Part VIII International Institutional Law, Ch.49 Privileges and Immunities
Edited By: Jacob Katz Cogan, Ian Hurd, Ian Johnstone
- Membership of international organizations — International organizations, practice and procedure — Resolutions of international organizations
It is generally accepted that international organizations require a broad range of privileges and immunities in order to carry out their tasks independently from any interference by the domestic law and courts of host or other states. This functional necessity rationale has become the established justification for granting a special treatment and has been rarely questioned by courts or other decision-makers. Only recently, the growing scope of activities of international organizations coupled with a heightened rights-awareness of those who might be negatively affected by broad privileges and immunities of international organizations has induced questions about the legitimacy of sweeping privileges and, in particular, of often de facto absolute immunity from the jurisdiction of domestic courts.
This chapter1 will briefly outline the development of privileges and immunities of international organizations. It will focus on how the standard of ‘functional’ immunity has been applied in practice and will try to assess the future perspectives concerning the challenges to and continued justification of such a ‘preferential’ legal position.
(p. 1049) The Past and Present Typical Content of Privileges and Immunities of International Organizations
The traditional subjects of international law—sovereign states and their representatives—have enjoyed privileges and immunities for centuries. One of the first international organizations to be endowed with privileges and immunities, the League of Nations, provides an interesting example of the initial uncertainty whether these new subjects of international law should also enjoy such special rights. Its constituent instrument, the Covenant, merely stipulated ‘diplomatic’ privileges and immunities of the League’s employees and the inviolability of its property.2 Only a subsequent agreement with its host state Switzerland, the so-called modus vivendi, provided that the League itself possessed international personality and that it could not ‘in principle, according to the rules of international law, be sued before the Swiss Courts without its consent’.3 It was this model that proved crucial for other international organizations to enjoy both personality and privileges and immunities. After World War II, the UN Charter prominently adopted the notion of functional personality as well as functional privileges and immunities. Pursuant to Article 104 of the UN Charter: ‘The 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.’4
According to Article 105 of the UN Charter:
The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.5
Most other international organizations set up after 1945 have followed the UN’s example and contain express privileges and immunities provisions in a functional sense. Thus, the constituent treaties of the World Health Organization,6 the References(p. 1050) Organization of American States,7 the World Trade Organization (WTO),8 or the Council of Europe,9 equally provide for functional privileges and immunities.
Privileges and immunities in turn cover a wide spectrum of special rights and prerogatives, often in the form of exceptions from parts of a national legal order. In general, privileges are exemptions from the otherwise applicable substantive law of a state, while immunities are usually regarded as exemptions from the administrative, adjudicatory, or executive powers of a state.10 The typical ‘privileges’ of international organizations are partial exemptions from some areas of national law, such as taxes, foreign exchange controls,11 customs,12 or immigration rules.13 Most prominent are the fiscal privileges which comprise exemptions from the obligation to pay any direct taxes for an international organization itself14 and regularly also for its employees.15 Disagreements about fiscal privileges are rare, though sometimes the scope of functional tax exemptions of international organizations16 or of their staff has led to disputes.17 With regard to indirect taxes various reimbursement schemes References(p. 1051) are frequently envisaged.18 In addition, the typical privileges and immunities of an international organization also encompass such special rights as the inviolability of premises and archives19 and the freedom of communication.20
In the field of immunities, the exemption from ‘legal process’, jurisdictional immunity, and immunity from execution or enforcement measures have proven to be most important in practice.21
In addition to an organization’s own immunity from legal process, its staff and representatives of members also partake of an organization’s functional immunity.22 Not intended for their personal interest,23 officials usually enjoy immunity from legal process for their ‘official’ acts.24 Only top officials enjoy absolute diplomatic immunity. ‘Functional’ immunity is also granted to experts on mission to protect the specific tasks entrusted to them.25 State representatives enjoy, at a minimum, functional immunity.26 In practice, they are often accorded diplomatic immunity.
References(p. 1052) In addition to jurisdictional immunity, the said categories of persons also enjoy a number of other privileges and immunities, such as personal inviolability as well as inviolability of their documents, exemptions from immigration restrictions and registration requirements for foreigners, and diplomatic privileges in regard to exchange facilities. Officials additionally enjoy exemptions concerning their taxable income and with regard to national (military) service obligations.
The Legal Bases of Privileges and Immunities
Privileges and immunities are accorded to international organizations mostly by different types of treaties. In addition to provisions contained in constituent instruments, which often generally provide for ‘functional privileges and immunities’,27 the privileges and immunities of international organizations are frequently laid down in more detail in separate multilateral privileges and immunities agreements for each organization. Within the ‘UN family’ there are two conventions of this type, the so-called General Convention28 and the Specialized Agencies Convention,29 dealing with the privileges and immunities of the United Nations and its specialized agencies respectively. Similar treaties have been concluded with regard to the Council of Europe,30 the Organization of American States,31 and other organizations.
Further, ‘headquarters agreements’ or ‘seat agreements’, bilateral treaties between the international organization and the country where it has its headquarters or seat, or treaties concluded with non-host states in which international organizations operate regularly contain additional provisions on the exact scope of privileges and immunities.32
References(p. 1053) The question of whether there is customary international law concerning privileges and immunities of international organizations and, if so, the precise content of such customary law has remained controversial.33
In addition, domestic legislation may contain privileges and immunities of international organizations. Countries following a dualist legal tradition of incorporation will require a special national legal basis for granting privileges and immunities to international organizations.34 But also countries of a ‘monist’ legal tradition sometimes enact specific legislation. Such legislation may clarify the interpretation of the due privileges and immunities of international organizations given by a certain state. It may also be necessary in case a state wishes to extend privileges and immunities to an international organization of which it is not a member and with which it has not (yet) concluded a treaty or in order to confer privileges and immunities also on entities not strictly falling into the category of an international organization.35
The Justification for Privileges and Immunities
International organizations are in essence the creatures of their members. They are funded and controlled by member states which decisively influence the activities of international organizations through their actions in various organs of international organizations. The independence of international organizations vis-à-vis their members—though legally enshrined in the ‘concept’ (or ‘fiction’) of international legal personality—is less clear. International organizations regularly possess certain References(p. 1054) institutional features to guarantee their independence, such as secretariats or other organs more removed from the direct influence of member states like expert organs or judicial institutions. Nevertheless, it is important to provide additional safeguards preventing individual members from exercising undue influence or pressure on an organization. One form of such external pressure could lie in the requirement to litigate before domestic courts. This could subject international organizations to an indirect control by member states through the latter’s judiciary.36 This consideration has made the ‘functional’ necessity of removing international organizations from the jurisdiction of national courts a generally accepted rationale for the granting of immunity from suit.37 Sometimes it is even broadly asserted that ‘[u]nder international law, an international organization generally enjoys such privileges and immunities from the jurisdiction of a member state as are necessary for the fulfilment of the purposes of the organization, including immunity from legal process, and from financial controls, taxes, and duties’.38
As regards financial privileges, however, it is less the independent functioning argument that justifies the various tax exemptions regularly accorded to international organizations than equality considerations in favour of all members.39 The exemption from the locally applicable tax rules of host states and other states where international organizations operate primarily ensures that such states do not receive an unfair financial gain by taxing the international organization.40 Since the funds for such tax expenses would mostly come from membership dues, taxation would in fact lead to a unilateral enrichment of taxing states at the expense of the (other) member states.
References(p. 1055) In addition to the predominant functional necessity rationale there are a number of other justifications for the conferment of privileges and immunities which may be found in court practice as well as in legal writings. Privileges and immunities are sometimes regarded as inherent qualities of international legal personality or considered to stem from state immunity as a kind of derived immunity.41
The Core Issue: The Scope of Jurisdictional Immunity
The scope of privileges and immunities depends upon the precise wording of the various applicable legal sources. As regards the central immunity accorded to international organizations, immunity from suit, the applicable sources usually offer a heterogeneous picture with immunity ranging from ‘functional’ to ‘absolute’ or even ‘sovereign’ at the same time. Thus, many controversies concern the exact scope of the jurisdictional immunity enjoyed by international organizations.
For the majority of international organizations functional immunity represents the most relevant standard as it is normally found in their constituent instruments.42 It is, however, remarkable that functional immunity is usually not clearly defined. Hardly any instrument providing for functional immunity explains what is meant by the immunity ‘necessary for the functioning’ of an international organization. As will be discussed later this has led to broadly diverging interpretations of the vague and general notion of functional immunity.
Though most constituent documents provide for functional immunity of international organizations, the more detailed privileges and immunities instruments often provide for absolute immunity of the same international organizations which suggests that they cannot be sued in any case. A clear example of this can be seen in the case of the UN and its specialized agencies. Both the General Convention and the References(p. 1056) Specialized Agencies Convention provide that the UN and its agencies ‘shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity’.43 In a similar vein, other multilateral privileges and immunities treaties provide for an unqualified, thus absolute, immunity of the beneficiary international organization.44 ‘Immunity from every form of legal process’ is also frequently provided for in headquarters agreements.45
Some immunity instruments expressly incorporate a state immunity standard. The most important example of such a sovereign immunity grant is the US International Organizations Immunities Act (IOIA)46 which has given rise to a considerable number of cases attempting to determine whether the legislative intent really was to confer upon international organizations a restrictive sovereign immunity—as codified in the Foreign Sovereign Immunities Act (FSIA)—or whether it was meant to bestow international organizations with the same absolute sovereign immunity enjoyed by foreign states before US courts at the time the IOIA was adopted.47
Specifically Restricted Immunity
Sometimes privileges and immunities instruments contain specific exceptions from a broad jurisdictional immunity. Examples are a number of more recent treaties specifically stating that the organization should not enjoy immunity in cases arising from car accidents.48
Another attempt at restricting the scope of functional immunity can be found in provisions delimiting the scope of official activities for which an international References(p. 1057) organization enjoys immunity. For instance, some privileges and immunities instruments may closely circumscribe the nature of ‘official activities’ as those ‘strictly necessary for its operation’.49
A different sort of restricted immunity generally applies in the case of various international financial institutions. Their immunity from suit is generally more limited. Development banks, in particular, are usually not endowed with immunity concerning their lending operations. Here, the functionality rationale is more or less reversed. Because a general immunity from suit would decrease the creditworthiness of such an organization, immunity only applies in limited areas. A good example of such a limited immunity can be found in the International Bank for Reconstruction and Development (IBRD)’s Articles of Agreement which do not provide for the Bank’s immunity as a matter of principle. Rather, they declare in which country court actions against the Bank may be brought, while stating that no actions may be brought which derive claims from members.50 This may have been one of the reasons why a US court resorted to customary international law in order to justify the World Bank’s immunity from suit in an employment dispute51 and to refute the argument that such a provision could be viewed as a waiver of immunity under the IOIA.52
The Jurisdictional Immunity of International Organizations in Practice
Against the background of such diverging standards of immunity from suit the precise meaning and reach of the jurisdictional immunity of international organizations References(p. 1058) has been difficult to ascertain. A large number of national courts have tried to come to terms with notions like ‘functional’ and ‘restrictive’ immunity and they have reached widely diverging results.53 In practice, the prevailing concept of functional immunity often leads to a de facto absolute immunity.
One of the reasons for this development certainly is the vagueness of the generally accepted concept of functional immunity. There is a tendency in some jurisdictions to interpret functional immunity as absolute immunity. Multilateral privileges and immunities treaties often provide for an unqualified, hence absolute, immunity even where the constituent instrument speaks of functional immunity.54 Courts may regard the more precise and detailed rules of the multilateral treaties as an interpretation of what ‘functional’ means in respect to jurisdictional immunity.55
Functional immunity may also lead to absolute immunity as a result of the functional personality concept of international organizations. If international organizations enjoy legal personality only to the extent required to perform their functions, they are—in a legal sense—unable to act beyond their functional personality. Any acts not covered by such a limited personality are ultra vires; that is, beyond the powers of the organization. This idea has been aptly captured in the phrase that ‘any activity of an international organization is either official or ultra vires’.56 If international organizations enjoy functional immunity—covering acts in the performance of their functions—and can only act within the scope of their functional personality, there is no room left for non-functional acts for which immunity would be denied. This has led national courts to conclude that ‘the immunity of international organizations, within the framework of their functional restrictions, is to be regarded in principle as absolute’.57
Further, courts may rely on the traditional absolute immunity enjoyed by states in their approach to the immunity of international organizations. This is particularly pertinent where courts are relying on statutory language which accords to international organizations the same immunity as states, such as in the case of the US IOIA,58 or where they consider a parallel to sovereign immunity principles applicable as a matter of customary law.
References(p. 1059) Where national courts have not concluded that international organizations should be accorded an unqualified immunity from legal process, their restrictions on the scope of immunity generally remain within modest realms. The only significant exceptions to the general reluctance of national courts to assert jurisdiction over international organizations can be found in Italian59 and US case law.60 Their courts often rely upon the iure gestionis–iure imperii dichotomy borrowed from state immunity in order to deny jurisdictional immunity in case of non-governmental activities, such as commercial transactions, as opposed to sovereign activities.
In the case of Italy, the application of sovereign immunity principles often results from specific reservations to privileges and immunities instruments pursuant to which Italy only granted ‘restrictive’ immunity accorded to foreign states under general principles of international law.61 The legality of such a reservation has been controversial and led to a major crisis between Italy as the headquarters state of an international organization and the latter.62 It resulted from the persistent exercise of judicial jurisdiction over cases brought against a UN specialized agency, the FAO, as affirmed by the Italian Supreme Court in 1982.63 Only when Italy withdrew its reservation and its courts started to grant FAO unqualified immunity from jurisdiction64 was this crisis defused.
In the case of the United States, the wording of the IOIA clearly indicates that state immunity principles should be relevant for deciding on the jurisdictional immunity of international organizations.65 US courts had difficulties with determining whether the reference to state immunity—made at a time when absolute immunity for foreign states was the accepted principle—was ‘frozen’ in time and thus implied absolute immunity for international organizations or was ‘dynamic’ and thus referred to the principles of state immunity at the time proceedings are brought. Since the acceptance of a restrictive immunity doctrine by the US executive branch66 and the adoption of the FSIA in 1976,67 restrictive state immunity has been firmly established in US law. This would imply that international organizations should also enjoy only References(p. 1060) restrictive immunity.68 The majority of US cases, however, managed to avoid this question by holding that even under a restrictive state immunity standard a particular action would be inadmissible against an international organization.69 Only recently a split of opinions manifested itself on the appellate level. While the DC Circuit Court held that the reference to the historic absolute state immunity standard would prevail,70 the Court of Appeals for the 3rd Circuit found that the immunity conferred by the IOIA would change with the law of foreign sovereign immunity,71 leading to a denial of immunity for a commercial transaction with a private party.
The Impact of Access to Justice Considerations on Jurisdictional Immunity
The broad, usually absolute, immunity accorded to international organizations in most jurisdictions implies that potential claimants are regularly deprived of access to domestic courts in order to pursue their claims against international organizations. The scope of such potential claimants ranges from staff members to private parties harmed by peacekeeping activities, from unsuccessful bidders in international References(p. 1061) organizations’ tender procedures to victims of traffic accidents. With very few exceptions, national courts will usually not permit their lawsuits to proceed.
As long as these potential claimants have alternative ways of legal recourse, the fact that they cannot sue before national courts may be acceptable. However, that is not always the case. While administrative tribunals exist for most international organizations, there are some international organizations that have no such mechanism for the settlement of staff disputes. Even where international organizations are subject to the jurisdiction of administrative tribunals these tribunals are regularly only competent to decide disputes between organizations and existing staff members. This implies that job applicants are normally unable to bring legal proceedings before administrative tribunals.72 Private parties that have entered into contractual relations with international organizations—such as for the provision of goods or services—may have been able to secure an arbitration clause pursuant to which alternative remedies are available in case of a dispute.73 But disappointed participants in tender proceedings in the course of public procurement are regularly unable to access a dispute settlement mechanism against the international organization for whose contract they may have made a bid.74 However, the entire group of ‘innocent bystanders’ affected by the delictual or tort acts of an international organization still seems to remain at the mercy of an international organization deciding whether a claims settlement mechanism is to be set up or to agree upon ad hoc arbitration. In fact, some international organizations have done so, such as the UN with regard to some claims arising from peacekeeping activities.75 But also in this context the UN may be unwilling to agree on dispute settlement ex post as was recently demonstrated in the case concerning the victims of the cholera outbreak in Haiti.76
References(p. 1062) Access to Justice
These disappointed potential claimants against international organizations, regularly unable to take the jurisdictional hurdle of immunity, usually have a strong interest in pursuing their claims. Over the last decades, however, the policy demands of having a legal forum where claims against international organizations can be adjudicated have been supported by legal arguments about the right of access to justice as a fundamental right. In addition, one should note that a number of privileges and immunities instruments contain an express treaty obligation to make available, ‘appropriate modes of settlement of … disputes arising out of contracts or other disputes of a private law character’.77
Access to court has been a traditional part of many international human rights instruments, as well as national fundamental rights guarantees. But with regard to potential claims against international organizations it has been ‘dormant’ for a long time. To be precise, most human rights treaties do not explicitly contain a right of access to court. Instead, instruments like the Universal Declaration of Human Rights,78 the International Covenant on Civil and Political Rights,79 or the European Convention of Human Rights (ECHR),80 provide for due process or fair trial guarantees. However, in the actual application of such standards it has become clear that the right to a fair trial requires not only a trial to be fair if one is provided for under national procedural law, but also the right to have a trial in the first place.81
Human rights bodies together with national, often constitutional, courts have developed the notion that access to justice must be effective. This implies that exemptions, which include jurisdictional immunity,82 are granted only where References(p. 1063) alternative—equally effective—ways of dispute settlement are readily available. This concept of the availability of an alternative forum has been inspired by the fundamental rights debate within the EC.83 It was then integrated into the immunity versus access to court debate by national courts and human rights institutions and it has nowadays become part of a widely accepted view on how international organizations should work.
The leading case in this regard is Waite and Kennedy,84 in which the ECtHR reconsidered Strasbourg’s traditional approach to immunities of international organizations by no longer accepting a general carve-out of international organizations from the jurisdiction of national courts. Instead, the Court recognized that (civil) claims against international organizations involved the right of access to court under Article 6 of the ECHR. It further held that while this right of access to justice might be limited for legitimate purposes, such as protecting the independent functioning of an international organization, such limitation was only legitimate and permissible if it also was proportionate. In the Court’s view, the proportionality of the grant of immunity depended upon the availability of ‘reasonable alternative means’.85 The possibility of legal recourse to administrative tribunals or similar institutions for staff members of an international organization, to arbitration for contractors of international organizations, or to claims commissions for victims of vehicle accidents or military measures taken by peacekeeping forces may embody such alternative remedies.
The idea that individuals have a right of access to justice concerning the determination of their rights and obligations is not merely a specific European approach limited to the contracting parties of the ECHR; it is also reflected in various other References(p. 1064) international courts and tribunals86 as well as administrative tribunals of international organizations which have recognized the ‘general principle’ that employees should have access to a form of employment dispute settlement.87
The Waite and Kennedy approach in national courts
National courts have also espoused the Waite and Kennedy test to the extent that today the availability of ‘reasonable alternative means’ of redress are often considered to be a requirement for the grant of jurisdictional immunity to international organizations.
Already well before the Waite and Kennedy judgment, the German Constitutional Court did not only affirm that German courts lacked jurisdiction over employment disputes between the European Organization for the Safety of Air Navigation (EUROCONTROL) and its staff in Hetzel v EUROCONTROL.88 It also held that the organization’s immunity before German courts did not violate minimum requirements of the rule of law principle contained in the German Constitution because the exclusively competent Administrative Tribunal of the International Labour Organization (ILOAT) provided an adequate alternative remedy.89 Although the German Constitutional Court has adopted a rather deferential attitude towards the adequacy of alternative means such as administrative tribunals of international organizations,90 it is obvious that it insists on retaining the ultimate power of control.
Comparable jurisprudential developments have taken place in France. Traditionally, French courts routinely dismissed actions directed against international organizations because they would interfere with the independent operation of such organizations.91 In 1997, however, a French appellate court actually refused References(p. 1065) to accord immunity to an international organization where the claimant would have been deprived of a forum hearing his claims.92 A similar reasoning was applied in Banque africaine de développement v M.A. Degboe.93
The availability of ‘reasonable’ alternative means of redress as a requirement for the grant of jurisdictional immunity to international organizations has also been crucial in Belgian court decisions. In Siedler v Western European Union,94 the Brussels Labour Court of Appeal found that the internal procedure for the settlement of staff disputes within the WEU did not offer the guarantees inherent to a fair trial. Thus, the limitation on the access to domestic courts as a result of the organization’s immunity from suit was incompatible with Article 6(1) of the ECHR. Expressly relying on the ECtHR decision in Waite and Kennedy,95 the Belgian court investigated whether the internal appeals procedure of the WEU constituted a ‘reasonable alternative means’96 to effectively protect the plaintiff’s rights. The court found that there were no provisions for the execution of the judgments of the WEU appeals commission,97 that there was no public hearing and the publication of decisions was not guaranteed,98 that the members of the commission were appointed by the Intergovernmental Council of the WEU for a short time mandate (two years) which created an excessively close link with the organization itself and that it was not possible to challenge a particular member of the appeals commission.99 As a result, the Belgian court concluded that the WEU personnel statute did ‘not offer all the guarantees inherent in the notion of due process’ and that thus ‘the limitation on the access to the normal courts by virtue of the jurisdictional immunity of the WEU [was] incompatible with Article 6(1) ECHR’.100 The Siedler case which was upheld by the Belgian Supreme Court101 is remarkable because it demonstrates that national courts may be willing to abandon functional immunity considerations when they consider the requirement of an adequate alternative means of dispute settlement not available. This consideration was equally present in the Energies nouvelles et environnement v Agence References(p. 1066) spatiale européenne case102 where a Brussels court upheld ESA’s immunity from suit because in the specific case the claimant had one or more ‘reasonable’ alternative means.103 In its judgment, the court also explicitly relied upon the case law of the ECtHR and found that the possibility of diplomatic representations by the Belgian representative to ESA or even the seizure of the organization’s ombudsman, while not strictly speaking a form of judicial or administrative redress, would constitute ‘reasonable alternative means’ in the sense of the ECtHR’s jurisprudence.104 Finally, Belgian courts extended the Waite and Kennedy rational demanding ‘reasonable’ alternative means to enforcement measures in Lutchmaya.105 Since the international organization had not made available any dispute settlement mechanism to execute a compensation judgment the claimant’s right of access to a court was restricted to such an extent that the very substance of this right would be affected.
Similar decisions are found in Italy where courts have upheld the immunity of international organizations in employment disputes as long as they have set up effective alternative dispute settlement procedures. Thus the judgments in European University Institute v Piette,106 Pistelli v European University Institute,107 and Drago v International Plant Genetic Resources Institute108 have basically endorsed the result of the Waite and Kennedy jurisprudence.
Also Swiss courts have adopted a similar reasoning. Already before the Waite and Kennedy case, the Swiss Federal Supreme Court held in ZM v Arab League109 that the Arab League enjoyed absolute immunity in Switzerland only as long as a procedure for the settlement of disputes with private parties existed. Finally, in Consortium X. v Swiss Federal Government (Conseil federal)110 the Swiss Supreme Court upheld the immunity of an international organization only after first satisfying itself that the alternative remedies provided for were sufficient from a human rights perspective.
However, it may be premature to predict whether national courts will generally follow the Waite and Kennedy approach.111 In fact, a number of courts seem References(p. 1067) to have rejected it and continue to grant immunity to international organizations irrespective of whether alternative mechanisms of dispute settlement exist or not.
A case on point is the UK judgment in Entico Corp Ltd v UNESCO.112 In that case the High Court rejected the argument that the right to a fair trial under Article 6 of the ECHR ‘conditioned’ UNESCO’s immunity. Rather, it found that the Waite and Kennedy reasoning was inapplicable because the applicable immunity instrument, the 1947 Specialized Agencies Convention,113 was adopted long before the ECHR entered into force for a minority of the Convention’s contracting parties. As a result it upheld the defendant organization’s immunity.
Also the Dutch Supreme Court in the well-known Srebrenica case114 gave only short shrift to the Waite and Kennedy approach. The case was a tort action brought by relatives of the victims of a genocidal massacre committed during the war in Bosnia–Herzegovina. The UN as co-defendant invoked its immunity from legal process under the UN Charter and the 1945 General Convention.115 In rejecting the Waite and Kennedy argument, the Dutch Supreme Court reasoned that the ECtHR had not considered the relationship between Article 6 of the ECHR and Article 103 of the UN Charter. It thus found that there was no reason to assume that the ECtHR had meant to include the UN when it had held that the availability of ‘reasonable alternative means to protect effectively their rights under the Convention’ was ‘a material factor’ in determining whether the grant of immunity to an international organization was permissible under the ECHR. This was particularly implausible in the Dutch Supreme Court’s view as regards acts of the UN under Chapter VII of the UN Charter.
In the ECtHR’s recent judgment in the Srebrenica case, in Stichting Mothers of Srebrenica v The Netherlands,116 the Strasbourg court upheld this Dutch immunity decision and found no violation of the right of access to court as a result of respecting the UN’s immunity from suit. According to the ECtHR, it would not follow ‘that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court’.117 The Court expressly relied on the ICJ’s Jurisdictional Immunities case118 with regard to sovereign immunity and References(p. 1068) continued to say that neither could Waite and Kennedy be interpreted ‘in such absolute terms’.119
In spite of such apparent set-backs to the Waite and Kennedy approach recently, it appears that many national courts, in particular in Europe, have ‘internalized’ the demands of effective alternative remedies to be available against international organizations to such an extent that they may be willing to curtail their immunity from suit in future cases.
The privileges and immunities of international organizations mainly serve the purpose of enabling them to function independently from any outside interference. The exemption from the jurisdiction of national courts also serves this central purpose. A closer examination of the applicable standards of immunity from suit has demonstrated, however, that immunity is not always accorded as an ‘absolute’ one, but often as a ‘functional’ or ‘restrictive’ one. Recent judicial developments have shown that the actual granting of immunity from suit to international organizations in specific cases is increasingly made dependent upon the availability of reasonable alternative dispute settlement mechanisms to individual claimants insisting on their fundamental right of access to justice.
1 This chapter draws on August Reinisch, “Privileges and Immunities,” in Research Handbook on the Law of International Organizations, ed. Jan Klabbers and Asa Wallendahl (Cheltenham: Edward Elgar, 2011), 132–55.
2 Arts. 7(4) and (5) of The Covenant of the League of Nations, 28 June 1919, 225 CTS 195, only provided for “diplomatic immunities” for League officials “engaged on the business of the League” and that League property was to be “inviolable.”
3 Para. I of the Communications du Conseil Fédéral Suisse concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail, entered into by the League of Nations and the Swiss Government on 18 September 1926, 7 OJLN (1926), Annexe 911a, 1422 (“Le Gouvernement fédéral suisse reconnaît que la Société des Nations, possédant la personnalité international et la capacité juridique, ne peut être, en principe, selon les règles du droit des gens, actionnée devant les tribunaux suisses sans son consentement exprès”).
11 See, e.g., Art. II, s. 5 of the Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15 (the General Convention) (“Without being restricted by financial controls, regulations or moratoria of any kind, (a) The United Nations may hold funds, gold or currency of any kind and operate accounts in any currency; (b) The United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it into any other currency.”)
12 See, e.g., Art. II, s. 7 of the General Convention (“The United Nations, its assets, income and other property shall be: (b) Exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the United Nations for its official use”).
13 See, e.g., Art. V, s. 18 of the General Convention (“Officials of the United Nations shall: … (d) Be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration”).
16 See European Molecular Biology Laboratory v Germany, Arbitration Award, 29 June 1990, 105 ILR (1997) 1, in which it was held that the functional tax privileges of an international organization for its “official activities” did not cover VAT exemptions as far as food and accommodation was supplied against payment.
17 See Tax Regime Governing Pensions Paid to Retired UNESCO Officials Residing in France (France—UNESCO), 14 January 2003, XXV UNRIAA 231–66, in which an arbitral tribunal found that the privilege contained in an international organization’s headquarters agreement, exempting the salaries and emoluments of staff members, did not extend to pension payments since such payments would be due to “former” staff members and not to staff members and because they were not covered by the notions of “salary or emolument.” See also the similar interpretations reached in M. Aquarone v France, Conseil d’État, 148683, 6 June 1997, ILDC 1809 (FR 1997); and in X v State Secretary for Finance, Supreme Court (Netherlands), 16 January 2009, Netherlands Judicial Decisions Involving Questions of Public International Law, 2008–2009, LANM Barnhoorn, Netherlands Yearbook of International Law 41 (2010): 379–491.
18 See, e.g., Art. II, s. 8 of the General Convention (“While the United Nations will not, as a general rule, claim exemption from excise duties and from taxes on the sale of movable and immovable property which form part of the price to be paid, nevertheless when the United Nations is making important purchases for official use of property on which such duties and taxes have been charged or are chargeable, Members will, whenever possible, make appropriate administrative arrangements for the remission or return of the amount of duty or tax”).
19 See, e.g., Art. II, s. 3 of the General Convention (“The premises of the United Nations shall be inviolable”) as well as Art. II, s. 4 of the General Convention (“The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located”).
20 See, e.g., Art. III, s. 9 of the General Convention (“The United Nations shall enjoy in the territory of each Member for its official communications treatment not less favourable than that accorded by the Government of that Member to any other Government including its diplomatic mission in the matter of priorities, rates and taxes on mails, cables, telegrams, radiograms, telephotos, telephones and other communications; and press rates for information to the press and radio. No censorship shall be applied to the official correspondence and other official communications of the United Nations”).
21 See Art. II, s. 2 of the General Convention (“The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity shall extend to any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution”).
22 See Art. 105(2) of the UN Charter (“Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization”).
23 Art. V, s. 20 of the General Convention (“Privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves”).
24 Art. V, s. 18(a) of the General Convention (“Officials of the United Nations shall: Be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity”).
25 See Art. VI, s. 22(b) of the General Convention (“Experts … shall be accorded: In respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind”). See also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, 62.
26 See Art. IV, s. 11(a) of the General Convention (“Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities: (a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind”).
29 Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, 33 UNTS 261 (the Specialized Agencies Convention). See on both conventions, August Reinisch (ed.), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies. A Commentary (Oxford: Oxford University Press, 2016).
32 See, e.g., Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, 26 June 1947, US–UN, 11 UNTS 11; Agreement regarding the Headquarters of the Food and Agriculture Organization (FAO), 31 October 1950, 1409 UNTS 521; Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287.
33 See Mirka Möldner, “International Organizations or Institutions, Privileges and Immunities,” in The Max Planck Encyclopedia of Public International Law, ed. Rudiger Wolfrum (Oxford: Oxford University Press, 2012), para. 11; Michael Wood, “Do International Organizations Enjoy Immunity Under Customary International Law?,” in International Organization Law Review 10 (2014): 287–318; Andreas Ziegler, “Article 105,” in The Charter of the United Nations, ed. Bruno Simma et al., 3rd ed. (Oxford: Oxford University Press, 2012), 2162, MN 7.
35 International Organizations Immunities Act (IOIA) 1945, 59 Stat. 669, 22 USCA §§ 288 et seq. See also Law on the Granting of Privileges and Immunities to International Organizations, Federal Act of 14 December 1977, Austrian Federal Law Gazette No. 677/1977, which was mainly adopted in order to permit the granting of privileges and immunities to the CSCE/OSCE which was not generally recognized as an international organization.
36 See the amicus curiae brief of the UN in the course of the US litigation in Broadbent v OAS, 481 F Supp 907 (DDC 1978), 628 F 2d 27 (DC Cir 1980). The UN submission is reprinted in the UN Juridical Yearbook (1980): 229 (“Intergovernmental organizations may be considered as collective enterprises of their member States. Their constituent treaties define precisely the influence each member is to have on the operations of the organizations, and how that influence is to be exercised—generally through collective organs. If individual members could then exert additional influence on those organizations, largely through the fortuitous circumstance of where their headquarters, or the offices or officials or assets, happen to be located this could drastically change the constitutionally agreed sharing of power within the organizations. Thus the immunity granted by states to an intergovernmental organization is really their reciprocal pledge that none will attempt to garner unilaterally an undue share of influence over its affairs”).
37 See Chittharanjan F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge: Cambridge University Press, 2005), 316; Charles H. Brower II, “International Immunities: Some Dissident Views on the Role of Municipal Courts,” Virginia Journal of International Law 41 (2000): 1; Jan Klabbers, An Introduction to International Institutional Law (Cambridge: Cambridge University Press, 2002), 148; August Reinisch, International Organizations before National Courts (Cambridge: Cambridge University Press, 2000), 234; Schermers and Blokker, International Institutional Law, 258; M. Singer, “Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns,” Virginia Journal of International Law 36 (1995): 53.
40 See UN Juridical Yearbook (1972): 190, 191 (the purpose of tax privileges “is to achieve equality of treatment for all officials independently of nationality and to ensure that funds contributed by all Members to the budget of the Organization are not channelled into the Treasury of a State by levying taxes on staff members’ salaries”).
42 See text at n. 27.
45 See, e.g., Art. VIII, s. 16 of the Agreement regarding the Headquarters of the FAO, 31 October 1950, 1409 UNTS 521; Art. 8 of the Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287.
46 Title I, s. 2(b) IOIA 1945 (“International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract”).
47 See text at n. 65.
48 Art. 3(1)(b) of the EPO Protocol on Privileges and Immunities of the European Patent Organisation, 5 October 1973, 1065 UNTS 199 (no immunity “in the case of a civil action brought by a third party for damage resulting from an accident caused by a motor vehicle belonging to, or operated on behalf of, the Organisation, or in respect of a motor traffic offence involving such a vehicle”); see also Art. IV(1)(b) of the Annex I to the Convention for the Establishment of a European Space Agency, Paris, 30 May 1975, 14 ILM (1975), 855.
49 Art. 3(4) of the EPO Immunities Protocol (“official activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical operation, as set out in the Convention”).
50 Art. VII, s. 3 of the IBRD Articles of Agreement, Washington, DC, 27 December 1945, 2 UNTS 134 (“Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank”).
52 Ibid., 620 (holding that Art. VII, s. 3 of the Bank’s Articles of Agreement waived immunity from jurisdiction only for “actions arising out of [the Bank’s] external commercial contracts and activities”).
53 For an overview of judicial practice, see Reinisch, International Organizations before National Courts; as well as the more recent contributions in August Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (Oxford: Oxford University Press, 2013).
55 The UN Office of Legal Affairs stated that the “detailed application” of the principle contained in Art. 105 of the Charter “was effected inter alia through the [General Convention]”: UN Juridical Yearbook (1983): 222. Others regard the multilateral instruments as “implementation of the brief and general provisions of the constituent instrument of the organization”: Pieter H. Bekker, The Legal Position of Intergovernmental Organizations (Dordrecht: Martinus Nijhoff, 1994), 129 et seq.
58 See n. 47.
62 See for more details on the Italy/FAO dispute, ibid., 131 et seq.
63 Food and Agriculture Organization of the United Nations v Istituto Nazionale di Previdenze per i Dirigenti di Aziende Industriali (INPDAI), Corte di Cassazione, 18 October 1982, Case No. 5399, UN Juridical Yearbook (1982): 234, 87 ILR 1.
65 See n. 47.
68 Dupree Associates, Inc. v Organization of American States and the General Secretariat of the Organization of American States, US District Court DC, 31 May 1977, 22 June 1977, No. 76-2335 (memorandum orders); 63 ILR 92.
69 Morgan v IBRD, US District Court DC, 13 September 1990, 752 F Supp 492 (DDC 1990); De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al., US District Court SDNY, 10 January 1994, 841 F Supp 531 (SDNY 1994); Tuck v Pan American Health Organization, US District Court DC, 17 November 1980, No. 80-1546 (DDC 1980); US Court of Appeals DC Cir, 13 November 1981; 668 F 2d 547 (DC Cir 1981); UN Juridical Yearbook (1981): 177. See also Reinisch, International Organizations before National Courts, 197 et seq.
70 Atkinson v Inter-American Development Bank, 156 F 3d 1335, 1341 (DC Cir 1998) (“In light of this text [of the IOIA] and legislative history, we think that despite the lack of a clear instruction as to whether Congress meant to incorporate in the IOIA subsequent changes to the law of immunity of foreign sovereigns, Congress’ intent was to adopt that body of law only as it existed in 1945—when immunity of foreign sovereigns was absolute”).
71 OSS Nokalva v European Space Agency, 617 F 3d 756 (3d Cir 2010) (“If Congress wanted to tether international organization immunity to the law of foreign sovereign immunity as it existed at the time the IOIA was passed, it could have used language to expressly convey this intent. For example, Congress could have simply stated that international organizations would be entitled to the ‘same immunity as of the date of this Act.’ Or, it could have just specified the substantive scope of the immunity it was conferring. Because it did neither, we interpret the IOIA in light of the Reference Canon to mean that Congress intended that the immunity conferred by the IOIA would adapt with the law of foreign sovereign immunity”).
72 See, e.g., two cases before the ILO Administrative Tribunal which were dismissed because job applicants were not (yet) staff members: Liaci v EPO, ILOAT Judgment No. 1964, 12 July 2000; and Klausecker v EPO, ILOAT Judgment No. 2657, 11 July 2007.
74 See, e.g., the General Assembly’s Fifth Committee’s (Administrative and Budgetary) Call for a reform of the UN procurement system, “Enhanced Transparency, Strengthened Accountability Needed, as United Nations Procurement Grows in Size, Complexity, Budget Committee Told,” 23 October 2006, http://www.un.org/News/Press/docs/2006/gaab3760.doc.htm; UN Procurement Practitioner’s Handbook, November 2006, http://www.unops.org/SiteCollectionDocuments/Procurement%20docs/UN%20procurement%20practitioners%20handbook.pdf.
76 In response to compensation claims raised by Haitian victims of a Cholera outbreak in 2010 which was probably caused by insufficient hygienic precautions prevailing in a UN Peacekeepers camp the UN Legal Counsel indirectly invoked the UN’s immunity by qualifying them as claims implying a “review of political and policy matters.” See Letter of Patricia O’Brien, Under-Secretary-General for Legal Affairs, The Legal Counsel, to Brian Concannon, Esq., IJDH, 21 February 2013 (“With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters. Accordingly, these claims are not receivable, pursuant to section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946”).
77 See, e.g., Art. VIII, s. 29(a) of the General Convention (“the United Nations shall make provisions for appropriate modes of settlement of … disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”).
78 Art. 10 of the Universal Declaration of Human Rights, GA Res. 217(III) (1948) (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”).
81 Golder v United Kingdom, Application No. 4451/70, 21 February 1975, Series A No. 18,  ECHR 1, para. 36; Osman v United Kingdom, European Court of Human Rights (ECtHR), Application No. 23452/94, 28 October 1998,  ECHR 101, para. 136.
82 Some of the older case law was premised on the idea that where certain potential defendants/respondents enjoyed immunity, a state lacked jurisdiction and was not able to grant access to court. See, e.g., Ary Spaans v The Netherlands, ECommHR, Application No. 12516/86, 12 December 1988 (Admissibility), 58 Decisions and Reports (1988), 119 (“The Commission notes that it is in accordance with international law that States confer immunities and privileges to international bodies like the Iran-United States Claims Tribunal which are situated in their territory. The Commission does not consider that such a restriction of national sovereignty in order to facilitate the working of an international body gives rise to an issue under the Convention”).
83 National courts like the German Constitutional Court exerted some pressure on the Community by holding that they would exercise their fundamental rights review even over Community acts “as long as” the Community did not have its own internal corresponding system of control. Internationale HandelsgesellschaftmbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel, Federal Constitutional Court, 29 May 1974,  2 CMLR 540 (Solange I). Only when the ECJ developed its fundamental rights jurisprudence in the 1970s, national courts renounced their judicial control powers “as long as” the ECJ itself provided adequate relief. In re application of Wünsche Handelsgesellschaft, Federal Constitutional Court, 22 October 1986,  3 CMLR 225 (Solange II).
84 Waite and Kennedy v Germany, Application No. 26083/94, ECtHR, 18 February 1999,  ECHR 13; Beer and Regan v Germany, Application No. 28934/95, ECtHR, 18 February 1999,  ECHR 6. The case arose from the fact that German courts granted the European Space Agency jurisdictional immunity from suit by two individuals who claimed to be employees of the organization. The claimants considered that this violated their right of access to court under Art. 6 of the ECHR. See C. Ryngaert, “The Immunity of International Organizations before Domestic Courts: Recent Trends,” International Organizations Law Review 7 (2010): 121; August Reinisch and Ulf A. Weber, “In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement,” International Organizations Law Review 1 (2004): 59.
85 Waite and Kennedy v Germany, para. 68 (“a material factor in determining whether granting … immunity from … jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention”).
88 Hetzel v EUROCONTROL, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59, 63. See also Albert Bleckmann, Internationale Beamtenstreitigkeiten vor nationalen Gerichten (Berlin: Duncker & Humblot, 1981); Ignaz Seidl-Hohenveldern, Die Immunität internationaler Organisationen in Dienstrechtsstreitfällen (Berlin: Duncker & Humblot, 1981).
89 Hetzel v EUROCONTROL, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59, at 91 (“status and procedural principles conformed to an international minimum standard of basic procedural fairness as it results from developed legal orders following the rule of law and from the procedural law of international courts”).
90 See B. et al v EPO, Federal Constitutional Court, Second Chamber, 3 July 2006, 2 BvR 1458/03; D. v Decision of the EPO Disciplinary Board, Federal Constitutional Court, Second Chamber, 28 November 2005, 2 BvR 1751/03.
91 Chemidlin v Bureau international des Poids et Mesures, Tribunal Civil of Versailles, 27 July 1945, 12 Ann Dig (1943–5), 281; International Institute of Refrigeration v Elkaim, Court of Appeal of Paris (21st Chamber), 7 February 1984, 77 ILR (1988), 498–506; Cour de Cassation, 1. ch. civ., 8 November 1988, 35 AFDI (1989), 875.
92 UNESCO v Boulois, Tribunal de grande instance de Paris, 20 October 1997, Rev. Arb. (1997) 575; Cour d’Appel Paris (14e Ch. A), 19 June 1998, Yearbook Commercial Arbitration XXIV (1999): 294, 295 (“UNESCO’s immunity would inevitably lead to preventing [claimant] from bringing his case to a court. This situation would be contrary to public policy as it constitutes a denial of justice and a violation of the provisions of Article 6(1) of the [ECHR]”).
105 Lutchmaya v General Secretariat of the ACP Group, Appeal decision, 4 March 2003, Journal des Tribunaux (2003), 684; ILDC 1363 (BE 2003); General Secretariat of the ACP Group v Lutchmaya, Final appeal judgment, 21 December 2009, ILDC 1573 (BE 2009).
111 See Cedric Ryngaert, “The Immunity of International Organizations before Domestic Courts: Recent Trends,” International Organizations Law Review 7 (2010): 121; August Reinisch and Ulf A. Weber, “In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement,” International Organizations Law Review 1 (2004): 59; August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” Chinese Journal of International Law 7 (2008): 285.