UN is (p. 294) given wide-ranging exemptions from national exchange control and other financial regulations and exemption from direct taxes, customs duties, and prohibitions and restrictions on import and export of its publications. An exception is made, as regards tax exemption, of taxes ‘which are, in fact, no more than charges for public utility services’. Where the United Nations makes important purchases, for official use, of property on which taxes have been paid or are payable, Member States in which the purchases are made are, whenever possible, to make administrative arrangements for remission or refund of the tax. The United Nations is accorded diplomatic treatment for its communications (including such matters as rates and priorities for mail, telephone calls, and so on) and it may use codes, couriers, and diplomatic bags in the same way as a diplomatic mission. No censorship may be applied to the official correspondence and other official communications of the United Nations.

21.15  Representatives of members at the United Nations (a term which includes delegates, deputy delegates, advisers, technical experts, and secretaries of delegations) are accorded a scale of privileges and immunities which falls somewhat short of what is accorded to a diplomatic agent under the Vienna Convention on Diplomatic Relations. While exercising their functions or journeying to or from the place of meeting, they are given immunity from arrest and detention and from seizure of their personal baggage. They have an unlimited immunity from jurisdiction in respect of words spoken or written and all acts done by them in their capacity as representatives, but they do not have the immunity from jurisdiction in regard to their personal acts which is enjoyed by diplomatic agents. They are specifically accorded inviolability for all papers and documents, the right to use codes, couriers, and sealed bags, exemption for themselves and their spouses from immigration restrictions, aliens’ registration and national service obligations, facilities in respect of currency or exchange restrictions, diplomatic treatment for their personal baggage (so that it is exempt from inspection except where there are serious grounds for suspecting abuse of the privilege). They are not given a general exemption from taxes or customs duties, but it is provided that where taxes are levied on a basis of residence, periods during which representatives are present in a State for the discharge of their duties are not to be considered as periods of residence. In addition they are accorded such other privileges, immunities, and facilities not inconsistent with the foregoing as diplomatic envoys enjoy. This means that where a privilege or immunity has been accorded in a limited form by the Convention, no more need be accorded to the representative, but privileges and immunities not mentioned at all, but which are given to diplomatic agents, should also be given to the representative. States are not obliged to accord any privileges or immunities to their own national representatives. The protection from interception of their (p. 295) communications enjoyed both by the UN and by representatives to the UN in New York meant that there was widespread anger when it was revealed through a leak in March 2003 that the US National Security Agency had ordered intensification of surveillance of telephone conversations and emails of UN delegates whose votes would be crucial in the attempt (later abandoned) to secure a second Security Council resolution explicitly authorizing the use of force against Iraq. The allegation of bugging was supported by the delegations of Mexico and Chile and by the admission of a former UK cabinet minister in a radio interview that UK authorities had also been implicated.11

21.16  Officials of the United Nations, in general, are accorded a narrow range of privileges and immunities which can easily be justified as essential to enable them to perform their job independently of any control or interference by any Member State. They are immune from civil and criminal jurisdiction in respect of words spoken or written and all acts performed by them in their official capacity. The salaries and emoluments paid to them by the United Nations are exempt from tax. They are immune from national service obligations, immigration restrictions and aliens’ registration (together with their families), and from exchange control regulations. In time of international crisis they can claim the same right to be repatriated as a diplomatic agent. When they first take up their post with the United Nations, they have the right to bring their furniture and effects duty free into the country to which they are posted, but subsequently they have no further exemption from customs duty. All Member States allow a period of grace for the import of household effects after the arrival of the official in person, but the length of the period varies between different States within a range of three months to two years. Officials have no personal inviolability, or inviolability of residence or property, immunity in regard to their personal acts, or any personal privileges other than those mentioned above, which are needed to ensure that they are personally at the disposal of the United Nations.

21.17  The only officials of the United Nations who under the General Convention are accorded privileges and immunities on the diplomatic scale are the secretary-general himself and all assistant secretaries-general. These ‘High Officers’ are given all the privileges and immunities accorded under international law to an ambassador under the Vienna Convention on Diplomatic Relations. The State of which a High Officer of the United Nations is a national or permanent resident (p. 296) need therefore only accord him the more limited immunities which it is obliged under Article 38 of the Vienna Convention to accord to diplomatic agents under the same circumstances. The Convention imposes serious obligations on the United Nations itself to balance the immunities which it accords. It stresses that privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves. The secretary-general has the duty to waive the immunity of an official where in his opinion immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. No comparable duty is imposed on States by international law or by either of the Vienna Conventions in regard to waiver of any immunity enjoyed by their diplomats or consuls, but a duty is laid on them by the General Convention to waive the immunity of their representative where this can be done without prejudice to the purpose for which the immunity is accorded. The United Nations is obliged to cooperate with members to facilitate the administration of justice and the observance of police regulations, and to prevent any abuse of privileges or immunities.

21.18  Experts on missions for the United Nations are treated separately from officials. The distinction between an official and an expert is that while an official has a contract of employment with an international organization and is invariably subject to its staff rules or regulations, the expert is engaged for a specific task, his contract relates only to the performance of and remuneration for that task and he is not subject to the staff rules of the organization. He is not the servant of the organization but is in the position of an independent contractor. The period of service is not the determining factor, for an organization may recruit officials as employees on a short-term basis (for example additional secretaries or interpreters for a conference) or on a part-time basis, and an expert may be engaged full-time on a specific task for an international organization for a prolonged period. Nor is the type of work a guide to status as an expert or official. The tasks for which experts may be engaged are infinitely varied. More typical assignments include serving independently on a committee of experts, fact-finding and reporting on some area of concern, and advising on some major new purchase or enterprise which the organization is contemplating. Experts under the United Nations General Convention are accorded, during the period of their missions and on journeys in connection with their missions, immunity from personal arrest or detention and from seizure of their personal baggage, inviolability for their papers and documents, the right to communicate with the United Nations in code, by courier, or by bag, the facilities in respect of exchange control and currency restrictions which the State concerned accords to representatives of foreign governments on temporary official missions, and diplomatic treatment for their personal baggage. In respect of words spoken or written and acts done (p. 297) by them in the course of their mission, experts are accorded immunity from every form of legal process for an indefinite period. The Convention imposes on the secretary-general the same duty as regards the waiver of the immunity of an expert as is imposed in regard to the immunity of an official.

21.19  The immunity from legal process enjoyed by an expert and the procedure for determining whether conduct is ‘in respect of words spoken or written … in the course of their mission’ were reviewed in 1999 by the International Court of Justice in the Cumaraswamy case.12 Cumaraswamy was a Malaysian lawyer appointed as Special Rapporteur on the Independence of Judges and Lawyers to the UN Commission of Human Rights and as such a UN expert on mission. While carrying out investigations in his home country of Malaysia he drew attention in a press interview to complaints that well-placed persons were able to manipulate the Malaysian justice system and commented on an ongoing case as a possible example of ‘choosing a judge’. Following this interview defamation proceedings were brought against him in Malaysia. The UN secretary-general considered that the interview had been given in the course of Cumaraswamy’s mission and asked the Malaysian government to advise the courts of his immunity, but the government declined to do so and instead confined itself to drawing to the attention of the Malaysian courts the legal basis for any immunity enjoyed by the defendant. The courts took the view that the determination by the UN secretary-general was an opinion which did not bind them and they also refused to rule on the question of immunity at the outset, joining it to the merits. The secretary-general then asked the Economic and Social Committee of the UN (ECOSOC) to request an advisory opinion from the International Court on the construction of the General Convention on the Privileges and Immunities of the UN. The Court did not uphold the claim by the secretary-general that his opinion on whether conduct was in the performance of a mission was conclusive, but they said:

When national courts are seized of a case in which immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning the immunity. That finding, and its documentary expression, create a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts.

The Court also held that Malaysia was in breach of the General Convention by not ruling on immunity at the start of proceedings, so nullifying the essence of immunity.

(p. 298) 21.20  The scale of privileges and immunities set out in the General Convention on the Privileges and Immunities of the United Nations was used as a model for other international organizations having worldwide membership and responsibilities. For the most part the United Nations scale was treated as a ceiling, and minor reductions in privileges and immunities were negotiated in the case of other organizations. It was accepted that few other international organizations had to carry out tasks of such political sensitivity or physical danger as the United Nations itself and that on a basis of functional need they could not therefore lay claim to the same level of immunity. The most important of the international agreements which followed the United Nations pattern was the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations,13 which was adopted by the General Assembly of the United Nations on 21 November 1947. The Specialized Agencies Convention set out a detailed scale of privileges and immunities for the organization and for various categories of persons connected with it—representatives of Member States and United Nations officials—which was closely based on the United Nations scale and was described as ‘the standard clauses’. The standard clauses made no provision for experts, and they provided that only the executive head of each Specialized Agency, including any official acting on his behalf during his absence from duty, should be accorded ‘high officer treatment’—that is the additional privileges and immunities which are given to diplomatic agents under international law. Each Specialized Agency can, in accordance with its own constitutional procedure, make modifications as regards itself in the standard clauses by the deposit of an Annex containing such modifications at the time when the Convention becomes applicable to it, and all have now done so. Each Annex may be modified by the relevant Specialized Agency at a later date. Several Specialized Agencies have for example made provision, on the lines of the United Nations Convention, in relation to experts. The International Labour Organization has made special provision to treat as ‘representatives’ the employers’ and workers’ members and deputy members of the governing body of the organization—who do not represent member governments—and have also provided that any Deputy Director-General of the International Labour Office and any Assistant Director-General of the International Labour Office shall be accorded ‘high officer treatment’. By 1977 the Specialized Agencies Convention applied to 16 Specialized Agencies of the United Nations,14 with particular modifications for each one which are set out in the various Annexes.

(p. 299) 21.21  The United Nations scale of privileges and immunities has also been generally followed in the case of a number of important regional international organizations. Examples which may be quoted (although in each case the relevant international agreement must be consulted to ascertain the differences from the United Nations precedent) include the North Atlantic Treaty Organization,15 the Western European Union,16 the Council of Europe,17 and the Customs Cooperation Council.18

Organizations with more limited privileges and immunities

21.22  The international financial organizations followed a different pattern. In the Agreements which established the International Monetary Fund19 and the International Bank for Reconstruction and Development20 (the Bretton Woods Agreements of 1944) it was recognized that if the Bank (usually known as the World Bank) was to be able to raise loans and perform certain of the other functions envisaged for it on international markets, it could not be accorded a general immunity from suit. Its immunity from suit was therefore limited to actions brought by Member States or by persons acting for or deriving claims from Member States. Ordinary commercial lenders could bring actions in the ordinary way to recover their loans, and this made the Bank a credible borrower in the market. The scale of privileges and immunities both for the Fund and for the Bank was in other ways notably more restrictive than the UN scale. For example no privileges or immunities were accorded to representatives of Member States, or to experts, nor was ‘high officer’ treatment accorded even to the executive head (p. 300) of the Bank. On the other hand the Bank was given certain tax privileges—such as immunity for the collection or payment of any tax or duty and certain tax exemptions on any obligation or security issued by the Bank—which are peculiar to international agreements establishing financial organizations. The precedents of the World Bank and the International Monetary Fund were followed in the case of the International Finance Corporation,21 the International Development Association,22 the Asian Development Bank,23 and the Caribbean Development Bank24 among others. The first four of these organizations are covered by the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations. It must be emphasized that although the Convention on the Privileges and Immunities of the United Nations and the Convention on the Privileges and Immunities of the Specialized Agencies are very widely ratified, participation is not universal and the treatment set out in the Conventions will not be legally required from a State which is not a party.

21.23  Some international organizations were established with a minimal scale of privileges and immunities—usually on the basis that their functions were technical or to some extent commercial and not politically sensitive. They might be accorded only the legal personality which was essential if they were to hold premises and property and contract in the host State. The agreements under which the commodity organizations (such as the International Wheat Council, the International Sugar Organization, the International Coffee Organization, and the International Tin Council) were established contained provisions which accorded only the most limited privileges, namely tax exemption for each organization and tax exemption on emoluments for staff members. One regional organization, EUROCONTROL, was accorded very limited fiscal privileges in the expectation that financial equilibrium between Member States would be achieved by spreading the projected air traffic control installations evenly among their territories; but when this plan did not work out, there were complaints from some Member States that their contributions to EUROCONTROL’s budget were finding their way into the coffers of other Member States where the organization was operating and was being heavily taxed. It became necessary to negotiate an amending Protocol providing for tax relief for EUROCONTROL on a wider basis.25

(p. 301) 21.24  This example illustrates one of the most important justifications for the granting of privileges to international organizations and their staffs: the need for financial equality as between the host State to the organization and the other members. The host State should not be entitled to make, through the presence of the organization on its territory, a direct profit at the expense of other contributors to the budget of the organization. Of course the host State makes some indirect profit because representatives of other governments come there for meetings, bringing and spending foreign exchange; and there are other intangible benefits such as political prestige accruing to capitals which can attract a number of international organizations to set up house there. But it is generally accepted as wrong in principle that the host State should tax the salaries paid to officials out of the budget and keep the proceeds for itself, or that it should subject the organization to direct taxation or even to indirect tax in respect of its major purchases. (Individual officers do not enjoy tax-free salaries because most international organizations levy an internal tax on the salaries for the benefit of the organization itself.) The need for equality between Member States does not apply in the case of the diplomat’s tax exemption. The diplomat is not generally exempt from such indirect taxes as value-added tax or purchase tax on the goods he buys, because this is administratively very difficult to arrange and the reciprocal nature of diplomatic relations means that no one government benefits overall at the expense of others. But in the case of international organizations there is no real reciprocity. If the host State could levy indirect taxes on an organization in its territory, or customs duty on its imports, it could profit at the expense of the other members without suffering any reciprocal loss. Of all the privileges accorded to international organizations, therefore, tax exemption is the most readily conceded.

21.25  Immunities for an international organization and its staff are harder to justify. In the case of a highly political organization such as the United Nations it is easy to see that its officials must be free from pressure and from harassment in the performance of their delicate and important tasks in the territory of members, just as it is essential for diplomats to be free and independent of pressures from the authorities of the receiving State. But international organizations have tended to multiply—though probably less so in recent years—and to assume functions such as the financing of international telecommunications systems,26 or the development of rocket launchers,27 or of better weather forecasting,28 which are (p. 302) far removed from the functions of traditional diplomacy and may sometimes have a commercial dimension. The host State does not derive any reciprocal advantage in granting immunities to international organizations and persons connected with them, such as it obtains for its own representatives abroad when it accords diplomatic and consular immunities to foreign diplomatic agents. If persons enjoying immunity by virtue of their connection with an international organization behave unacceptably or cause a security problem in the host State, there is no swift and reliable method analogous to declaring a diplomat persona non grata, whereby that State can ensure that the offenders are immediately removed from its territory. This has been particularly sensitive in the United States and it was largely for this reason that the US—as already pointed out—delayed becoming a party to the General Convention on the Privileges and Immunities of the United Nations. There is also the problem that while a diplomat who claims immunity may at least in theory be sued in his home State or at the end of his diplomatic posting, this is not practicable with officers of an international organization who may well spend their entire career in the service of the organization. For these reasons it was seen as necessary, particularly in States where public and parliamentary opinion is sensitive to any apparently excessive grant of immunity, to make quite clear that immunities were not being granted beyond those which were necessary to enable the organizations concerned to function effectively, and that privileges and immunities would not be granted so as to enable any international organization to carry on a commercial activity from a position of advantage over its competitors.

21.26  The European States which negotiated the Protocol on Privileges and Immunities of the European Space Research Organization (ESRO) in 196329 and the Protocol on the Privileges and Immunities of the European Launcher Development Organization (ELDO) in 196430 were conscious that these were regional organizations of a technical and scientific character for which privileges and immunities on the United Nations scale would not have been appropriate. In the case of the latter body it was then envisaged that if a successful rocket launcher was developed, it should be constructed and sold on a commercial basis, and it was clearly inappropriate that in that event Member States should accord tax relief. These two international agreements therefore contained restrictive features which were at the time novel. Each organization was obliged to include in all its written contracts (other than staff contracts) an arbitration clause which either party to the contract might invoke. Unless the organization waived its immunity, (p. 303) Member States might submit to an international arbitration tribunal any dispute arising out of damage caused by the organization, or arising from a claim against a person connected with the organization who is entitled to immunity in regard to the claim. If an action was brought in the courts to enforce an arbitration award made under these provisions, the organization had no immunity from jurisdiction and execution. Other important exceptions to the immunity from jurisdiction and execution of the organization were where a civil action was brought against the organization by a third party for damage arising from an accident caused by a motor vehicle belonging to the organization or operated on its behalf, or there were criminal proceedings for a motor traffic offence involving a vehicle which belongs to the organization or is operated on its behalf. So although ESRO and ELDO could not be obliged to litigate disputes in the courts in the ordinary way, most people with a claim against them could be sure of obtaining justice, since they could be required to submit to arbitration and the resulting award was enforceable. Motor traffic offences and claims form an overwhelming proportion of the proceedings in respect of which immunity is raised, and there is considerable public reluctance to widen the classes of person who are thought of as being in some sense ‘above the motoring laws’. ESRO and ELDO were accorded the standard exemptions from taxation and customs duties, but stress was laid on such exemptions relating only to matters which are ‘strictly necessary’ for the exercise of their official activities. These official activities are defined precisely, and it was made clear in the case of ELDO that they included only ‘administrative activities and the design, development and construction of prototype space vehicle launchers’.

21.27  The immunity from jurisdiction of both officers of the organization and experts was subject to an exception in regard to motor traffic offences and claims resulting from motoring accidents, parallel to the above exceptions regarding the organizations themselves. The tax exemption given to the executive head and the staff members of each organization in regard to their salaries and emoluments was made conditional on their paying tax to the organization itself, the tax collected to be used for the benefit of the organization. The practical advantages of this ‘internal tax’ arrangement are that:

  1. 1. Equality is created between the different members of an international secretariat (which would not occur if the staff members were paying tax at varying rates to their home government);

  2. 2. The host State is not making a tax profit as it would do if it could tax staff members on the basis of their residence in its territory;

  3. 3. The staff members do not enjoy a tax-free status which might be resented by public opinion, particularly in the host State.

(p. 304) The general approach of these two international agreements was reflected in Article 21 of the ESRO Protocol, which provided:

1. The privileges and immunities provided for in the present Protocol are not designed to give the Director-General, staff members and experts of the Organisation personal advantage. They are provided solely to ensure, in all circumstances, the unimpeded functioning of the Organisation and the complete independence of the persons to whom they are accorded.

Study of Underlying Principles

21.28  In 1965 the United Kingdom government expressed to other governments in the Council of Europe the considered view that in the negotiation of agreements concerning privileges and immunities for international organizations too much regard was being paid to precedent and to equality of status with other organizations, and that States which wished to attract international organizations to establish themselves in their territory had on occasion used privileges and immunities as a bargaining counter. Insufficient regard was being paid to the basic principle that ‘no privileges and immunities which are not really necessary should be asked for’.31 As a result of this initiative a careful study of the whole question of the principles which should govern the grant of privileges and immunities to various categories of international organization and to persons connected with them was made by a sub-committee of the Council of Europe. The report which resulted from this comparative study and discussion of future policy was endorsed by the Committee of Ministers of the Council of Europe, who recommended ‘that the governments of member states should be guided by the considerations set out in the report in any future negotiations concerning privileges and immunities of international organizations’.32 The governments of the Council of Europe for some time thereafter followed a reasonably coordinated policy in the negotiation of agreements regarding new international organizations, although it could not be said that questions of precedent and status did not sometimes continue to surface. It is unfortunate that the negotiators of agreements for new international organizations usually include those individuals who stand to benefit most from generous treatment in matters of status as they are hoping to work for or be delegates to the organization. Nor has it ever proved feasible to re-negotiate any existing international agreement on privileges and immunities in a downward direction.

(p. 305) 21.29  A strong incentive to a more disciplined and restrictive approach to the negotiation of new agreements conferring immunities has also emerged from a number of cases brought before the European Court of Human Rights in which it was argued that the human right of access to justice overrode—particularly in cases where torture was alleged—traditional immunities enjoyed by States. The European Court of Human Rights has upheld these immunities, stating ‘that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty’. They stressed however that it would always be necessary to establish that the barring of a civil right is not disproportionate to the legitimate aim which state immunity pursues: and that there must be proportionality between limitations on access to justice and the aim pursued.33

21.30  A method used to justify immunities for international organization in the face of charges of denial of access to justice is to provide in the constituent instrument an alternative method for settlement of disputes. For example, the 1947 Convention on the Privileges and Immunities of Specialized Agencies of United Nations confers immunity except where there is express waiver by the organization,34 and requires each Specialized Agency to make provision ‘for appropriate methods of settlement of: (a) disputes arising out of contracts or other disputes of a private character to which the specialized agency is a party; (b) disputes involving any official of a specialized agency who by reason of his official position enjoys immunity, if immunity has not been waived’. Such alternative procedures provide a means of settlement of claims without compromising the independence of the organization or exposing it to interference from the receiving State. Nonetheless the total exclusion of national courts’ jurisdiction has been adversely contrasted with the restricted immunity now enjoyed by States where national courts exercise jurisdiction over disputes relating to commercial or private law acts; and employees in reliance on the right of access to court in the European Convention on Human Rights have successfully challenged in French and Belgian courts particular alternative dispute settlement proceedings by reference to their method of selection of judges and absence of a right of appeal.35

(p. 306) Headquarters Agreements

21.31  The status of an international organization and of persons connected with it may be regulated by a bilateral international agreement between the organization and its host State. This headquarters agreement, as it is called, may be

  1. 1. in addition to the multilateral agreement which specifies the privileges and immunities to be accorded by all Member States;

  2. 2. in substitution for the multilateral agreement if the host State is not a party to that agreement; or

  3. 3. required because the multilateral agreement may contain no detailed provisions in regard to privileges and immunities.

21.32  An example of (1) (a headquarters agreement which supplements and makes only minor adjustments to the relevant multilateral agreement) is the Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the European Centre for Medium-Range Weather Forecasts.36 The purpose of the Headquarters Agreement in this case was to make the necessary provision regarding the premises which the United Kingdom government placed at the disposal of the Centre and also to spell out in terms of United Kingdom law and practice the privileges and immunities to be accorded to the Centre. On the other hand, in the case of the Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the Intergovernmental Maritime Consultative Organization (now the International Maritime Organization) regarding the Headquarters of the Organization (1968),37 certain additional financial privileges were accorded to the senior officers of the organization which were not required by the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations. This Agreement also set out in detail the way in which the broad terms of the Specialized Agencies Convention were interpreted in United Kingdom law, practice, and procedure. This was the first headquarters agreement to be concluded between the United Kingdom and an international organization, and it required primary legislation (the International Organizations Act 1968) before it could be brought into force.

21.33  Examples of (2) (headquarters agreement required because the host State is not party to a multilateral agreement on the status of the organization) include the 1947 Agreement between the United States of America and the United Nations (p. 307) regarding the Headquarters of the United Nations38 and the Headquarters Agreement between Switzerland and the United Nations.39 Until 2002, Switzerland was not a member of the United Nations.

21.34  Headquarters agreements in category (3) (where the multilateral agreement contains no detail on privileges and immunities) usually relate to international organizations which do not need privileges and immunities except in the host State. In such a case the multilateral agreement which establishes the organization may make no provision in regard to privileges and immunities; may make provision only in general terms (for example ‘shall be accorded in the territory of Member States such privileges and immunities as it may require’); or may expressly provide that the organization and the host State shall conclude a headquarters agreement regarding privileges and immunities to be approved by the council or other executive body of the organization. The last of these formulations, which has become the most common, is the most satisfactory, since it emphasizes the interest of the generality of members in the level of privileges and immunities to be accorded and prevents the possibility of the secretariat of the organization negotiating an unacceptably high level of privileges and immunities with one Member State and using this as a precedent in competitive negotiations with other members. The United Kingdom has concluded headquarters agreements with all of the commodity organizations which have their headquarters in London.40 In each case the relevant multilateral agreement called for the negotiation of a headquarters agreement between the host State and the organization (there being little general need for privileges and immunities in other Member States, except as regards taxation of the organization) and the agreement, which followed generally the precedents of ESRO and ELDO described above, was approved by the Council of each organization before signature. Where the organization does not have a widespread need for privileges and immunities, this scheme is an economical way of providing what is necessary. The negotiation of multilateral agreements on privileges and (p. 308) immunities consumes a great deal of expert time and effort, and where an organization operates almost entirely within one Member State, a simple headquarters agreement between the host State and the organization will be sufficient.41

The 1975 Vienna Convention on the Representation of States

21.35  The sequence of international conferences designed to codify the various areas of diplomatic law which began with the Vienna Convention on Diplomatic Relations of 1961 and continued with the Vienna Convention on Consular Relations of 1963 and the New York Convention on Special Missions of 1969, led to the convening of a conference at Vienna in 1975 to consider draft Articles prepared by the International Law Commission on representatives of States to international organizations. This Conference adopted the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character,42 a Convention which has never entered into force. Part II of the Convention accords to permanent missions to international organizations of a universal character broadly the privileges and immunities of a diplomatic mission, and goes further in requiring the host State, in case of an attack on the premises of the mission, to ‘take all appropriate steps to prosecute and punish persons who have committed the attack’. The head of the permanent mission, staff, and families are given the privileges and immunities which they would enjoy if they occupied a corresponding position in a diplomatic mission. Although some headquarters agreements give more extensive privileges and immunities to permanent missions to the organization than are required by the relevant multilateral agreement, most fall well short of the full range of diplomatic privileges and immunities.

21.36  Part III of the 1975 Vienna Convention deals with delegations to organs of organizations and to conferences and again, with some exceptions, such delegations are given privileges and immunities on the full diplomatic scale. The general level of privilege and immunity goes far beyond what is accorded under the General Convention on the Privileges and Immunities of the United Nations, or under any bilateral headquarters agreement, to delegations to organs of an international organization or to conferences convened by it. The host State has no power to declare any person entitled under Part III to (p. 309) immunity persona non grata, or to obtain his removal, if the sending State proves unhelpful. Part IV of the Vienna Convention provides that observer delegations are entitled to the same level of privileges and immunities as the delegations of members which are covered in Part III.

21.37  In the drafting of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, little regard was paid to the interests of the traditional host States—the United States, Canada, and the States of Western Europe. Although all States are potential host States to international organizations and even more so to conferences convened by such organizations, the majority of States adopted the position that they were primarily sending States, and a polarization of positions occurred in which the majority supported extension of the privileges and immunities normally given to representatives to international organizations, while the traditional host States argued that their legitimate interests, and the traditional principle that no privileges and immunities should be accorded unless they were necessary, were both being ignored. When the Convention was adopted, the United Kingdom, Switzerland, Austria, Canada, France, and the United States abstained and it is unlikely that it will obtain sufficient participation to enter into force or have any impact on state practice.

Visiting Armed Forces

21.38  One particular situation, the deployment of armed forces on territory other than their home State, has resulted in the adoption of special international arrangements quite separate from those which governed international organizations engaged for the most part in peaceful activities. In both the First and Second World Wars it became necessary to draw up agreements for the allocation of jurisdiction and settlement of disputes between the visiting armed forces of the sending State and the receiving State which had consented to their presence on its territory. Originally most of these agreements (termed status of forces agreements, or SOFAs) were bilateral agreements between sending and receiving States, and there are still many of those such as the agreements concluded by Iraq following the restoration of its sovereignty in 2004 with US and other coalition forces present in Iraq under UN mandate. But in the context of multilateral deployments, often within the framework of an international organization, multilateral agreements have come to dominate the field. Modern practice has led to the development of three separate models:

  1. (1)  where the armed forces are present in peacetime in another State’s territory (NATO SOFA);

  2. (p. 310) (2)  where an international organization mandates a force—military, civilian, or combined—provided by Member States, to carry out a mission on a particular State’s territory (UN military observer missions and peacekeeping operations); and

  3. (3)  model SOFAs and status of mission agreements (SOMAs) recently developed by the European Union first to define the legal status of Member States’ forces deployed within the territory of EU Member States and secondly for such Member States’ forces deployed in third States for humanitarian and rescue tasks, crisis management and peacekeeping (‘the Petersberg tasks’—see paragraph 27.25 below).

The NATO SOFA

21.39  The first model is designed for the situation which obtained throughout the Cold War where the armed forces of one State were stationed on a long-term basis in peacetime with the consent of another friendly State in its territory for the purpose of their collective security. This was reflected in the North Atlantic Treaty referred to above which set up a Supreme Allied Headquarters in Europe (SHAPE) with a Supreme Allied Commander Europe (SACEUR). The overlap of jurisdictions and the potential conflict between the local interests of the receiving State, particularly regarding its exercise of jurisdiction over all activity within its territory in peacetime, and of the functional need of the visiting State to have exclusive command of its force and its internal administration, called for careful balance. In response the NATO Status of Forces Agreement (NATO SOFA) was drawn up, regulating the allocation of competing jurisdictions between the two States over acts carried out by visiting forces, and making provision for claims for damage resulting from their activities and for the settlement of disputes between sending and host States.

Allocation of jurisdiction: criminal jurisdiction

21.40  Detailed rules were drawn up in respect of entry and departure of forces; use of vehicles, goods, and services; taxes; and customs. Article VII deals with the exercise of criminal jurisdiction and Article VIII with waiver of claims and the exercise of civil jurisdiction. These Articles are complicated and have been the subject of much practical application as well as academic comment.43 As regards criminal proceedings the basic principle is one of concurrent criminal (p. 311) jurisdiction of the sending and host States with the priority right to exercise jurisdiction being based on the nature of the offence and the identity of the offender. Thus the offences by military personnel of the sending State which arise out of any act or omission in the performance of official duties are subject to the primary jurisdiction of the sending State, as are also offences against the property or security of the sending State or of a member of a force, civilian component, or dependent, and which arise out of any act or omission in the performance of official duty. In 1998, for example, a NATO fighter plane on training exercises struck a ski lift cable in Italy causing the death of 20 skiers, and the pilot was later tried and acquitted of manslaughter by a military court in the United States. Other offences, and in particular those against nationals of the host country, are subject to the primary jurisdiction of the host State. The authorities of whichever State has the primary right are required to give sympathetic consideration to a request for a waiver of its right by the other State where the latter considers such waiver to be of particular importance.

Allocation of civil jurisdiction

21.41  There is no general allocation of civil jurisdiction in the NATO SOFA; instead there is a general waiver by both States of all claims for damage to any property owned or used by it caused by a member of the armed services in the execution of his duties. It also contains a provision relating to respect for the laws of the receiving State and a prohibition against execution (but not the giving) of a judgment against a member of a force or a civilian component in connection with acts done in performance of official duty. In general creditors and victims are left to rely on the domestic legislation of the host State since there is no provision in the agreement for the exercise of civil jurisdiction by the sending State.

NATO SOFA a model for later agreements on visiting forces

21.42  By reason of its even-handed treatment of the interests of the sending and host States and the participation of the foremost military power, the United States, the NATO SOFA has received widespread acceptance—sometimes with some amendments—as a model for later bilateral and multilateral agreements relating to the deployment of armed forces abroad. The Partnership for Peace (PfP) SOFA of 19 June 1995 adopts the entire text of the NATO SOFA requiring its 39 States Parties (which included East European States some of whom later became candidates for NATO membership) to apply the NATO SOFA among themselves as if they were parties to it. EUROFOR, a rapid reaction force served by an integrated headquarters, also employs a SOFA drawn up on the same principles as the NATO model of concurrent jurisdictions in respect of the forces placed at its disposal.

(p. 312) The UN General Convention on Privileges and Immunities and the UN SOMA

21.43  Although, as explained above, officials and experts working on specific tasks on behalf of the United Nations are covered by the UN General Convention on Privileges and Immunities, this protection has not been found adequate to cover the circumstances of deployment of UN military or civilian missions into crisis situations. The United Nations, following the authorization by the Security Council of military observer missions or peacekeeping contingents, first began to negotiate and apply Status of Mission Agreements (SOMAs) to regulate the deployment of military missions which spelt out the consent of the host State and dealt with questions of jurisdiction and liability for damage. In these situations an initial arrangement devised to cover the deployment of UNEF in 1956 following the armed attack on Egypt by Israel has been standardized into a Model UN SOMA. This agreement sets as a precondition the prior consent of the State in whose territory there is to be a deployment of the force, and applies a principle of the exercise of unified command and control over operations by the UN with specific requirements as to the use of force beyond self-defence. The level of protection granted varies according to the circumstances of the operation, whether for collective self-defence, humanitarian assistance, or training and establishment of local security and civil administration. The greater the security risks of a particular deployment the more likely will be the conferment by the relevant SOMA of absolute immunity on military personnel from criminal jurisdiction of the receiving State and immunity from civil jurisdiction for acts committed in performance of official duties. As under the UN General Convention on Privileges and Immunities high-ranking officials are granted a status equivalent to that of diplomatic envoys under international law, UN officials seconded to the force retain the immunities enjoyed under the UN Convention and military observers and civilian advisers enjoy the status of experts. Specific rules in the UN SOMA cover the military personnel of the UN force in respect of their activities in the host State. The UN SOMA has been applied to UN operations in Mozambique, Rwanda, Central African Republic, Darfur, and Ethiopia and adopted by other organizations, as with NATO with regard to the Implementation Force (IFOR) and the Stabilization Force (SFOR) in Bosnia and Herzegovina and by the African Union with regard to observer and confidence-building missions in Sudan and Darfur.

21.44  The absence of a single legal regime for visiting armed forces and the many variations of SOFAs and SOMAs are explained by the diverse objectives pursued by visiting forces and missions (from ceasefire operations to training in national institution building), considerations of military necessity, and political and cultural disparities between sending and host States. However, features common to (p. 313) all the agreements are the functional basis of the immunities conferred, the exclusive competence of the sending State over discipline, and internal administration of the force, with the host State permitted to exercise criminal jurisdiction to only a limited extent where its public order or interests are specially affected by actions of the visiting forces.44

EU SOFA and EU SOMA

21.45  Over the past 10 years since the European Security and Defence Policy (ESDP) began to become operational, the EU has increasingly authorized deployment of forces of its Member States, first within the territory of other EU Members, and secondly in the territory of non-Member States. In consequence the EU has sought to clarify the conditions under which forces of one Member State are deployed on the territory of another and also to standardize the nature and terms of the agreements concluded with non-Member host States and with States contributing personnel for ESDP tasks and missions. The first EU agreement, the EU SOFA, has been devised to define the legal status of military and civilian forces of EU Member States deployed within the geographical ambit of the EU and within the territory of EU Member States. The different capacities in which the military and civilian personnel employed for the purpose of the European Security and Defence Policy (ESDP) perform their duties means that the privileges and immunities may attach to their sending States or to the EU. In one text the EU SOFA has sought to cover these different situations; whereas staff seconded to the institutions of the EU perform their duties in an international capacity on behalf of the EU, the armed forces and headquarters made available to the EU for the purposes of the ESDP are not formally incorporated into the structure of the Union. They continue to act in a national capacity and on behalf of the sending Member State unless they can be equated to an organ of the EU during their participation in activities within the context of the ESDP. Clearly this considerably complicates the determination of the primary jurisdiction and the authority entitled to grant a waiver. Given further that the term ‘official duty’ is not defined in the EU SOFA, though the immunity from jurisdiction is frequently dependent on the contested acts being in performance of official duties, and that Austria, Finland, Hungary, and Sweden have all made statements restricting the right of the competent authorities of the sending State to exercise jurisdiction within the territory of the receiving State, the application of these (p. 314) agreements is not always straightforward and as yet there is little practice on their interpretation.

The EU SOMA

21.46  The EU SOMA has been developed to provide for the exercise of jurisdiction and the privileges and immunities of Member States’ forces when deployed in crisis management missions in non-Member States. In addition to military peacekeeping missions, many EU authorized missions have been for civilian purposes such as police training, rule of law development, monitoring of elections or of human rights performance, or border strengthening. Most of these missions have been launched to support EU or international donor programmes and activities already in place. The express consent of the third State to the deployment of the mission has always been required. Civilian missions are funded from the budget of the European Union whilst the costs of military operations have been borne by the EU Member States contributing forces.

21.47  To eliminate the need for the Council of Ministers to issue a fresh negotiating mandate for each new EU crisis management mission it has adopted a Model SOFA and SOMA but has continued the practice in its original SOMAs of requiring the privileges and immunities equivalent to those enjoyed by diplomatic missions and agents under the Vienna Convention on Diplomatic Relations to be conferred on military and civil personnel of the sending State and a complete exemption of both the civil as well as the military personnel from the criminal jurisdiction of the host State. These terms were first negotiated with non-Member States not in a position to protest and where operational conditions were physically dangerous (for example Bosnia and Macedonia), but it has been criticized from within the Union itself and—for the reasons set out above in paragraph 21.29—is controversial on grounds of denial of access to justice for potential claimants.45

The underlying principles in status of forces agreements

21.48  While considerations of military necessity and political disparities between the sending and host States have prevented the emergence of a single legal régime applied universally to all deployment of visiting forces, the types of agreements discussed above support the recognition of three common underlying principles: functional immunity restricting the conferment of protection for the public (p. 315) function for which it is undertaken and not for the personal interests of the members of forces or missions; operational exigency by which the powers over discipline, security, and the internal administration of the force are reserved to the commander and to the State supplying the military force; and prerogatives to secure the continued functioning of the force as an effective military authority in the territory of the receiving State.(p. 316)

Footnotes:

The oldest was the International Telegraph Union—now the International Telecommunication Union.

See D Akande, ch 9 ‘International Organizations’, in M D Evans (ed) International Law (2nd edn, 2006).

Schermers amd Blokker in International Institutional Law (3rd edn, 1995) at para 29 put forward three requirements: establishment by international agreement, possession of its own separate organs, and operation under international law. Gardiner in International Law (Longmans, 2003) suggests at 206: ‘International organisations are legal entities created by groups of states and functioning under international law to achieve purposes defined in their constitutions’.

This was confirmed by the International Court of Justice in its Advisory Opinion Reparations for Injuries Suffered in the Service of the United Nations, 1949 ICJ Reports 174.

Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, HL.

See paragraph 27.27 below. The Treaty of Lisbon would confer express legal personality on the European Union, which would subsume the legal personality of the Community and of Euratom.

For a brief account of the constitutional evolution of the Red Cross see R K Gardiner, International Law (Harlow, 2003) 261–3.

The European Convention on State Immunity, Article 31 excludes acts committed by visiting armed forces from its provisions and the same position would seem to apply in respect of the provision of the 2004 UN Convention on State Immunity.

Article 7.

10  UKTS No 10 (1950).

11  The Observer, 2 March 2003, 15 and 29 February 2004; The Guardian, 26 and 27 February 2004. Criminal proceedings were brought against the author of the leak, a translator at the UK Government Communications Headquarters (GCHQ), but dropped in the face of advice that the prosecution would be unable to disprove her defence of ‘necessity’—justifying the leak because it exposed serious illegality.

12  Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 1999 ICJ Reports 62.

13  UKTS No 69 (1959).

14  The specialized agencies are:

  • International Labour Organization (ILO)

  • Food and Agriculture Organization (FAO)

  • International Civil Aviation Organization (ICAO)

  • United Nations Educational, Scientific and Cultural Organization (UNESCO)

  • International Monetary Fund (IMF)

  • International Bank for Reconstruction and Development (IBRD)

  • World Health Organization (WHO)

  • Universal Postal Union (UPU)

  • International Telecommunication Union (ITU)

  • International Refugee Organization (IRO)

  • World Meteorological Organization (WMO)

  • Inter-Governmental Maritime Consultative Organization (IMCO)

  • International Finance Corporation (IFC)

  • International Development Association (IDA)

  • World Intellectual Property Organization (WIPO)

  • International Fund for Agricultural Development (IFAD)

.

15  UKTS No 11 (1955).

16  UKTS No 42 (1957).

17  UKTS No 34 (1953) (extended by four later Protocols).

18  UKTS No 50 (1954).

19  2 UNTS 39 (Art IX at 72).

20  2 UNTS 134 (Art VII at 180).

21  264 UNTS (Art VI at 142).

22  UKTS No 1 (1961) (Art VIII).

23  UKTS No 53 (1968) (Ch VIII).

24  UKTS No 36 (1970) (Ch VIII).

25  See Convention relating to Cooperation for the Safety of Air Navigation (EUROCONTROL), 1960 UKTS No 39 (1963), Arts 21–7, and Additional Protocol to the Convention, 1970 (Cmnd 4499).

26  See Agreement relating to International Telecommunications Satellite Consortium (INTELSAT) UKTS No 80 (1973); and International Maritime Satellite Organization (INMARSAT).

27  European Launcher Development Organization (ELDO).

28  European Centre for Medium Range Weather Forecasts.

29  UKTS No 39 (1968).

30  UKTS No 28 (1967). These two organizations subsequently merged to form the European Space Agency.

31  General Assembly resolution of 13 February 1946.

32  Resolution (69) 29 adopted by the Committee of Ministers of the Council of Europe on 26 September 1969 and Explanatory Report (1970).

33  Al-Adsani v United Kingdom, 34 EHRR 11; Fogarty v United Kingdom, 34 EHRR 12; McElninney v Ireland and United Kingdom, 34 EHRR 13.

34  Article III s 4. It is expressly provided that ‘no waiver of immunity shall extend to any measure of execution’.

35  Waite and Kennedy v Germany 26083/94 [1999] 30 EHRR, 118 ILR 121; Banque Africaine de Developpement v Degboe, France Court of cassation, ch. Sociale, 25 January 2005 JDI (2005) 1142 n. Corbion; (2006) 110 RGDIP 217 n. Nicholas Houpais; ENTICO v UNESCO and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 531, [2008] 1 Lloyd’s Rep 673.

36  UKTS No 2 (1976).

37  UKTS No 18 (1969).

38  11 UNTS 11. The US acceded to the General Convention in 1970.

39  1 UNTS 163.

40  The first five were the Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Wheat Council, UKTS No 14 (1969); Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Sugar Organization, UKTS No 88 (1969); Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Coffee Organisation, UKTS No 86 (1969); Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Tin Council, UKTS No 38 (1972); Headquarters Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Cocoa Organization, UKTS No 94 (1975).

42  Text in UN Doc. A/CONF.67/16, and in (1975) 69 AJIL 730.

43  D Fleck and S Addy, The Handbook of the Law of Visiting Forces, ch IV ‘The Status of Forces, Jurisdiction’ 108 et seq; A Sari, The Jurisdictional Immunities of Visiting Forces under Public International Law: A Case Study of the European Security and Defence Policy (2008 University College London doctoral thesis) chs 4 and 5.

44  A Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: the EU’s Evolving Practice’ (2008) 19 EJIL 67.

45  Sari, n 44 above, and ‘The Conclusion of International Agreements by the European Union in the context of the ESDP’ (2008) 57 ICLQ 53.