Immunity of International Organizations [1 ed.] 9789004296060, 9789004296046

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Immunity of International Organizations

Legal Aspects of International Organizations Series Editor Niels Blokker

VOLUME 55

The titles published in this series are listed at brill.com/laio

Immunity of International Organizations Edited by

Niels Blokker Nico Schrijver

LEIDEN | BOSTON

 Library of Congress Cataloging-in-Publication Data Immunity of international organizations / edited by Niels Blokker, Nico Schrijver.   pages cm. -- (Legal aspects of international organizations ; volume 55)  Includes bibliographical references and index.  ISBN 978-90-04-29604-6 (hardback : alk. paper) -- ISBN 978-90-04-29606-0 (e-book) 1. International agencies--Privileges and immunities--Congresses. I. Blokker, Niels, editor. II. Schrijver, Nico, 1954- editor. III. Title: International organizations law review.  KZ4850.I476 2015  341.2--dc23 2015015944

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. Issn 0924–4883 ISBN 978-90-04-29604-6 (hardback) ISBN 978-90-04-29606-0 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.



Contents Foreword VII List of Contributors x 1 International Organizations: The Untouchables? 1 Niels Blokker 2 Immunity of International Organizations: The Work of the International Law Commission 18 Johan G. Lammers 3 Do International Organizations Enjoy Immunity under Customary International Law? 29 Michael Wood 4 Should the 2004 UN State Immunity Convention Serve as a Model/ Starting Point for a Future UN Convention on the Immunity of International Organizations? 61 Philippa Webb 5 Immunity of the United Nations: Practice and Challenges 74 Bruce C. Rashkow 6 Privileges and Immunities of the World Health Organization: Practice and Challenges 91 Gian Luca Burci and Egle Granziera 7 The Privileges and Immunities of the World Intellectual Property Organization: Practice and Challenges 115 Edward Kwakwa and Marie-Lea Rols 8 Immunities of the European Union 137 Ramses A. Wessel 9 Immunities of International Organizations: A NATO View 161 Peter Olson

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The Immunity of International Organizations in the United Kingdom 176 Chanaka Wickremasinghe

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Austrian Courts and the Immunity of International Organizations 188 Kirsten Schmalenbach

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Belgian Courts and the Immunity of International Organizations 206 Eric De Brabandere

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Italian Courts and the Immunity of International Organizations 246 Beatrice I. Bonafè

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The Jurisdictional Immunity of International Organizations in the Netherlands and the View from Strasbourg 279 Thomas Henquet

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To What Extent Can and Should National Courts ‘Fill the Accountability Gap’? 313 August Reinisch

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Beyond Srebrenica and Haiti: Exploring Alternative Remedies against the United Nations 329 Nico Schrijver Afterwords 342 Index 359

Foreword Immunity rules are part and parcel of the law of international organizations. It has long been accepted that international organizations and their staff need to enjoy immunity from the jurisdiction of national courts. Nowadays, whenever new organizations are created, more-or-less standard immunity rules are usually included in the constituent instrument of the organization, in a multilateral treaty on privileges and immunities and / or in a headquarters agreement. The classic formula that an international organization ‘shall enjoy immunity’ or ‘shall be immune’ ‘from every form of legal process’ was used not only for the United Nations,1 but also, more than 50 years later, for the International Criminal Court.2 The inclusion of standard immunity rules such as this one is normally uncontroversial during the travaux préparatoires for the abovementioned three types of legal instruments. However, it is the application of these rules in practice that increasingly causes controversy. Claims against international organizations are brought before national courts by those who allegedly suffer from their activities, or by (current or former) staff members. National courts, in particular lower courts, have often been less willing to recognize the immunity of the organization concerned than the organization’s founding fathers. Likewise, public opinion and legal writings frequently criticize international organizations for invoking their immunity and for the lack of adequate means of redress for claimants. There may be different reasons why the immunity of international organizations has been hotly debated in recent years. First of all, there may be ‘quantitative’ reasons. The activities of international organizations have increased considerably over the years. As a result, the number of those who may be affected by, or suffer as a consequence of, such activities has also increased. In addition, there are reasons of principle: why should the acts and activities of international organizations be excluded from judicial review by national courts when this is not the case in respect of similar activities of states? Other reasons include the emphasis that is nowadays put on the ‘need for accountability’ and the right of a remedy for those claiming that international organizations have violated certain of their obligations. 1 See Art. 105 of the United Nations Charter, and Art. II Section  2 of the Convention on the Privileges and Immunities of the United Nations, opened for signature 13 February 1946, 1 UNTS p. 15 (entered into force 17 September 1946). 2 See Art. 48 of the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS p. 3 (entered into force 1 July 2002).

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It is against this background that we decided to organize an international conference at the Law School of Leiden University on 9 and 10 June 2013. We were fortunate to find a number of highly-qualified academics and practitioners willing to give presentations. Over 100 participants coming from many different countries took part in lively discussions. We are grateful for the generous financial assistance for this conference from the Royal Netherlands Academy of Arts and Sciences and from the Netherlands Ministry of Foreign Affairs. Following the conference, the presentations were elaborated into written contributions that were published in the International Organizations Law Review (Vol. 10, number 2, 2014). In order to celebrate the 10th anniversary of this journal, and in order to make the results of the conference more visible now the topic of the immunity of international organizations is so much in the public and academic spotlights, it was decided to reproduce these written contributions in a book.3 The International Organizations Law Review was launched by Niels Blokker and Ramses Wessel, who have been the editors-in-chief since the beginning. Together with an excellent and very active Board of Editors they have succeeded in developing it into one of the leading journals in the field. This compilation follows the structure used for the Leiden Conference. After the more extensive introduction to the theme of the conference by Niels Blokker which follows this foreword, the first set of contributions to this volume examines whether there are any general rules that are applicable in this field. To what extent is there any unity within the diversity of the many specific applicable multilateral and bilateral treaties? Or are the needs of individual international organizations too specific for such general rules? Johan Lammers discusses the work of the International Law Commission in relation to the immunity of international organizations. Philippa Webb analyzes whether the 2004 UN Convention on the Jurisdictional Immunity of States and Their Property should serve as a model or as a starting point for a future UN Convention on Immunity of International Organizations. Thirdly, Michael Wood discusses the question whether immunity of international organizations is part of customary international law. The second set of contributions then looks at the theme of this compilation from the perspective of international organizations. Three contributions deal with universal organizations: the United Nations (Bruce Rashkow) and two specialized agencies, the World Health Organization (Gian Luca Burci and Egle Granziera) and the World Intellectual Property Organization (Edward Kwakwa 3 The text of the chapters of this book is identical to the text of the articles published previously in IOLR, leaving aside a few minor editorial changes.

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and Marie-Lea Rols). Two other contributions cover international organizations with limited membership: the European Union (Ramses Wessel) and the North Atlantic Treaty Organization (Peter Olson). Thirdly, a number of contributions look at the immunity of international organizations from the perspective of national courts from five states that host international organizations: Austria (Kirsten Schmalenbach), Belgium (Eric De Brabandere), Italy (Beatrice Bonafè), The Netherlands (Thomas Henquet), and the United Kingdom (Chanaka Wickremasinghe). Finally, August Reinisch and Nico Schrijver discuss two more general questions. Reinisch analyzes the question to what extent national courts could or should ‘fill the accountability gap’. Schrijver analyzes possible alternative remedies that could be developed for those who want to bring claims against the UN, against the background of the Srebrenica judgments of Dutch courts dealing with the immunity of the UN and the case of the victims of the cholera epidemic in Haiti. We are grateful to the authors for their willingness to prepare their written contributions in the weeks and months following the conference, and we thank the managing editor of IOLR, Peter Holcombe Henley, for the editorial work done. We also thank Claire Henderson, who transformed the contributions to IOLR into the chapters of this book and who also prepared the index. Niels Blokker & Nico Schrijver

Leiden, December 2014

List of Contributors Niels Blokker Professor of International Institutional Law (Schermers Chair), Grotius Centre for International Legal Studies, Leiden University. [email protected] Beatrice I. Bonafè Associate Professor, Department of Political Science, Sapienza University of Rome. b­ [email protected] Gian Luca Burci Legal Counsel, World Health Organization. Adjunct Professor, Graduate Institute of International and Development Studies, Geneva. [email protected] Eric De Brabandere Associate Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. Member of the Brussels Bar. e.de.brabandere@ law.leidenuniv.nl Egle Granziera Legal Officer, World Health Organization. [email protected] Thomas Henquet Legal Counsel, International Law Division, Netherlands Ministry of Foreign Affairs. [email protected] Edward Kwakwa Legal Counsel, World Intellectual Property Organization. edward.kwakwa@ wipo.int Johan G. Lammers Former Legal Adviser to the Netherlands Ministry of Foreign Affairs and Professor of International (Environmental) Law at the University of Amsterdam. [email protected] Peter Olson Former Legal Adviser and Director, Office of Legal Affairs, NATO Headquarters, Brussels. [email protected]

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Bruce C. Rashkow Lecturer, Columbia University Law School. Former Director of the General Legal Division of the Office of Legal Affairs, United Nations. Former Assistant Legal Adviser for United Nations Affairs, US Department of State. rashkowb@ gmail.com August Reinisch Professor of International and European Law, University of Vienna, Austria. [email protected] Marie-Lea Rols Office of Legal Counsel, World Intellectual Property Organization. marielea. [email protected] Kirsten Schmalenbach Professor of Public International Law, University of Salzburg. Kirsten. [email protected] Nico Schrijver Professor of International Law and Academic Director of the Grotius Centre for International Legal Studies, Leiden University. Senator (part-time) in the Dutch House of Parliament. [email protected] Philippa Webb Lecturer in Public International Law. King’s College London. philippa.webb@ kcl.ac.uk Ramses A. Wessel Professor of International and European Institutional Law, University of Twente, The Netherlands. [email protected] Chanaka Wickremasinghe Legal Counsellor, Foreign and Commonwealth Office, United Kingdom. [email protected] Michael Wood Barrister, 20 Essex Street, London. Member of the International Law Commission. Senior Fellow, Lauterpacht Centre for International Law. MWood@ 20essexst.com

chapter 1

International Organizations: The Untouchables? Niels Blokker Abstract Immunity rules belong to the traditional standard rules of international organizations. It has long been accepted that international organizations and their staff need to enjoy immunity from the jurisdiction of national courts. This understanding is generally founded on the principle of functional necessity: international organizations need immunity in order to be able to perform their functions. However, the principle of the immunity of international organizations is increasingly criticized: if national courts cannot exercise jurisdiction over international organizations, who can? After outlining the intentions behind convening this compilation, this chapter will discuss the origin of the immunity rules of international organizations. Next, it will give a brief overview of the codification of such rules, both in the 1940s and in recent years. Finally, it will present some observations on the question of whether there is a need to ‘update’ or revise the current immunity rules of international organizations.

Keywords immunity – international organizations – functional necessity

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Introduction: The Theme of This Compilation In a period in which both international and municipal lawyers tend to think increasingly in terms of the elimination or limitation of all forms of immunity it is important to grasp clearly the basic institutional function of international immunities and the importance of that function at the present stage of development of world organization.

These words could have been written today, but they were not. They were written more than half a century ago by C. Wilfred Jenks,1 one of the pioneers in 1 C. Wilfred Jenks, International Immunities (Stevens, London, 1961) p. 166.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004296060_002

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what was at the time a new field within international law, the law of international organizations. Immunity rules belong to the traditional standard rules of international organizations. It has long been accepted that international organizations and their staff need to enjoy immunity from the jurisdiction of national courts. The rationale for this immunity is different from that for state immunity. While state immunity is based on the par in parem non habet imperium principle,2 the immunity of international organizations is generally founded on the principle of functional necessity: international organizations need immunity in order to be able to perform their functions. They would not be able to do so if a national court could interfere in their work. Member states would not accept the exercise of jurisdiction by a court of one of them over acts or activities of ‘their’ organization. Traditionally considered as being one of the pillars of this field of law, the principle of the immunity of international organizations has become increasingly criticized. If national courts cannot exercise jurisdiction over international organizations, who can? Whereas in the field of state immunity, states can always be sued in their own courts, most international organizations do not have their own courts. Why exclude acts and activities of international organizations from judicial review, while this is not the case for similar activities of states? These are uneasy questions, which have been raised ever since it was decided that international organizations should enjoy immunity. But now they are raised in a climate in which the activities of international organizations are increasingly under fire. In recent years, national courts have been confronted with a wide variety of cases brought against international organizations not only by insiders (primarily the staff of the organization), but also by outsiders (such as victims of United Nations peace operations and individuals challenging decisions of the European Patent Organization). From the early days in which immunity rules became part of the law of international organizations, it has been recognized that such immunity should not leave complainants without a remedy. Therefore, mechanisms have been created to deal with staff disputes, and arbitration was seen as a proper way to deal with disputes of a private law character. However, it is increasingly questioned whether these remedies suffice. Perhaps this is partly because of the current criticism and skepticism towards international organizations. But it is also true that international organizations have mushroomed, and that more of their activities directly affect the life and work of private parties. In some cases, national courts have rejected the immunity claims of international 2 ‘An equal has no power over an equal.’

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organizations in the absence of appropriate alternative remedies being available for claimants. This has given some urgency to the question of whether the traditional approach towards immunity of international organizations is still adequate. Originally, the general idea was that international organizations should primarily exist as permanent frameworks for cooperation and coordination amongst states, and that individuals would almost by definition indirectly benefit from their activities. International organizations were generally seen as ‘good-doers’ rather than ‘wrongdoers’. But international organizations have come of age and have become important actors in the play of international relations. Mosler wrote some 40 years ago that international organizations “now form a kind of superstructure over and above the society of states”.3 This statement is even truer today. However, international organizations are not only a remote superstructure. Their activities do also affect our daily lives, indirectly or directly, more than we realize. In this sense they are no longer distant and elusive entities, the untouchables, les intouchables. They have become concrete and relevant public authorities that form part of a global governance framework. As with any public authority, things may go wrong. Or—and this is something else—things may be seen to be wrong. Staff members may be dismissed in violation of the rules of the organization. An organization may not comply with a private law contract. And there have of course been cases about the acts and operations of international organizations, such as the case against the United Nations before Dutch courts in which it was claimed that the UN should have done more to prevent the genocide in Srebrenica.4 As any public authority, international organizations must be accountable. Traditionally, they are accountable to their member states. But is this still adequate? Are there any remedies available for those who claim to suffer from the activities of international organizations and seek redress? If not, should there be such remedies? The acts of international organizations are sometimes challenged before national courts. This may happen in proceedings brought against international organizations themselves, or against states (or the European Union) that have implemented these acts. This compilation will not address the latter

3 H. Mosler, ‘The International Society as a Legal Community’, (1974-IV) 140 Recueil des Cours pp. 1–320, at p. 189. 4 For a detailed consideration of this particular instance, see further the contribution made by Thomas Henquet to this volume, entitled ‘The Jurisdictional Immunity of International Organizations in the Netherlands and the View from Strasbourg’.

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situations,5 but several of its chapters will consider the first type of proceedings, being cases brought against international organizations before national courts. International organizations will normally invoke their immunity from jurisdiction in such cases, but national courts have not always accepted such immunity claims. Section 2 of this contribution will discuss the origin of the immunity rules of international organizations. Next, Section  3 will give a brief overview of the codification of such rules, both in the 1940s and in recent years. Finally, Section 4 will present some observations on the question of whether there is a need to ‘update’ or revise the current immunity rules of international organizations. 2

The Roots of Immunity Rules of International Organizations

The issues mentioned above are not really new. International organizations and their officials have long enjoyed immunity from the jurisdiction of national courts—and in this sense they are ‘the untouchables’. For example, a so-called ‘Modus Vivendi’ was concluded between Switzerland and the League of Nations, in 1921 and in 1926, providing that the League could not be sued before the Swiss courts without its consent.6 Immunity was also enjoyed by officials of international organizations, who claimed immunity when cases were brought against them. Courts have struggled with these cases, and a good example is given by a juge de paix in the 16th arrondissement of Paris in the case of Avenol v. Avenol. Joseph Avenol was the second Secretary-General of the League of Nations. He was separated from his wife, and had been ordered to pay 12,500 francs per 5 See, for an extensive study of these situations, A. Reinisch, Challenging Acts of International Organizations before National Courts (Oxford University Press, Oxford, 2010). 6 These texts are reproduced and translated in M. Hill, Immunities and Privileges of International Officials (1947), at pp. 121–129 (1921 Modus Vivendi) and pp. 138–142 (1926 Modus Vivendi). The 1921 Modus Vivendi stated that the League “may claim the same independence in respect of Swiss administrative and judicial organs as other members of the international community and thus cannot be sued before the Swiss courts without its own consent (apart from such exceptions as are recognized in international law, e.g., in regard to suits concerning real property, etc.)”. In the 1926 Modus Vivendi, the words “own consent” were replaced by the words “express consent”. This study by Hill (who served the League of Nations Secretariat for almost two decades) provides an overview of the law and practice regarding privileges and immunities of officials of international organizations during the 1920s and 1930s, with emphasis on the League of Nations experience.

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month as maintenance to her. He appealed against this order, asserting that as Secretary-General of the League he enjoyed diplomatic privileges and immunities under Article 7 of the Covenant of the League which exempted him from the jurisdiction of the courts of all member states of the League, including the courts of his homeland, France. The juge de paix rejected his claim in 1935, as follows:7 Avenol’s argument is too simple. … If we were to decide that Avenol is covered by diplomatic immunity before the courts of the sixty States, Members of the League, we should have reached a decision which is… palpably contrary to all the notions of law which have been gradually imposed on the human conscience since the ages of barbarism and which have become the universal charter for all civilized actions—a decision that Avenol is placed above the law, higher than the heads of States. … It would follow that all the agents and officials of the League of Nations from the humblest to the highest could, by their private acts, infringe the rights of their neighbours by entering into contracts which they are free to violate. … It is not possible that the Covenant of the League of Nations…, which governs the highest moral and judicial authority in the world, entrusted with the establishment of the law of nations, should provide the world with an astonishing example of a provision which is in such flagrant contradiction to the sacred and profound sentiment of justice. This is an example of a case that was a private matter and did not involve acts of an international organization. But there have also been cases in the 1920s and 1930s in which official acts of an international organization were at stake. An example is the case of Mr. Profili, head cashier of the International Institute of Agriculture. He was dismissed from his post and sued the Institute before Italian courts, claiming compensation. On 26 February 1931, the Corte di Cassazione decided that this Institute was an international legal person, free, as regards its internal affairs, from interference by the sovereign power of its member states: the Institute therefore enjoyed immunity in this case. Interestingly, the Corte di Cassazione also noted that only one administrative remedy was available for Mr. Profili: an appeal to the same organ which had been responsible for the decision to dismiss him. According to the Corte, in the 7 Avenol v. Avenol, 8 March 1935, Juge de Paix, XVIe Arrondissement de Paris, Recueil Général Part 3, at p. 38; English translation in: (1935–7) 8 Annual Digest of Public International Law Cases pp. 395–397.

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English translation: “Opinions may be divided about the adequacy of such a remedy…. However, though it may be evident that there is a need for a more progressive system, there is nothing which authorizes the intervention of an external jurisdiction”.8 These two examples are of course small cases, different from some of the cases nowadays that often involve the external activities of international organizations. But nevertheless: plus ça change, plus ça reste la même chose. Already in early cases such as these, key principles for the effective and independent functioning of international organizations were identified. The Corte di Cassazione rightly concluded that the organization concerned was an independent legal person that should be free from interference by the member states. Moreover, both this Corte and the Paris juge de paix were fully aware of the downside of immunity, the resulting sentiment of denial of justice, a sense of unfairness, in the event that no remedy were to be available. Aside from these and other cases before national courts in the 1920s and 1930s, there was also a general discussion in this period about the privileges and immunities of international organizations. There have been a number of important legal writings, and the Institut de Droit International devoted part of its 1924 session in Vienna to this topic. During this period, most of the fundamentals of modern immunity law of international organizations were identified. There are at least six salient elements in this early thinking about the immunity of international organizations. First: this early general discussion was mostly about the privileges and immunities of officials of international organizations, not so much about the privileges and immunities of the organizations themselves.9 Second: the foundation of the privileges and immunities of international officials needed to be articulated. This was discussed by the Institut de Droit International in 1924 in Vienna, on the basis of a report prepared by the members Mineichiro Adatci (Japan) and Charles de Visscher (Belgium). They concluded that this foundation is the need for the organization to exercise its functions in full independence: what they called “un intérêt de fonction”.10 Third: whenever privileges and immunities were given to officials of international organizations, the text simply referred to “diplomatic privileges and 8

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International Institute of Agriculture v. Profili, 26 February 1931, Corte di Cassazione, XXIII Rivista di diritto internazionale (1931) p. 386; English translation from (1929–1930) 5 Annual Digest of Public International Law Cases p. 413. See also J.L. Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 41 American Journal of International Law pp. 828–862, at pp. 846–847. Annuaire de l’Institut de Droit International—session de Vienne—Août 1924 (1925), at p. 3.

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immunities”.11 This is understandable, as the regime of diplomatic privileges and immunities was readily available, well-known and generally accepted. Moreover, it immediately provided these officials with the necessary status and protection to perform their functions.12 However, during the 1920s there was increasing support for the view that the legal status of officials of international organizations is fundamentally different from that of diplomats, and that privileges and immunities for diplomats could not simply be used for them as well. In 1925, the American Journal of International Law published a short article by the renowned Leiden professor of international law Van Vollenhoven, carrying the telling title ‘Diplomatic prerogatives of nondiplomats’.13 Adatci and De Visscher in their report for the Institut observed that, while the foundation of privileges and immunities of diplomats and officials of international organizations is in both cases functional, there is a fundamental difference: diplomats exercise a strictly national function, whereas officials exercise “une fonction d’intérêt international, c’est-à-dire commun aux Membres”.14 Moreover, officials of international organizations would also need protection against their own home country, but many states would refuse to give diplomatic privileges and immunities to their own nationals.15 11

E.g. Art. 7.4 of the Covenant of the League of Nations (“Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities.”) and Art. 19 of the Statute of the Permanent Court of International Justice (“The members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities”). 12 Cf. Hill, supra note 6, who (at p. 100) concludes from the League of Nations experience that, while the functions of international officials in some respects differ from those of diplomatic agents, “it should not be overlooked that the assimilation of League officials to diplomatic agents has had some very real advantages in so far as it has given them the special standing and dignity attached to diplomatic office. … [E]specially in times of political disturbance, it has been of great importance to League officials to be able to claim the status of diplomatic agents and the special protection which that status affords”. 13 C. van Vollenhoven, ‘Diplomatic Prerogatives of Non-Diplomats’ (1925) 19 American Journal of International Law pp. 469–474. 14 Annuaire de l’Institut de Droit International—session de Vienne—Août 1924 (1925), at p. 3. As Secretan wrote in 1935 about the staff of international organizations: “They are the servants, not of any particular state, but of an organism created by all the states associated in a given task; they are, in the fullest sense of the words, agents of the international community”. See J. Secretan, ‘The Independence Granted to Agents of the International Community in their Relations with National Public Authorities’ (1935) 26 British Yearbook of International Law pp. 56–78, at p. 59. 15 Secretan, supra note 14, at p. 65.

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Fourth: during the 1920s and later there has been much debate on the question whether officials of international organizations should enjoy privileges and immunities in all member states of the organization, including their home country.16 In 1924, there was a heated debate about this question in the Institut. De Lapradelle did not want League of Nations officials to have immunity in their home country, and presented a draft resolution, but this draft resolution was rejected.17 At the end of the 1924 session of the Institut, a resolution was adopted that consisted of four articles. According to Article 2, with respect to agents of the League of Nations, member states were not allowed to make any distinction between their own nationals and nationals of other member states. However, in addition, it was also provided that it was desirable that agents of the League would perform their tasks in their home country only when absolutely necessary and with the agreement of their government. This issue of the legal status of agents of international organizations in relation to their home country has always been a difficult one. It is no coincidence that the two cases in which the International Court of Justice (‘ICJ’) was confronted with questions relating to the position of experts of the United Nations on mission are cases involving the home countries of the relevant expert on mission concerned (Mazilu and Cumaraswamy), being Romania and Malaysia respectively.18 Fifth: how to deal with the ‘denial of justice’ problem? This problem was already taken very seriously at that early stage.19 Generally, the answer offered was that the immunity should be waived when it did not serve the interest of

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See, e.g., Annuaire de l’Institut de Droit International—session de Vienne—Août 1924 (1925), in particular at pp. 5–6, 18, 96–106, and 179; Sir Cecil Hurst, ‘Diplomatic Immunities—Modern Developments’ (1929) 10 British Yearbook of International Law pp. 1–13, in particular at pp. 9–10; and Secretan, supra note 14, in particular at pp. 72–78. Annuaire de l’Institut de Droit International—session de Vienne—Août 1924 (1925), at p. 119 (4 votes in favour, 23 against, 2 abstentions). Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, 15 December 1989, International Court of Justice, Advisory Opinion, ICJ Reports 1989, p. 177; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 29 April 1999, International Court of Justice, Advisory Opinion, ICJ Reports 1999, p. 62. See, e.g., A. Hammerskjöld, ‘Les immunités des personnes investies de fonctions internationales’, (1936-II) 56 Recueil des Cours pp. 107–211, at p. 186: “Il y a là sans doute une lacune; et une lacune qui—surtout combinée avec la tendance à confondre immunités diplomatiques et immunités internationals—a beaucoup entravé le développement de cette dernière institution”.

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protecting the organization.20 This was covered by Article 4 of the Resolution adopted by the Institut in 1924. Sixth: in the interbellum period, the question sometimes arose as to whether each international organization should have its own specific rules on privileges and immunities, or whether a general set of rules on the privileges and immunities of international organizations should be developed. This question was discussed most extensively in 1936 by Ake Hammerskjöld, the first Registrar, and subsequently a judge, of the Permanent Court of International Justice. He concluded that a “réglementation générique est dans l’air et que la tendance dominante y est favorable”.21 3

Codifying Immunity Rules of International Organizations

3.1 The 1940s: The United Nations and the Specialized Agencies It is against this background that, during and after the Second World War, new rules were formulated on privileges and immunities for the newly created international organizations, in particular for the United Nations and the specialized agencies.22 These rules were new rules indeed. Previously, it had been agreed that diplomatic privileges and immunities would be applicable. But the overall conclusion of the interbellum period was that the regime of diplomatic privileges and immunities could not simply be transposed onto international organizations and their staff, due to fundamental differences in the nature and function of embassies and international organizations, and of diplomats and the staff of international organizations. Instead, international organizations would need their own, tailor-made regime. Therefore, new rules had to be drafted. Nevertheless, although these were indeed newly drafted rules, they certainly did not come out of blue: they were firmly based on the relevant law, practice and thinking of the 1920s and 1930s. Rules on the immunity of international organizations created during and immediately after the Second World War, and rules on the immunity of their 20 Secretan, supra note 14, at p. 72: “The right to waive immunities, vested in the authority which appoints the agent in question, is a sufficient guarantee that cases of denial of justice will not occur”; see also Annuaire de l’Institut de Droit International—session de Vienne—Août 1924 (1925), at p. 11. 21 Hammerskjöld, supra note 19, at p. 194. 22 See Jenks, supra note 1, in particular at pp. 1–5, and 12–16; see also A.J. Miller, ‘The Privileges and Immunities of the United Nations’, (2009) 6 International Organizations Law Review pp. 7–115 (each with references to further literature).

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officials, were generally laid down in three types of legal instruments. First, the constitutions of these organizations contain a general provision on privileges and immunities: an example is Article 105 of the UN Charter. Secondly, more detailed rules were laid down in the 1946 Convention on the Privileges and Immunities of the United Nations (‘General Convention’) and the 1947 Convention on the Privileges and Immunities of the Specialized Agencies (‘Specialized Agencies Convention’).23 Thirdly, international organizations concluded bilateral agreements with their host states. There are a number of common characteristics in these legal instruments: (1) Often, the constitution of the organization refers to the foundation of these privileges and immunities: that they are necessary for the fulfillment of the functions or the purposes of the organization. In short: ‘functional necessity’. (2) Generally, the immunity of the organization is absolute and unconditional. As stated in Section 2 of the General Convention and in Section 4 of the Specialized Agencies Convention, these organizations enjoy immunity from every form of legal process. (3) A fundamental difference between these legal instruments and the earlier treaties in which privileges and immunities were given to officials of international organizations is that provisions about ‘diplomatic immunity’ have generally been replaced by a specific set of rules adjusted to the specific nature of the organization. (4) Generally, officials of the organization only enjoy immunity for their official acts, not for their private acts. However, the highest officials usually enjoy diplomatic immunity, and therefore also enjoy immunity that covers their private acts. (5) Generally, no distinction is made between officials having the nationality of the host state and other officials. (6) How best to deal with the problem of denial of justice? First of all, the Secretary-General “shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations” (see Section 20 of the General Convention, and Section  22 of the Specialized Agencies Convention). Secondly, if the immunity is not waived, the organization should 23

UN General Convention, opened for signature on 13 February 1946, 1 UNTS p. 15 (entered into force 17 September 1946); Specialized Agencies Convention, opened for signature 21 November 1947, 33 UNTS p. 261 (entered into force 2 December 1948).

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provide an appropriate mode of settlement (see Section 29 of the General Convention, and Section  31 of the Specialized Agencies Convention). Thirdly, it should also provide an appropriate mode of settlement for disputes arising out of contracts or other disputes of a private law character to which the organization is a party (see Section 29 of the General Convention, and Section 31 of the Specialized Agencies Convention). (7) Finally, the idea of a general convention (as discussed by Ake Hammerskjöld in 1936)24 was not implemented in practice, and two separate conventions were adopted. At the same time, the specialized agencies were considered to be sufficiently similar to lay down their standard privileges and immunities in one legal instrument. Some nuance is nevertheless still necessary here: the Specialized Agencies Convention has annexes with some specific modifications for each of the specialized agencies. 3.2 Recent Years: ICC, ASEAN, IRENA The basic rules about the immunity of the United Nations and the specialized agencies, and of persons performing functions for these organizations, have very much become the standard since adoption. The practice and the thinking of the 1920s and 1930s on these issues were crystallized into a set of basic rules that are highly similar across many post-war organizations. But much has changed since the 1940s. The next question is therefore whether this ‘immunity acquis’ has been adjusted over the years. The answer to this question is clear: the immunity rules of the United Nations and of the specialized agencies have not been amended over the years. Moreover, they have been used as the standard when new international organizations were created. To illustrate this point, a brief overview is given below of three more recent multilateral privileges and immunities agreements: the 2002 Privileges and Immunities Agreement of the International Criminal Court (‘ICC Agreement’);25 the 2009 Privileges and Immunities Agreement of the Association of South East Asian Nations (‘ASEAN Agreement’);26 and the 2012 Privileges and Immunities Agreement of the International Renewable Energy Agency (‘IRENA Agreement’).27 24 25 26

See supra note 19. 2271 UNTS p. 3. Available from ASEAN’s website, at: (last visited 23 August 2013). 27 IRENA Doc. A/3/13, available from IRENA’s website, at: (last visited 23 August 2013).

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First, the foundation of privileges and immunities has remained unchanged: functional necessity. This is stated explicitly in the constitutions of the International Criminal Court (‘ICC’) and of the Association of South East Asian Nations (‘ASEAN’), in almost exactly the same words as are used in Article 105(1) of the UN Charter.28 A general provision of this nature is absent in the constitution of the International Renewable Energy Association (‘IRENA’) and in the IRENA Agreement on Privileges and Immunities, but various specific provisions in the latter Agreement clearly demonstrate that functional necessity is the foundation of IRENA’s privileges and immunities.29 Secondly, each of these three organizations enjoys absolute immunity. Literally the same words are used as those in the General Convention and in the Specialized Agencies Convention: they provide for immunity “from every form of legal process, except insofar as in any particular case the organization has expressly waived its immunity”.30 Thirdly, with respect to the immunity of officials and other persons performing functions for these three organizations, the agreements on privileges and immunities of the ICC, ASEAN and IRENA contain provisions that are almost completely identical to those of the agreements of the United Nations and the specialized agencies. Specific provisions deal with representatives of the member states, officials of the organization and experts. The ICC has additional immunity provisions for specific categories of persons that are relevant for its work: counsel and persons assisting defence counsel, witnesses and victims. As far as officials of these organizations are concerned, they all have immunity for words spoken or written and all acts performed by them in their official capacity. In addition, some high officials enjoy diplomatic immunity. In this respect there are differences between the three organizations. In IRENA, only the Director-General (and his spouse and minor children) has diplomatic immunity.31 In ASEAN, the Secretary-General and all Deputy Secretaries-General (and their spouses and minor children) enjoy diplomatic immunity.32 In the case of the ICC, diplomatic immunity is given to the judges, the Prosecutor, the Deputy Prosecutors and the Registrar;33 and in 28

29 30 31 32 33

Art. 48 of the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS p. 3 (entered into force 1 July 2002) (‘ICC Statute’); ASEAN Charter, Art. 17. IRENA Agreement, in particular Sections 15, 21, 25 and 33. ICC Agreement, Art. 6.1; ASEAN Agreement, Art. 3.1; IRENA Agreement, Section 3. IRENA Agreement, Section 20. ASEAN Agreement, Art. 4.4. ICC Agreement, Art. 15.

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addition, on the basis of the headquarters agreement, all ICC staff of P-5 level and above (and their family members) enjoy diplomatic immunity in the host state.34 Fourthly, in the UN General Convention and the Specialized Agencies Convention, privileges and immunities are given to all officials of the organization, including those officials who are nationals of the country in which they perform activities for the organization. On this issue, IRENA has similar rules, but those of the ICC and ASEAN are different. The ICC Agreement offers the possibility to state parties to issue a declaration in which certain specific privileges and immunities are excluded for nationals.35 So far, of the 72 parties to this agreement, 24 have made such a declaration.36 ASEAN has rules that are exceptional: the privileges and immunities for ASEAN staff do not apply to “persons who are nationals of or permanently resident in the granting Member State”.37 However, an exception is made for the immunity from legal process for official words and acts: this immunity also applies to these nationals and permanent residents.38 Fifthly, the ‘denial of justice problem’. As mentioned before, the United Nations and specialized agencies regime has three components to address this: waiver provisions, an appropriate mode of settlement if no waiver is given, and an appropriate mode of settlement for disputes arising out of contracts or other disputes of a private law character to which the organization is a party. The ICC and IRENA have a similar regime. ASEAN has similar provisions only regarding the waiver of immunity; rules are lacking for situations in which no waiver is given and for contract and private law disputes. Although this is, of course, far from a full overview of all immunity provisions of all existing international organizations, it illustrates that the ‘immunity acquis’ of the 1940s is still followed today when new international organizations are established. Its fundamentals have not been changed. Nowadays, as in the past, this ‘immunity acquis’ belongs to the standard provisions of international organizations. With respect to the ICC, ASEAN and IRENA, the two only deviations are the rules on nationals and the more limited alternative dispute 34

35 36

37 38

Art. 18.2 of the Headquarters Agreement between the International Criminal Court and the Host State, Doc. ICC‐BD/04‐01‐08 (entered into force 1 March 2008) (‘ICC Headquarters Agreement’). ICC Agreement, Art. 23. See the UN Treaty Collection website for these details, which is available at: (last visited 23 August 2013). ASEAN Agreement, Art. 4.5. Ibid.

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settlement regime of ASEAN. However, overall, the idea that international organizations must be independent and that their activities should be untouchable by national courts without their consent is based on solid grounds and consistent practice. 4

Is There a Need to Update the Current Regime?

The next question is: what are the implications of the conclusion that the ‘immunity acquis’ largely continues to apply? Should this be the end of the debate, or is it only the beginning? This conclusion should certainly not induce a wholly new debate on the immunity and accountability of international organizations. It is generally accepted that international organizations and persons working for them need strong immunity rules in order to be able to perform their functions. In 1944, McKinnon Wood gave three reasons why international organizations need immunity: the danger of prejudice or bad faith in national courts, the need for protection against baseless actions brought from improper motives, and the undesirability of national courts determining the legal effects of acts of the organization, possibly in diverging directions.39 This reasoning still largely rings true today. The existing ‘immunity acquis’ was developed in the 1920s and 1930s. It was codified in the 1940s for the United Nations and the specialized agencies. It remained unchanged subsequently, and was more or less copied when new organizations were created. The existing law and practice support the conclusion that this is the longstanding standard, the default rule. At the same time, this is not the definite conclusion of the debate. Practice is evolving, in particular under the influence of the current climate of accountability and, more specifically, the application of human rights.40 Nowadays there is strong pressure to ensure that public authorities are accountable, at the local, regional and national level, and this does not stop when international organizations come into play. With respect to the application of human rights, the 1999 Waite and Kennedy case has demonstrated what implications a judgment of the European Court of Human Rights may 39

40

H. McKinnon Wood, ‘Legal Relations between Individuals and a World Organization of States’ (1945) 30 The Grotius Society, Transactions for the year 1944—Problems of Peace and War pp. 143–144. See I. Seidl-Hohenveldern, ‘International Immunity Law and Human Rights’, in H.-W. Arndt et al. (eds.), Völkerrecht und Deutsches Recht—Festschrift für Walter Rudolf (Verlag C.H. Beck, München, 2001) pp. 95–104, in particular at p. 102 et seq.

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have, even if an international organization has absolute immunity.41 In practice, claims have been brought against international organizations—such as those brought against the United Nations by the Haiti victims of cholera spread by United Nations peacekeepers—and cases have been brought before national courts, in particular a number of employment cases. In practice, international organizations are nowadays often criticized. They are often seen as wrong-doers, no longer as good-doers. Sometimes they are almost portrayed as untouchables, not in the sense of their immunity, but in the more derogatory sense, as outcasts of a modern international society. There is a need for more nuance in such debates, as there is a great variety of international organizations. Only in a few cases do their activities directly affect individuals and potentially result in violations of human rights (leaving aside internal matters such as staff disputes). But such cases must be taken seriously. The need for nuance is, in fact, exactly what the Institut de Droit International concluded in a resolution adopted during its 1957 Session in Amsterdam. The background to this resolution is as follows. In 1952, Wilhelm Wengler had presented a report to the Institut on the topic ‘Judicial redress against the decisions of international organs’.42 Wengler took a very principled, ‘top down’ approach. He proposed that states and international organizations examine, for each international organ, whether it would be necessary to introduce the possibility of judicial review of their decisions. Considerable discussion took place on this report, and Wilfred Jenks in particular had strong objections against the initial ideas presented by Wengler.43 Jenks took a more practical, ‘bottom up’ approach. In his comments, he stated: In the majority of cases, international organizations have not too much but too little authority, and it seems unwise at this stage of their development to impair such authority as they have unless it is shown that, as a practical matter, the needs of justice clearly require such safeguards against the abuse of their authority.44

41

On this issue, see further the contributions made by Eric De Brabandere, Thomas Henquet and August Reinisch to this volume. 42 44 Annuaire de l’Institut de Droit International—Session de Sienne—Avril 1952 (Tome I), at pp. 224–291. 43 45 Annuaire de l’Institut de Droit International—Session d’Aix-en-Provence—Avril/Mai 1954 (Tome I), at pp. 302–308. 44 Ibid., at p. 303.

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At the end of the day, in 1957, the Institut adopted its Resolution on the matter, in which it stated that it was of the opinion that the opportunity and the possibilities of establishing judicial redress against the decisions of international organs depend essentially on the nature, structure and powers of the organs or organizations under consideration. In consequence, the establishment of this control, the means of redress which it implies and the effects which would follow therefrom do not appear realizable, in the present state of affairs, except through the conclusion of treaties or other instruments particularly suited to each organ or organization.45 In the resolution, the Institut also expressed the wish that, as a minimum for every particular decision of an international organ or organization which involves private rights or interests, there be provided appropriate procedures for settling by judicial or arbitral methods juridical differences which might arise from such a decision.46 Since this was written, 57 years ago, these discussions have continued. Inter­ national organizations have expanded their activities. Cases against international organizations have been brought before national courts, and the organizations concerned have often claimed immunity. Other contributions to this volume will analyze how the national courts of five selected states have dealt with such cases. In addition, in a few cases international organizations have created judicial or quasi-judicial procedures that could be used to review or scrutinize certain of their decisions. In 1961, Jenks forecast that it is a reasonable surmise that further developments in international procedures of judicial redress against decisions of international organizations may play a significant part in resolving some of the problems presented by international immunities.47 Today, this may still be true. But the climate today, the Zeitgeist, is different. There is much skepticism about the creation of new international organizations, 45 47 Annuaire de l’Institut de Droit International—Session d’Amsterdam—Septembre 1957 (Tome II), at p. 489. 46 Ibid., at p. 490. 47 Jenks, supra note 1, at p. 165.

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the development of new international procedures, and generally, all kinds of institutional or even supranational ‘acrobatics’. The current Zeitgeist will also affect the debate on the question whether it would be useful or even necessary for the International Law Commission (‘ILC’) to initiate drafting a general agreement or articles on the immunity of international organizations. This is not a new issue. As mentioned above, in 1936 Ake Hammerskjöld wrote in relation to immunities of international civil servants that a “réglementation générique est dans l’air et que la tendance dominante y est favorable”.48 In 1971, David Michaels published an overview of the existing privileges and immunities of international civil servants, and made a specific proposal for a general statute on international privileges and immunities.49 The Specialized Agencies Convention has demonstrated that it is feasible in practice to draft immunity rules that apply to more than one single organization and its staff. On various occasions, the ILC has discussed this question.50 Most recently, in 2006, a note was prepared on this by ILC member Giorgio Gaja, now a judge of the ICJ. In this note, Gaja observed that the adoption in 2004 of the UN Convention on Jurisdictional Immunities of States and Their Property “gives the opportunity for the ILC to reconsider whether it should undertake a study of the jurisdictional immunity of international organizations”.51 However, so far the ILC has not put this topic on its agenda. The conclusion of this introductory contribution therefore is that the existing standard immunity rules should remain as they are. It is the implementation of these rules that sometimes should be improved, particularly in cases in which the activities of international organizations directly harm or may harm individuals, and directly violate or may violate their human rights. The need for better implementation must be taken seriously, otherwise the result may be a negative image of the organization and a lack of legitimacy for its activities. At the end of the day, this may make it more difficult for the organization to perform its functions. So, ultimately, ‘functional necessity’ is not only the raison d’etre of the immunity rules of international organizations, but also the rationale of an adequate accountability regime.

48 Hammerskjöld, supra note 19, at p. 194. 49 D.B. Michaels, International Privileges and Immunities: A Case for a Universal Statute (Martinus Nijhoff Publishers, The Hague, 1971), in particular at pp. 166–171. 50 See further the contribution by Johan Lammers to this volume. 51 International Law Commission, Annual Report (2006), UN Doc. A/61/10, at 455. See further the contribution by Philippa Webb to this volume.

chapter 2

Immunity of International Organizations: The Work of the International Law Commission Johan G. Lammers Abstract In December 1958, the General Assembly invited the International Law Commission to consider the question of relations between states and intergovernmental international organizations after undertaking a study of diplomatic intercourse and immunities, consular intercourse and immunities and ad hoc diplomacy. This paper presents a brief overview of the work of the ILC over a period of 30 years, which was led by two Special Rapporteurs: Abdullah El-Erian (1962–1979); and Leonardo Díaz González (1979–1992). In 1992, the ILC decided to discontinue its work on this topic: this paper will outline the main reasons given by the ILC for this decision, and draw some conclusions from the work of the ILC in this area.

Keywords International Law Commission – status – privileges and immunities of international organizations

1 Introduction This contribution will give a brief overview of the work of the International Law Commission (‘ILC’ or ‘Commission’) related to the immunity of international organizations. This work was carried out over a period of 30 years (1962–1992). Two Special Rapporteurs prepared a number of reports for the ILC on this topic: Abdullah El-Erian (1962–1979); and Leonardo Díaz González (1979–1992). Sections 2 and 3 will discuss the results of the work of these two Special Rapporteurs, as well as the relevant discussions within the ILC and the General Assembly of the United Nations (‘General Assembly’). In 1992, the ILC decided to discontinue its work on this topic. Section 4 will indicate the main reasons given by the Commission for this decision. Some conclusions will be drawn in Section 5.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004296060_003

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The Beginning: Special Rapporteur El-Erian and the ILC

In December 1958, the General Assembly invited the ILC to consider the question of relations between states and intergovernmental international organizations “at the appropriate time, after study of diplomatic intercourse and immunities, consular intercourse and immunities and ad hoc diplomacy has been completed by the United Nations”.1 The ‘appropriate time’ had apparently come in 1962, when the ILC decided to place the topic on its agenda for its next session in 1963, and appointed Abdullah El-Erian of Egypt as Special Rapporteur (‘SR’). In July 1966, SR El-Erian suggested to the Commission that it should divide the subject into two parts, and that it should concentrate its work first on the status, privileges and immunities of representatives of states to international organizations. The second part of the subject, namely, the status, privileges and immunities of international organizations, should be deferred to a later stage. SR El-Erian’s suggestion was accepted, and the Commission concentrated on the first part of the topic. This lead to the adoption in 1971 of draft articles: these were referred by the General Assembly to a diplomatic conference in Vienna, which in turn adopted the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.2 In 1976, the Commission then turned to the remaining second part of the topic.3 In June 1977, SR El-Erian submitted his first, preliminary report on  the  topic, which was discussed by the Commission in the same year.4 Discus­sions in both the Commission and the Sixth Committee of the General Assembly revealed general agreement on the desirability of the Commis­ sion’s study of the second part of the topic. Only a few countries in the Sixth Committee questioned the usefulness, or expressed doubts about the desirability, of work on the topic (being Israel, Spain, and the United States). Blessing to the topic was given by the General Assembly in its Resolution 32/151 of December 1977. 1 ‘Relations between States and inter-governmental organizations’, General Assembly Resolution 1289 (XIII) (12 December 1958). 2 Opened for signature 14 March 1975, UN Doc. A/CONF.67/16 (not yet in force). 3 See, regarding the work of the ILC on the second part of the topic: H.F. Bekker, ‘The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: An Assessment’ (1993) 6 Leiden Journal of International Law pp. 3–16. 4 Abdullah El-Erian, Special Rapporteur, Preliminary report on the second part of the topic of relations between States and international organizations, 24 June 1977, UN Doc. A/CN.4/304.

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In order to assist the SR and the Commission, the United Nations Secretariat (‘UN Secretariat’) had already collected materials on its own practice, and in 1965 had sent a questionnaire to the legal advisers of the specialized agencies and the International Atomic Energy Agency (‘IAEA’) to collect information about their practices. The replies to this questionnaire formed the basis of a study by the UN Secretariat in 1967 entitled “The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities”.5 In 1978, a second questionnaire was sent by the Legal Counsel of the United Nations asking the specialized agencies and the IAEA to provide additional information, eventually leading in May–July 1985 to a supplementary study prepared by the UN Secretariat.6 In July 1978, the SR submitted his second report to the Commission in which he, inter alia, retreated from his earlier position to deal only with international organizations of a universal character (i.e., the United Nations system), and pleaded to include all international organizations, whether of a universal or of a regional character, in the study.7 This approach was accepted by the Commission. 3

Continuation: Special Rapporteur Díaz González and the ILC

As SR El-Erian was elected to the International Court of Justice (‘ICJ’) and had to resign from the ILC, the Commission appointed Leonardo Díaz González of Venezuela in 1979 to succeed him as SR. The Commission was, however, unable to discuss the topic during a period of four years (1979–1982), during which time it gave priority to other topics. It resumed its work on the topic only in 1983. In that year, the new SR submitted a further preliminary report giving a concise history of the work done so far by the Commis­sion, and offering an opportunity to the Commission in its enlarged membership—and especially to its new members—to express their views on the topic.8

5 UN Doc. A/CN.4/L.118 and Add. 1–2. 6 UN Doc. A/CN.4/L.383 and Add. 1–3. 7 Abdullah El-Erian, Special Rapporteur, Second report on the second part of the topic of relations between States and international organizations, 18 May and 13 July 1978, UN Doc. A/CN.4/311 and Add. 1. 8 Leonardo Diáz-González, Special Rapporteur, Preliminary report on relations between States and international organizations (second part of the topic), 9 May 1983, UN Doc. A/CN.4/370.

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A second report of the SR dealing mainly with the notion of an international organization and the legal capacity of international organizations was discussed by the Commission during a few days in July 1985.9 Representatives of United Nations member states in the Sixth Committee of the General Assembly expressed again, with few exceptions (Australia, United Kingdom, and New Zealand), appreciation of the Commission’s continuation of the work on the topic. In May 1986, the SR submitted his third report,10 but the Commission was unfortunately unable, due to lack of time, to consider the topic during its session in 1986. At the request of the Commission, the SR had submitted in his third report an outline of the subject matter to be covered in the draft articles he intended to prepare on the topic. As far as the privileges and immunities of international organizations were concerned, the schematic outline consisted of three sections: Section I:

Privileges and immunities of the organization, subdivided into two categories: A. Non-fiscal privileges and immunities; and B. Financial and fiscal privileges; Section II: Privileges and immunities of officials; and Section III: Privileges and immunities of experts on mission for, and of persons having official business with, the organization. In the meantime, a publication prepared by the UN Secretariat had become available which contained the replies received from regional organizations to a questionnaire sent by the Legal Counsel of the United Nations in January 1984.11 After having discussed the third report of the SR at its session in June/July 1987, the SR was again asked by the Commission to continue his study of the topic. The General Assembly recommended in 1987 and 1988 again that the Commission continue its work on the topic.12 In his fourth report, submitted in 1989, the SR proposed 11 draft articles (Articles 1 to 11) dealing with general provisions, legal personality, and property, 9

Second report on relations between States and international organizations (second part of the topic), Leonardo Díaz-González, Special Rapporteur, 10 May and 28 June 1985, UN Doc. A/CN.4/391 and Add. 1. 10 Third Report on relations between States and international organizations (second part of the topic), Leonardo Díaz-González, Special Rapporteur, 9 May 1986, UN Doc. A/CN.4/401. 11 ST/LEG/17. 12 General Assembly Resolution 42/156 (‘Report of the International Law Commission’), 7 December 1987; and General Assembly Resolution 43/169 (‘Report of the International Law Commission’), 9 December 1988.

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funds and assets.13 Due to lack of time the Commission was, however, unable to discuss the topic. However, it did allow the SR at one meeting (the Commission’s 2133rd meeting), held on 7 July 1989, to introduce his report. In relation to the scope of the draft articles, it became clear that in conformity with the wish of the Sixth Committee they were only to apply to “international [intergovernmental] organizations of a universal character” (Articles 1(a) and 2(1)), which were defined as “the United Nations, the specialized agencies, the International Atomic Energy Agency and any similar organization whose membership and responsibilities are of a world-wide character” (Article 1(c)). Draft Articles 3 and 4 dealt with the relationship between the articles and the relevant rules of the international organization or other international agreements, and draft Articles 5 and 6 with the legal personality and capacity of an international organization, including the capacity to conclude treaties. With respect to the issue of the immunity of international organizations, the draft Articles 7 to 11 proposed by the SR in his fourth report, which deal with the privileges and immunities of international organizations, are of particular interest. They concerned: (1) the immunity of international organizations, their property, funds and assets, wherever located and by whomsoever held, from every form of legal process, except in the case of an express waiver which, however, should not extend to any measure of execution or coercion (Article 7); (2) the inviolability of the premises of the international organizations “used solely for the performance of their official functions” and the immunity from search, requisition, confiscation, expropriation, and any other form of interference or coercion of their property, funds and assets (Article 8); (3) the proviso that the headquarters of international organizations may not serve as a refuge for persons trying to evade arrest under the legal provisions of the host country, or execution of a judicial decision, or a court order or deportation order (Article 9); and (4) the right of international organizations to hold, and freely transfer, funds, gold or currency of any kind and operate bank accounts in any currency, without being restricted by controls, inspections, regulations or moratoria of any kind (Article 10).

13

Leonardo Díaz-González, Special Rapporteur, Fourth report on relations between States and international organizations (second part of the topic), 24 April 1989, UN Doc. A/CN.4/424.

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The immunity of international organizations from every form of legal process was formulated in absolute terms and without any qualification. This is remarkable, because the SR also stated in his report: Although this exceptional situation may seem excessive, it is expressly limited by the obligation imposed on international organizations to institute a judicial system for the settlement of conflicts or disputes in which they may become involved.14 The SR also acknowledged that the World Bank, the International Development Association, and the International Finance Corporation did not enjoy general immunity from suit, and referred to the exceptions and guarantees mentioned by the European Committee on Legal Co-operation.15 The justification for these and other privileges and immunities mentioned in later reports was, according to the SR, to be found in the need to safeguard the independence of the organizations to the extent necessary for the unhindered performance of their functions and the achievement of their objectives—the ne impediatur officia principle—and the principle of equality among the member states of the organizations, which prohibits any member state from deriving unwarranted fiscal advantages from the funds placed at the disposal of the organizations. Being unable to enjoy the protection conferred by territorial sovereignty, as states could, international organizations had as their sole protection the immunities granted to them. The SR also mentioned a state versus international community interest argument as a further justification: The ample immunity afforded to [the organizations] was fully justified, in contrast to the increasingly restricted immunity of States, for the good reason that States were political entities pursuing their own interests, whereas international organizations were service agencies acting on behalf of all their member States.16 The SR was aware of the fact that any norms to be elaborated in the draft articles necessarily had to be of a general character and had to be capable of being supplemented or modified for each particular international organization, taking into account its aims and specific functions. It is true that draft Article 4(b) 14 15 16

Ibid., para. 59. Ibid., paras. 71, 111. Report of the International Law Commission on the work of its forty-first session, 2 May–21 July 1989, UN Doc. A/44/10, p. 136.

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provided that the draft articles “shall not preclude the conclusion of other international agreements regarding the privileges and immunities of international organizations of a universal character”. However, if the draft articles were to become part of an international convention, states parties to it would in principle be bound by the absolute and unqualified provisions proposed by the SR, unless they or the international organization concerned were to accept by mutual agreement any modification to or limitation of those absolute and unqualified provisions. The 11 draft articles proposed in the fourth report of the SR were discussed by the Commission in July 1990. Due to a lack of time, a fifth report could not be introduced by the SR or considered by the Commission.17 During the discussion, only one member disputed the need to undertake the codification of the subject matter, which in his opinion was already adequately regulated by various instruments already in force, such as conventions on privileges and immunities and headquarters agreements. Some members spoke in favour of the absolute immunity of the property, funds and assets of international organizations, while some other members expressed doubts about the need for absolute immunity from jurisdiction for all international organizations, in light of the specificity of their functions. After the discussion, the Commission decided to refer the 11 draft articles to the Drafting Committee. It cannot be said that the SR did not seriously and arduously pursue his mandate. In his fifth report18 and sixth report,19 submitted in 1990 and 1991 respectively, he proposed 11 further draft articles (Articles 12–22). Draft Article 12 declared the archives of international organizations, and in general all documents belonging to or held by them, to be inviolable. Draft Articles 13 to 17 related to the publications and communications facilities accorded to international organizations. International organizations were to enjoy the free circulation and distribution of their publications and public information material necessary for their activities (Article 13). International organizations were to enjoy for their official communications treatment no less favourable than that which was accorded by the host state to any other state, including the latter’s diplomatic missions. The installation and use of a wireless transmitter remained, however, subject to the consent of the host 17

18 19

UN Doc. A/CN.4/432, reissued as (Consolidated) Fifth report on relations between States and international organizations (second part of the topic), Leonardo Díaz-González, Special Rapporteur, 7 May 1991, UN Doc. A/CN.4/438. Reissued as UN Doc. A/CN.4/438: see supra note 17. Sixth report on relations between States and international organizations (second part of the topic), Leonardo Díaz-González, Special Rapporteur, 29 May 1991, UN Doc. A/CN.4/439.

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state (Article 14). The official correspondence and other official communications of the organization were to be inviolable (Article 15). International organizations were to have the right to use codes and to dispatch and receive their official communications by courier or in sealed bags, which should have the same immunities and privileges as diplomatic couriers and bags under the relevant multilateral conventions (Article 16). Draft Article 17 provided, however, that none of “the above provisions” affected the right of each state to adopt necessary precautions and appropriate measures in the interest of its security. Various members of the Commission considered this provision to be too much in favour of the interests of states, and believed that it had to be replaced by a more balanced provision. Draft Articles 18–21 pertained to fiscal immunities and exemptions from customs duties enjoyed by international organizations. In view of the principle of equality between states, a state could not levy taxes on other states through an international organization, and the host state must not derive unjustified fiscal benefit from the presence of an international organization in its territory. Draft Article 22 provided that for the purposes of the “foregoing articles” the terms “official activity” or “official use” were to be interpreted as “those relating to the accomplishment of the purposes of the international organization”. It was not entirely clear to which “foregoing articles” draft Article 22 actually referred: that is, whether it intended to refer to all foregoing articles, or only to some of them. In fact, the terms “official activity” and “official use” appeared only in a few of the articles. Moreover, the articles involving “official activity” or “official use” apparently granted immunity for activities or matters only relating to the accomplishment of the purposes of an international organization. It therefore seems that, in those articles, a less strict approach for the granting of immunity was followed than was required by the SR in his fourth report when he stated “that the right approach is to consider what degree of immunity from legal process ought to be granted to a given international organization in the light of its functional requirements”, and that “those functional requirements must be one of the main criteria, if not the only one, used in determining the extent and range of the privileges and immunities that are to be accorded to a given organization. The independence of the organization will thus be safeguarded to the extent necessary for it to perform its functions and accomplish its objectives” (paras. 26–27) (emphasis added). Draft Articles 18–22 completed the work on Section I.A and B of the schematic outline concerning privileges and immunities of international organizations

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adopted by the Commission, leaving still to be considered the matters referred to in Sections II and III of the outline, which concerned the privileges and immunities of individual officials and of experts on mission for, or persons having official business with, the organization. 4 Discontinuation The Commission discussed the fifth and sixth reports during a few days in June/July 1991, and thereafter referred the draft Articles 12 to 22 to the Drafting Committee. Work on Sections II and III would, however, never start. In July 1992, the Commission decided not to pursue consideration of the topic further, unless the General Assembly decided otherwise, which it did not (see General Assembly Resolution 47/33, 25 November 1992). The reasons given for the decision of the Commission were various. The Commission had noticed that states had been slow to ratify the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, for which the draft articles of the first part of the topic (being Relations between States and International Organizations) had provided the basis. There was also no sign of an increased acceptance of the convention by states. Doubts had therefore arisen as to the advisability of continuing the work on the second part of the topic. Indeed, at the time only some 25 countries had become a party to the Vienna Convention. At present, the number is only 34, still one short for its entry into force. Moreover, the second part of the topic already seemed to a large extent to be covered by existing agreements. The Commission rightly acknowledged that it had not given very active consideration to the topic. It was true that all of the 22 articles proposed by the second SR had been referred to the Drafting Committee, but the Drafting Committee had not taken any action on them. Neither in the Commission nor in the Sixth Committee had there been any call for the topic to be more actively considered. Finally, the Commission would be fully occupied in the next few years with a number of other topics, such as state responsibility, the draft Code of Crimes against the Peace and Security of Mankind, the law of the non-navigational uses of international watercourses, the international liability for injurious consequences arising out of acts not prohibited by international law and the jurisdictional immunities of states and their property.

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Concluding Observations

Should we deplore the decision taken by the Commission in July 1992 not to continue with the work on the topic? I doubt it. Certainly at the time of the decision the Commission had more important work to be done. Mr. Giorgio Gaja, in his capacity as a member of the ILC, recommended almost 15 years later, in 2006,20 that the Commission should reconsider whether it should undertake a study of the jurisdictional immunity of international organizations now that the General Assembly had adopted the UN Convention on Jurisdictional Immunities of States and Their Property.21 However, as already noted, the draft articles developed by SR Díaz González concerned only international organizations of a universal character, whose immunities and privileges were already regulated in constituent instruments, headquarters agreements and other conventions. It may therefore be wondered whether the relatively few states that were not already bound by such instruments, agreements or conventions would be much motivated to become a party to a new general convention dealing with the immunities and privileges of international organizations of a universal character. Moreover, if such an organization would wish to undertake activities in the territory of a state not already bound by such instruments, agreements or conventions, would it not then be possible and practicable for the international organization to enter into an ad hoc agreement with that state concerning its immunities and privileges? Gaja states that the provisions in many constituent instruments of international organizations, protocols on privileges and immunities or headquarters agreements are often very general. But, one may ask, is it to be expected that the provisions in a new general convention would be less general, and would they not be even more general? A further question to be answered is whether the scope of such a new general convention should be limited to international organizations of a universal character, as in the case of the draft articles developed by SR Díaz González. The immunities in the draft articles developed by SR Díaz González were, moreover, of an absolute character. In the light of “the uneasy questions raised in a climate in which activities of international organizations are increasingly under fire” as stated in the introduction to this volume, it may be wondered whether the draft articles would have met the requirements and necessities of 20 21

Report of the International Law Commission Fifty-eighth session, 1 May–9 June and 3 July–11 August 2006, UN Doc. A/61/10, pp. 455–463. General Assembly Resolution 59/38, 2 December 2008.

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our time. Gaja was certainly not unaware of “these uneasy questions”, in particular the risk of a denial of justice. Subsequently, the question of whether to re-introduce the topic of the “Jurisdictional Immunities of International Organizations” into the agenda of the ILC was discussed in the Sixth Committee in the autumn of 2006. Although “support was expressed for inclusion of the topic…, as it was a topic where the practice of States required harmonization” and “[n]ational courts needed greater legal certainty when ruling on the immunity of international organizations…, [o]ther speakers expressed doubts about the necessity of considering the topic”.22 UN General Assembly Resolution 61/34 (2006) on the Report of the International Law Commission on the work of its fifty-eighth session did not ask the Commission to deal with the topic of the Jurisdictional Immunity of International Organizations. It remains to be seen whether the ILC will in the future return to this issue of the immunity of international organizations, following its earlier work on this issue that started more than 50 years ago. 22

Topical summary of the discussion held in the Sixth Committee of the General Assembly during its sixty-first session prepared by the Secretariat, UN Doc. A/CN.4/577, para. 126(c).

chapter 3

Do International Organizations Enjoy Immunity under Customary International Law? Michael Wood* Abstract The present chapter considers whether there is “a general practice accepted as law” establishing rules of customary international law on the immunity of international organizations from the jurisdiction of domestic courts. Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. This contribution sketches the historical development of the immunity of international organizations since the nineteenth century, describes various approaches that have been suggested to this question, and sets out such practice as there is and academic consideration of that practice. It then considers whether practice has to date generated any rules of customary international law regarding immunities, and finally suggests some conclusions.

Keywords immunities of international organizations – customary law – general practice

1 Introduction The present chapter considers whether there is “a general practice accepted as law”1 establishing rules of customary international law on the immunity * I am grateful to Michael Currie and Omri Sender for their valuable assistance in preparing this contribution. 1 Article 38.1(b), Statute of the International Court of Justice (‘ICJ Statute’). For the work of the International Law Commission on the topic ‘Identification of customary international law’, see Report of the International Law Commission on the work of its sixty-fifth session (2013), UN

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004296060_004

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of international organizations from the jurisdiction of domestic courts.2 It concerns only the immunity of the international organizations themselves, and not questions such as legal personality and legal capacities, or the immunities of international officials or of representatives of states to international organizations. Nor does it discuss a crucial second order issue on the scope of any immunity that might exist under customary international law: whether, for example, it would be absolute, or limited on a functional basis or by exceptions.3 Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. Such domestic case-law as does exist is largely inconclusive, and not carefully reasoned, and at the same time reveals a range of contrasting views. The International Court of Justice has not spoken on the matter; and the sparse writings are likewise inconsistent and inconclusive. The immunity of international organizations is often covered by specific treaty provisions applicable in the relations between particular organizations and the states concerned, or by municipal law, whether in implementation of such treaty obligations or otherwise. So one might expect there to be Doc. A/68/10, Chapter VII, as well as the Secretariat memorandum (UN Doc. A/CN.4/659), the first report of the Special Rapporteur (UN Doc. A/CN.4/663), the plenary debate between 17 and 25 July 2013 (UN Doc. A/CN.4/SR. 3181–3186), and the UN General Assembly’s Sixth Committee debate on the report of the ILC between 28 October and 5 November 2013 (UN Doc. A/C.6/68/SR. 17–23). 2 It is occasionally suggested that the immunity of international organizations may derive from general principles of law: see, e.g., P. Szasz, ‘International organizations, privileges and immunities,’ in: R. Bernhardt, Encyclopedia of Public International Law, Vol. II, p. 1325, at p. 1328. The later Max Planck Encyclopedia, while referring at one point to the view that there is a possible ‘general principle of international law’, discusses the matter as a question of customary international law: M. Möldner, ‘International Organizations or Institutions, Privileges and Immunities’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012). It is difficult to see how a ‘general principle of law’ within the meaning of Art. 38(1)(c) of the ICJ Statute or a ‘general principle of international law’ (if that means anything other than a rule of customary international law) requiring the granting of immunity could have emerged; such a rule could hardly be described as common to or inherent in all legal systems. 3 See, e.g., the Waite and Kennedy line of cases, in which the European Court of Human Rights found that by according immunity to an international organization a state did not violate Art. 6 of the European Convention but drew attention to the importance of the availability of an alternative remedy. For further discussion of this line of cases, see the contributions by Eric De Brabandere and August Reinisch to this compilation.

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relatively little occasion to enquire into questions of customary international law, except perhaps in non-member states.4 Yet the matter does arise from time to time. While there are (as of September 2013) 159 parties to the 1946 Convention on the Privileges and Immunities of the United Nations (the ‘General Convention’), 34 members of the United Nations are not parties In the case of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies (the ‘Specialized Agencies Convention’), there are 123 parties, not all of which have undertaken to apply the Convention’s provisions in respect of all the specialized agencies of which they are members. The 1959 Agreement on the Privileges and Immunities of the International Atomic Energy Agency has 84 parties out of the 158 members of the Agency. Even though non-parties to the relevant multilateral agreement will in some cases have signed bilateral agreements on immunities with the organizations concerned, questions of customary international law may thus be more important than appears at first sight. According to Professor Gaja, in a 2006 syllabus prepared for the International Law Commission: It is true that many constituent instruments of international organizations, protocols on privileges and immunities or headquarters agreements provide for immunity. However, those provisions are often very general. Moreover, the question of immunity arises not infrequently before courts of States which are not bound by any treaty in this regard.5 Rules of customary international law on the immunity of international organizations could be important for at least four reasons. First, to determine questions of immunity in the absence of an applicable treaty provision. Second, to interpret a treaty provision in accordance with Article 31(3) of the Vienna Convention on the Law of Treaties. (There is not much scope for this when the terms of the treaty are clear. But this could be important in other cases: for example, where Article 105 of the United Nations Charter6 but no other more 4 In 1992, the International Law Commission said, when deciding not to continue working on the second part of its topic on relations between states and international organizations (status, privileges and immunities of international organizations, their officials, experts, etc.), that it “was a matter which seemed to be covered, to a large extent, by existing agreements”: Yearbook of the International Law Commission 1992, Vol. II, Part Two, para. 360. 5  G. Gaja, “Jurisdictional immunity of international organizations”, Report of the Commission to the General Assembly on the work of its fifty-eighth session, Annex II: Yearbook of the International Law Commission 2006, Vol. II, Part Two, pp. 201–205, para. 3. 6  Article 105 reads:

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specific provision binds a member of the United Nations.) Third, to interpret and apply domestic law on immunities of international organizations. And fourth, if relevant customary international law rules had developed since a particular treaty was concluded, it might be argued that they had modified the treaty provision or coexisted with it.7 The present contribution is principally concerned with the first of these issues. This chapter proceeds as follows: Section 2 sketches the historical development of the immunity of international organizations since the nineteenth century. Section 3 describes various approaches that have been suggested to the matter, and Section 4 sets out such practice as there is. Section 5 looks at the writings on the subject. Section 6 considers whether practice, including treaty practice, has to date generated rules of customary international law. And Section 7 suggests some conclusions. 2

Historical Development

‘Public international unions’ or ‘administrative unions’ first appeared upon the scene in the nineteenth century.8 The Central Commission for the Navigation on the Rhine, established by Article 25 of the Final Act of the Congress of Vienna (1815) and based in Strasbourg, is generally regarded as the earliest. According to Kunz, [p]rior to 1920 granting of diplomatic privileges and immunities to international organizations was clearly an exception, based on particular

“1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization. 3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.” 7 Although not included in the Vienna Convention on the Law of Treaties, the modification of a treaty by means of customary law was envisaged by the International Law Commission in Article 68(c) of its 1964 draft articles: Yearbook of the International Law Commission 1964, Vol. II, p. 198. 8 P. Sands & P. Klein, Bowett’s Law of International Institutions (6th ed.) (2009), pp. 5–8, paras. 1.011–1.017.

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t­reaties or statutes…. This remained in principle the law also during the period from 1920 to 1939, but the granting of such privileges and immunities by treaty or statute was greatly extended.9 The few examples given by Kunz for the period before 1920 seem to concern the privileges and immunities of individuals who were members of the bodies concerned. One early case, from 1925, related to representatives of members of the League of Nations.10 Little consideration seems to have been given to an organization’s privileges and immunities, even during the period 1920–1945,11 notwithstanding the establishment in Geneva of the International Labour Organization and the League of Nations.12 An agreement with Switzerland, the League’s host state, the so-called modus vivendi, stipulated that the League possessed international personality and capacity and that it could not “in principle, according to the rules of international law, be sued before the Swiss Courts without its consent.”13 The years 1945 and 1946 marked a crucial moment in the development of the privileges and immunities of international organizations (as of so much else), encapsulated by Jenks as follows: Historically, the present content of international immunities derives from the experience of the League of Nations as developed by the International Labour Organization when submitted to the test of 9 

J. Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 41 American Journal of International Law pp. 828–862, at pp. 829–830, who lists an extensive literature from this period in his footnote 13. See, e.g., J. Secretan, ‘The Independence Granted to Agents of the International Community in their Relations with National Public Authorities’ (1935) 16 British Yearbook of International Law pp. 59–65; M. Hill, Immunities and Privileges of International Officials—The Experience of the League of Nations (1947). 10  Représentation permanente des Etats membres auprès de la Société des Nations à Genève, Revue de Droit International (Sottile), April–June 1925, pp. 150–152. See also Profili and Chemidlin, referred to in Mendaro, below note 78. 11 Kunz writes: “While there are precedents, even dating back prior to 1920, writers of the inter-war period, mostly concerned with the immunities of international functionaries, paid little attention to [the problem of privileges and immunities of the international organizations themselves]”: supra note 9, pp. 846–847. 12  Ibid., pp. 844 and 849. 13  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), Annex 911a, 1422.

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wartime conditions, reformulated in certain respects in the ILO-Canadian wartime arrangements, and subsequently reviewed by the General Assembly of the United Nations at its First Session in 1946. The decisions then taken by the General Assembly have been, subject to appropriate (and perhaps in a few cases less appropriate) modifications in individual cases, the basis of all subsequent instruments.14 In short, when international organizations first came on the scene, in the nineteenth century, it was not thought that they should be treated as enjoying immunity under customary international law as if they were states. It was only later, perhaps beginning in the 1920s, that thought began to be given to the status of newly formed organizations such as the League of Nations and the International Labour Organization. It therefore cannot be said that, in the early days of international organizations, there was practice and opinio juris such as would give rise to a rule of immunity under customary international law. By 1945–1946, it appears to have been widely assumed that the immunity of international organizations depended on that organization having an agreement with the host state, and not to have been considered that immunity might exist as a matter of customary international law.15 State practice on the matter had been sporadic, indeed rare, and inconsistent. For example, a US Diplomatic Note of 7 November 1927 stated that under customary international law, diplomatic privileges and immunities are only conferred upon a well-defined class of persons, namely, those who are sent by one state to another on diplomatic missions. Officials of the League of Nations are not as such considered by this 14 Jenks, International Immunities (1961), p. 12. The significance of the Covenant and Charter is clear from the dedication of Jenks’ seminal book: “To Sir Cecil Hurst and the memory of Sir William Malkin who, when drafting the Covenant of the League of Nations and the Charter of the United Nations, laid the foundation of international immunities.” On 3–4 July 1945, when returning from San Francisco via Montreal, Malkin (UK Foreign Office Legal Adviser) was killed when his plane crashed into the Atlantic. Jenks’ reference to ‘the ILO-Canadian wartime arrangements’ refers to the arrangements made for privileges and immunities when the International Labour Organization largely relocated to Montreal between 1940 and 1948. 15 Kunz, while advocating a (now unfashionable) uniform approach, nowhere raises the possibility of a customary rule: supra note 9. Jenks apparently does so, but in oblique and speculative terms and only in connection with non-member states (see Jenks, supra note 14, pp. 33–34):

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Government to be entitled while in the United States to such privileges and immunities under generally accepted principles of international law, but only under special provisions of the Covenant of the League which have no force in countries not members of the League.16 Thus, the United States (a non-member) denied immunity to League of Nations’ representatives.17 On the other hand, a British Minister explained to Parliament in 1944 that where a number of governments joined together to create an international organization to fulfil some public purpose, the organization should have the same status, immunities and privileges as the foreign government members thereof enjoyed under the ordinary law. They were entitled to it as a matter of international law, which the English courts would regard as being part of the common law.18 Writing in 1961 on the immunities of international organizations, Jenks noted: A substantial literature on the subject…appeared during the inter-war period; … There was, however, in 1945 little systemic practice on the subject outside Switzerland, the Netherlands and (from 1940 onwards) Canada.19 “A third state has, of course, no obligation to allow such an entity to operate on its territory, but if it allows it to do so it must, it is suggested, respect the immunities appropriate to such an entity. This general line of reasoning is supported by the analogy of the recognition in third states of the immunities of diplomatic agents”. 16 Hackworth, Digest of International Law (1942), vol. IV, pp. 422–423; Hill, supra note 9, pp. 70–73. 17  United States Department of State, Opinion of the Department of State on Status of League of Nations Officials in the United States (1927) 1 Foreign Relations of the United States, pp. 413–414, available at . 18 Yearbook of the International Law Commission 1977, Vol I, Part One, 152 (cited in UN Doc. A/CN.4/304, para. 59). This statement needs to be seen in context (the enactment of the Diplomatic Privileges (Extension) Act 1944): see the various views expressed by British Government lawyers in the early 1940s, recorded in G. Marston, ‘The Origin of the Personality of International Organisations in United Kingdom law’, (1991) International and Comparative Law Quarterly pp. 403–424. 19 Jenks, supra note 14, pp. 1–2. There may have been ‘a substantial literature’, but, as Jenks noted in a memorandum communicated to some delegations attending the San Francisco Conference, “[t]here is no satisfactory discussion of the immunities and facilities which should be accorded to public international organizations as such.” (Ibid., p. 13).

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In 1969, a report prepared by a Council of Europe sub-committee of government experts, mostly foreign ministry lawyers, stated: It is sometimes claimed that privileges and immunities ought to be accorded to International Organisations and persons connected with them as a matter of customary international law or international practice. The Sub-Committee was of the opinion that, although some Organ­ isations have a need for privileges and immunities for the exercise of their functions and the fulfilment of their purposes, an Organisation was not entitled to any given privileges and immunities in the absence of any agreement. It was pointed out that, in the case of the United Nations for example, Article 105 of the Charter provided the legal basis for the grant of privileges and immunities…20 Lammers has described how, following the adoption of the 1975 Vienna Convention on the Representation of States in Their Relations with Interna­ tional  Organizations of a Universal Character, in 1976 the International Law Commission took up the second part of its topic on relations between states and international organizations (status, privileges and immunities of international organizations, their officials, experts, etc.).21 There were eight reports by two successive Special Rapporteurs,22 and—as so often—a most useful study by the UN Secretariat.23 In his preliminary report, Special Rapporteur El-Erian 20

Privileges and immunities of international organisations and persons connected with them, Report of the Sub-Committee on Privileges and Immunities of International Organisations, revised and approved by the European Committee on Legal Co-operation (CCJ) at its 11th meeting (Addendum to CM (69) 92). The Committee of Ministers took note of the report in Resolution (69) 29 of 26 September 1969, adopted by the Ministers’ Deputies on 26 September 1969. 21  See further the contribution by Johan Lammers to this compilation. See also P. Bekker, ‘The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: an Assessment’ (1993) 6 Leiden Journal of International Law pp. 3–16. 22  Twenty-two draft articles were referred to the Drafting Committee, which however took no action. Again, see further the contribution by Johan Lammers to this compilation for a more detailed discussion of this history. 23 The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: Supplementary study by the Secretariat, UN Doc. A/CN.4/L. 383 and Add. 1–3, Yearbook of the International Law Commission 1985, Vol. II, Part One, Addendum, p. 145. This ‘Supplementary study’ needs to be read with Part Two (‘The Organizations’) of the Secretariat’s 1967 study: The practice

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included a passage on ‘The place of custom in the law of international immunities’,24 in which he cited one or two authors and some statements by states to suggest that a customary rule might at least be in the process of formation. Fifteen years later, in 1992, the Commission decided not to pursue consideration of the topic “for the time being”, inter alia because it was “a matter which seemed to be covered, to a large extent, by existing agreements”,25 a decision endorsed by the General Assembly.26 As mentioned above, in 2006, Gaja produced a syllabus for a new topic entitled ‘Jurisdictional immunity of international organizations’, which was included in the Commission’s long-term programme of work in 2006,27 but so far it has not been taken forward. The reaction in the Sixth Committee of the General Assembly in 2006 to the new topic was not entirely positive.28 3

Approaches to the Immunity of International Organizations

Those who consider that there is a customary international law rule conferring immunity upon international organizations have typically used one or more of four arguments. First, in the early days of international organizations, perhaps before there was a real understanding of their nature, there was the somewhat simplistic view that, since international organizations were composed of states, they should benefit from the same immunities as states. But “international organizations are definitely not States”,29 and state immunity has in any

24  25  26  27 28 

29

of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities, UN Doc. A/CN.4/L. 118 and Add.1 and 2, Yearbook of the International Law Commission 1967, Vol II, p. 154. See also UN Doc. ST/LEG/17 (1987) with information about regional organizations. Yearbook of the International Law Commission 1977, Vol. II, Part One, UN Doc. A/CN.4/304, pp. 151–152, paras. 57–62. Yearbook of the International Law Commission 1992, Vol. II, Part Two, pp. 52–53, paras. 355 and 359–362. UN General Assembly Resolution 47/33 (25 November 1992). See supra note 5. Topical Summary of the discussion held in the Sixth Committee of the General Assembly  ­during its sixty-first session, prepared by the Secretariat, UN Doc. A/CN.4/577, para. 126(c). A. Pellet, ‘International Organizations are Definitely not States. Cursory Remarks on the ILC’s Articles on the Responsibility of International Organizations’, in M. Ragazzi (ed.), The Responsibility of International Organizations (Essays in Memory of Sir Ian Brownlie) (2013), pp. 41–54.

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event moved on and is no longer generally regarded as absolute,30 so “recourse even by analogy to the legal position of sovereigns [is] wholly unnecessary and illogical”.31 Second, it is sometimes suggested that, by recognizing the international personality of an international organization, states (member states and possibly third states) necessarily accept certain immunities because such immunities are functionally necessary for the organization to operate. This rather begs the question, and has little support.32 Third, and closely related, it has been suggested that it could be argued that once a State has consented to the presence of an organisation on its territory for a particular purpose, it is bound to extend all such privileges and immunities as are necessary for the proper functioning of the organisation and the achievement of that purpose.33 30 The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted without a vote on 2 December 2004 by UN General Assembly Resolution 59/38. Notwithstanding the relatively slow participation in the Convention, it has been described as “a catalyst for the development of the modern customary international law of State immunity, of which it is largely declaratory”: R. O’Keefe & C. Tams (eds.), The United Nations Convention on Jurisdictional Immunities of States and Their Property. A Commentary (2013), p. xlii. 31  R.Y. Jennings, in P. Bekker, The Legal Position of Intergovernmental Organizations (1994), p. vii (Foreword). See also F. Morgenstern, Legal Problems of International Organizations (1986), pp. 5–10. A UN Secretariat study from 1985 referred to “a time when the doctrine of sovereign immunity was undergoing a rapid evolution. A more restrictive doctrine was being developed in many countries, culminating in the enactment of national legislation such as the United States Foreign Sovereign Immunities Act of 1976. Although not directly applicable to international organizations, the changing doctrine of sovereign immunity and in particular the more restrictive approach to the commercial activity of foreign sovereigns will inevitably have an impact on the way national courts view the activities of international organizations.” See UN Doc. A/CN.4/L. 383 and Add. 1–3, p. 161, Part A, Chap. II, Sect. 7, para. 11. See also H. Fox, P. Webb, The Law of State Immunity (3rd ed.) (2013), pp. 570–579, especially at p. 579. 32  M. Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’ (1995–1996) 36 Vanderbilt Journal of International Law p. 53. 33 Sands & Klein, supra note 8, p. 493. Crawford, citing Amerasinghe, Higgins and the Mazilu case (the relevance of which is not obvious), writes that “[i]t would seem churlish for a state to agree to house an organization but deprive it of those attributes that would allow it to function as intended.”: Brownlie’s Principles of Public International Law (8th ed.) (2012), p. 173.

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However, whether by consenting to the presence of an international organization on its territory a state has bound itself to accord the organization immunity from jurisdiction is not something that can be answered in the abstract. All depends on the particular circumstances. It is certainly possible that a state may undertake unilaterally a legally binding commitment in this field as in others, but the conditions are stringent, and such cases are likely to be rare. In any event, the obligation would in that case arise because of the application of principles such as good faith and the law on unilateral declarations, not because of a rule of customary international law concerning the immunity of international organizations. Fourth, there is the view that the existence of many widely accepted and similar agreements is evidence of or even establishes a rule of immunity under customary international law. Indeed, one of the main questions raised in connection with a possible customary rule on the immunity of international organizations is whether the extensive treaty practice has led to the emergence of rules of customary international law. Treaties are in fact the main “practice” cited by those who claim the existence of a customary rule. This is discussed further in Section 6 below. 4 Practice Except for treaties, there is relatively little available practice and opinio juris concerning the immunity of international organizations. One place to look could be legal argument by governments before domestic courts, in those legal systems where the Government provides the courts with its views on such questions of international law.34 There are, in addition, a few other (often dated) instances when states have taken a position on the matter, individually or collectively.35 Mention has already been made of the 1969 Council of Europe report, endorsed by the Committee of Ministers (“an Organization 34

Opinion of the Dutch Government cited in Iran-US Claims Tribunal v AS (Netherlands Supreme Court), 20 December 1985, 94 ILR 327; Memorandum of the International Public Law Section of the Swiss Federal Political Department, 28 February 1994, (1995) Revue Suisse de droit international et droit européenne p. 596; submission of the Austrian Federal Chancellor’s Office Constitutional Law Service (‘Bundeskanzleramt-Verfassungsdienst’) in the Arbitration Panel for In Rem Restitution case (see note 50 below). 35  See also Swiss Federal Council to the Federal Assembly, quoted in Yearbook of the International Law Commission 1977, Vol I, Part One, p. 152, para. 6 (citing P. Cahier, Le droit diplomatique contemporain (1962), pp. 46–47).

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was not entitled to any given privileges and immunities in the absence of any agreement”).36 National legislation and case-law37 may be the best evidence of a state’s view on this issue, and are referred to below in respect of the main host states.38 In many domestic court cases dealing with the immunity of international o­ rganizations, the courts have rejected any customary international law immunity.39 There are, 36  See supra note 20. 37 See, in the context of state immunity, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 3 February 2012, International Court of Justice, Judgment, ICJ Reports 2012, p. 99, para. 73 (“for the purposes of the present case the most pertinent State practice is to be found in those national judicial decisions….”). 38 UN Secretary-General, Legislative Texts and Treaty Provisions concerning the Legal Status, Privileges and Immunities of International Organizations (1959–61, 2 vols.); and successive volumes of the United Nations Juridical Yearbook. For accounts of the position in Argentina, Austria, Belgium, Canada, France, Germany, Greece, India, Italy, Japan, Netherlands, Philippines, Russian Federation, Switzerland, United Kingdom, and United States, see A. Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (2013). Other studies focusing on case-law in general include J. Lalive, ‘L’immunité de juridiction des états et des organisations internationales’, (1953-III) 84 Recueil des Cours pp. 205–396; Nguyen Quoc Dinh, ‘Les privilèges et immunités des organisations internationales d’après les jurisprudences nationales depuis 1945’, (1957) AFDI p. 55; H. Glenn, M. Kearney & D Padilla, ‘The immunity of international organizations’, (1981/82) 22 Virginia Journal of International Law p. 247; P. Bekker, The Legal Position of Intergovernmental Organizations: a Functional Necessity Analysis of their Legal Status and Immunities (1994); C. Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Vol. VI, p. 10, paras. 28–33. For particular states or organizations not covered below, see I. Seidl-Hohenveldern, “L’immunité de juridiction des Communautés européennes”, (1990) Revue du Marché Commun et de l’Union Européenne p. 475; O. Nakamura, ‘The Status, Privileges and Immunities of International Organizations in Japan: An Overview’ (1992) 35 The Japanese Annual of International Law p. 116; K. Hailbronner, ‘Immunity of International Organizations from German National Juris­ diction’ (2004) 42 Archiv des Völkerrechts p. 329. See also the contributions to this compilation made by Chanaka Wickremasinghe (regarding the United Kingdom), Kirsten Schmalenbach (Austria), Eric De Brabandere (Belgium), Beatrice Bonafé (Italy) and Thomas Henquet (the Netherlands). 39 Hetzel v EUROCONTROL (1979), DVBl (1980), 127; DÖV (1980), 142; NJW (1980), 540; Bank Bumiputra Malaysia Bhd v International Tin Council, High Court of Malaysia, 13 January 1987, 80 ILR 29; ITC v Amalgamet Inc, 524 NYS.2d 971 (Sup., 1988). 25 January 1988, 80 ILR 35; CEDAO v BCCI, TGI Paris, 4 Dec 1991, 118 JDI 693, 701 (1992); CEDAO v BCCI, CA Paris, 13 Jan 1993, 120 JDI 353 (1993); Amaratunga v Northwest Atlantic Fisheries Organization, Supreme Court of Canada, 29 November 2013, 2013 SCC 66.

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however, decisions the other way,40 including occasionally by courts of nonmember states.41 But care has to be taken when assessing domestic court decisions since they may well be applying domestic legal provisions or be otherwise influenced by considerations peculiar to their own legal system.42 The practice of international organizations is potentially very important.43 But here, as in other fields, organizations seem reluctant to make available information about their practice.44 It would, for example, be interesting to 40

X v WEU, Amtsgericht Bonn, 23 August 1961, MDR (1962), 315; International Institute for Agriculture v. Profili (Italian Court of Cassation), 26 February 1931, 5 ILR 413; Cristiani v Istituto italo-latino-americano, Corte di Cassazione (Sezione Unite), 23 November 1985, No. 5819, 87 ILR 21; Spaans v Iran-US Claims Tribunal, Netherlands, Supreme Court, 20 December 1985, 94 ILR 321, 18 NYIL 357 (1987); Eckhardt v EUROCONTROL (No. 2), Maastricht District Court, 12 January 1984, 16 NYIL 464 (1985); 94 ILR 338; Mendaro v The World Bank, 717 F.2d 610 (DC. Cir. 1983), 99 ILR 92; Weidner v International Telecommunications Satellite Organization 382 A.2d, 508 (DC, 1978). 41  ZM v Permanent Delegation of the League of Arab States to the UN, 116 ILR 643, in which (at p. 647) a Swiss Labour Court held that “customary international law recognised that international organisations, whether universal or regional, enjoy absolute immunity…. This privilege of international organisations arises from the purposes and functions of assigned to them. They can only carry out their tasks if they are beyond the censure of the courts of member states or their headquarters.” 42 Gaja mentions a number of cases in which domestic courts asserted the existence of an obligation under ‘general international law’ to grant immunity to international organizations: see supra note 5, paras. 4–5. But it seems doubtful that in any of these cases the court actually reached a reasoned conclusion as to the existence of a rule of customary international law. For example, in some of these cases, in particular, the “string of judgements by the Supreme Court of the Philippines” the decisions were based on treaty, not customary international law: H. Roque, ‘The Philippines’, in A. Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (2013), pp. 207–220, at p. 211 (Acosta). 43 Question of Privileges and Immunities of the United Nations, of Representatives of Member States and of Officials of the Organization, Statement made by the UN Legal Counsel at the 1016th meeting of the Sixth Committee, 6 December 1967: UN Juridical Yearbook 1967, pp. 310–314 (“I doubt that I am being over-bold in suggesting that the standards and principles of the [General] Convention have been so widely accepted that they have now become a part of the general international law governing the relations of States and the United Nations.”). And they refer to Dominicé, (1984-IV) 187 Recueils des Cours p. 220. 44  But see, e.g., the relevant part of the 1967 study, which tends to confirm that there is no immunity under customary international law: Yearbook of the International Law Commission 1967, Part II, pp. 222–224, paras. 65–75. See also, however, a March 2010 statement by the European Commission to the Council of Europe Committee of Legal Advisers on Public International Law (‘CAHDI’):

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know when and how organizations invoke customary international law in this field, either in negotiations with states or in court proceedings, and how often they seek, instead or in addition, to get a state’s ad hoc agreement to apply the provisions of the General Convention or the Specialized Agencies Convention. And perhaps, as Morgenstern has written (referring generally to the application of international law to international organizations), “[r]ecourse to arrangements evading the legal issues prevents the development of practice and hence of custom.”45 The Constitutional Law Service of the Austrian Federal Chancellor’s Office (‘Bundeskanzleramt-Verfassungsdienst’), in a submission cited by the court in the Arbitration Panel for In Rem Restitution case,46 asserted that “customary international law must be observed, according to which international institutions generally enjoy immunity from proceedings before the domestic courts”.47 “Insofar as such lawsuits are deemed to concern the European Union itself, immunity of jurisdiction will be invoked on the grounds that the Union is an international organisation benefiting in non-EU countries from the general rule of international law regarding the jurisdictional immunity of international organisations. This means that unless the Union has expressly waived its immunity, it should be exempted from the local jurisdiction of municipal, judicial or administrative authorities and therefore should not be subject to suits, claims or enforcement proceedings in these domestic forums. In any event, the European Union’s claim of jurisdictional immunity is based on the rule of general (customary) international law which recognises that like States, international organisations are exempted from the local jurisdiction of municipal judicial or administrative authorities and therefore are not subject to suits, claims or enforcement proceedings in such domestic forums. The immunity invoked is based on the principle of functionality: i.e., immunity that encompasses all acts needed for the execution of the official functions and activities of the organisation. Therefore, the foregoing applies, in the view of the European Commission, even in the absence of express provisions laid down in international treaties and even when not expressly provided for in municipal law.” The text of this statement is extracted in CAHDI’s database on state practice on state immunity, which is available at: . 45  Morgenstern, supra note 31, p. 3. 46 VfGH B 783/04, 14 December 2004, VfSlg 2004 No. 17415, p. 1129–1144. For an English summary and analysis of the case see Anonymous v Austria, Individual constitutional complaint decision, B 783/04; ILDC 140 (AT 2004) 14 December 2004; and G. Novak, A. Reinisch, ‘Austria’, in A. Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (2013), pp. 45–47. 47 The Constitutional Law Service cited one Belgian and one English case. Dalfino (Conseil d’état, Arrêt du 17 novembre 1982 (n° 22657), Dalfino c. Conseil supérieur des écoles ­européennes, Recueil des arrêts du Conseil d’état (R.A.C.E.), 1982, p. 1544) is cited for a

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The authorities cited do not support any such proposition, and the Austrian Supreme Court itself did not decide the case on this basis.48 In the German OSCE ‘Representative’ case (2005),49 the Austrian Supreme Court discussed the question of the customary nature of the rules on immunity concerning international organizations. As summarized by Reinisch and Bachmayer:50 The Court first noted that international organizations were subjects of international law and enjoyed broad immunity. Unlike states, which only enjoyed immunity for acts they are carrying out in an official capacity (acta iure imperii), the Court, by relying on academic literature dealing with the issue, found that the immunity of international organizations was absolute and noted that the legal basis for both immunities and privileges of international organizations was to be found in the organization’s charter, headquarters agreements, customary international law or domestic laws. However, the Court went on to state that “[s]ince international organizations have gained prominence only after World War II, it is doubtful whether there is indeed customary international law in this area.”51

proposition that has been firmly rejected by many later Belgian cases. Nowhere in the judgment did the Court refer either to immunity or to customary international law; it simply held that it had no jurisdiction to review the acts of the bodies concerned since they were not Belgian administrative authorities (“neither [body is] organized or c­ontrolled by the Belgian public authorities and [do not apply] Belgian laws and regulations relating to education but rather regulations adopted by international agreement.”) Similarly, the English case did not refer to immunity from jurisdiction, but rather (as did the In Rem case itself) the lack of authority of the domestic court to review the substantive judicial decisions of the international institution, in casu the  European Patent Office. (The case is described in Lenzing AG v the United Kingdom, Application No. 3881/97, European Commission of Human Rights, Decision on Admissibility.) 48 See further the contribution of Kirsten Schmalenbach to this compilation. See also G. Novak & A. Reinisch, ‘Austria’, in Reinisch (ed.), supra note 46, pp. 31–54, at pp. 45–47. 49  OGH 6 Ob 150/05k (German OSCE ‘Representative’ Case), 1 December 2005, SZ 2005 No. 175, pp. 467–471. 50 A. Reinisch & P. Bachmayer, ‘Customary International Law in Austrian Courts’, pp. 24–25, which is available via the website of the Social Sciences Research Network at: . 51  Ibid.

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There is no legislation in Belgium concerning the immunities of international organizations.52 The courts have held that organizations only enjoy immunity where this is required by a treaty that has Parliamentary approval and has entered into force.53 In Canada, the question of immunity is largely governed by legislation, currently the Foreign Missions and International Organizations Act 1991.54 In 2010, where the question arose whether an organization had complete immunity from legal process, the Supreme Court of Nova Scotia (Justice Wright), after considering two detailed expert reports, preferred the opinion of Professor Saunders that there is no customary international law rule requiring the grant of complete immunity from all legal process for international organizations and that the sole source of NAFO’s immunity in this case is the NAFO Immunity Order as legislated. On appeal from the Nova Scotia Court of Appeal, the Supreme Court of Canada stated that In the case of international organizations, unlike that of states, the ­prevailing view at present is that no rule of customary international law confers immunity on them. International organizations derive their ­existence from treaties, and the same holds true for their rights to immunities…55

52  See further the contribution by Eric De Brabandere in this compilation; see also C. Ryngaert, ‘Belgium’, in A. Reinisch (ed.), supra note 46, pp. 55–72. Citing a not very clear press release about Eurocontrol, Ryngaert suggests that “the political branches have at times cited the customary character of international organizations’ immunities” (p. 58). This does not in fact seem to be the position of the Belgian authorities. 53 League of Arab States v TM, Appeal Judgment of 21 March 2001, Cass. No S.99.0103.F: ILDC 42 (BE 2001). 54  P. Saunders, ‘Canada’, in Reinisch (ed.), supra note 46, pp. 73–101, at pp. 88–89 and 99. 55 Amaratunga v Northwest Atlantic Fisheries Organization, 29 November 2013, 2013 SCC 66), para. 29, referring to a passage in H. Fox, The Law of State Immunity (2nd ed. 2008), at pp. 725–726. (The passage is to be found in the latest edition, published in August 2013: H. Fox, P. Webb, The Law of State Immunity (3rd ed. 2013), at p. 572, but see note 92 below.) For the Supreme Court of Nova Scotia judgment, see Tissa Amaratunga v. Northwest Atlantic Fisheries Organization, 30 September 2010, 2010 CanLII 346 (NSSC). There was an appeal to the Court of Appeal for Nova Scotia (2011 CanLII 73 (NSCA), but not on the customary international law point.

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The position in France56 has been described as follows: Customary rules that have played an essential role in the French case-law concerning immunities of foreign states are, on the contrary, of almost no use for international organizations. There is a tendency in French courts and among the administrations to consider that anything not expressly granted by a written agreement should not be claimed by and accorded to an international organization.57 In a decision of 17 February 2000 concerning the Académie Diplomatique Internationale, the Cour d’appel of Paris stated that “the status of an international organization is not sufficient to imply privileges and immunities which cannot be granted except by a headquarters agreement.”58 In Israel, individual international organizations are accorded immunity by decree of the Minister of Foreign Affairs. In a 2011 judgment concerning an employment dispute involving the United Nations Development Programme and the Food and Agriculture Organization, the Jerusalem Regional Labour Tribunal said that “[a]s opposed to the immunity of foreign States, which is regulated by customary international law together with treaty law, the immunity of international organizations is regulated by international agreements”.59 The Jerusalem District Court has similarly said in a judgment of that year that “[r]ecognizing the immunity of the UN in Israel is founded on international conventional law”.60 The approach of Italian courts has been idiosyncratic.61 They have basically sought to apply to international organizations the rules of customary international law on state immunity. More recently they have taken a different tack towards some organizations with limited competences, such as the European 56  G. Bastid Burdeau, ‘France’, in Reinisch (ed.), supra note 46, pp. 105–122. 57  Ibid., pp. 107–108. 58 Ibid., p. 108. See also p. 114, referring inter alia to the Aquarone case (Conseil d’Etat, Assemblée, 6 June 1997). 59  Hmoud v. UNDP and FAO, case number 1987–09 (Judgment of January 1, 2011), para. 7. 60  X v. UNRWA and Others, civil case number 2524/08 (Judgment of May 2, 2011), para. 5. 61 See the contribution of Beatrice Bonafé to this compilation. See also R. Pavoni, ‘Italy’, in Reinisch (ed.), supra note 46, pp. 155–171; A. Cassese, ‘L’immunité de juridiction civile des organisations internationales dans la jurisprudence italienne’ (1984) 30 AFDI p. 55; A. Reinisch, ‘Comments on a Decade of Italian Case Law on the Jurisdictional Immunity of International Organizations’ (2009) 19 Italian Yearbook of International Law p. 101; P. Pustorino, ‘The Immunity of International Organizations from Civil Jurisdiction in the Recent Italian Case Law’ (2009) 19 Italian Yearbook of International Law p. 57.

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University Institute in Florence. The Supreme Court has held that “the formation of a custom extending the principle par in parem non habet iurisdictionem, which is applicable among states, to all international organizations, is not certain”.62 According to Pavoni: Without repudiating the customary basis of the immunities of international organizations…, the Supreme Court has made clear that this is not necessarily valid for all organizations and that, accordingly, it shall assess the various immunity clauses on a case-by-case basis.63 There have been two cases in Japan,64 both in the Tokyo District Court, and both concerning staff matters. In the 1977 case of Shigeku Ui v. United Nations University,65 the District Court found that the United Nations University was a subsidiary organ of the General Assembly of the United Nations and, curiously, that as such it did not benefit from Article 105 of the Charter or Article 2(2) of the General Convention, but it nevertheless gave effect to the immunity expressly provided for in its Statute (which had been adopted by a General Assembly resolution). In 1982, the same Court found that the Delegation of the European Commission had immunity by virtue of its Headquarters Agreement.66 Neither decision was based on customary international law. The courts in the Netherlands67 have adopted “quite an isolated position”68 on both the sources of the law in this field (that is, chiefly customary international law) and the scope of immunity (limited to ‘disputes which are immediately connected with the performance of the tasks entrusted to the organization’, which is applied variably depending on the organization). The leading case is Spaans v Iran-US Claims Tribunal, in which the Dutch Supreme Court said that

62  63 64  65  66  67

European University Institute v Piette (2000) RDIPP p. 472. R. Pavoni, ‘Italy’, in Reinisch (ed.), supra note 46, pp. 159–160. T. Ueki, ‘Japan’, in Reinisch (ed.), supra note 46, pp. 173–178. (1980) 23 Japanese Annual of International Law, pp. 196–200. Tokyo District Court, judgment of 31 May 1982. See further the contribution of Thomas Henquet to this compilation. See also G. den Dekker, ‘Immunity of the United Nations before the Dutch Courts’ (2008) 3(2) The Hague Justice Journal p. 9; T. Henquet, ‘International Organizations in the Netherlands: Immunity from Jurisdiction in the Dutch Courts’ (2010) 57 Netherlands International Law Review p. 267; R. van Alebeek & A. Nollkaemper, ‘Netherlands’, in Reinisch (ed.), supra note 46, pp. 179–206. The authors include some interesting insights into the special approach of Dutch courts in this field (pp. 203–206). 68  Ibid. p. 203.

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[i]t must be assumed that even in cases where there is no treaty, it follows from unwritten international law that an international organization is entitled to the privilege of immunity from jurisdiction on the same footing as generally provided for in the treaties…, in any event in the State in whose territory the organization has its seat, with the consent of the government of the State. That means that, according to unwritten international law, as it stands at present, an international organization is in principle not subject to the jurisdiction of the courts of the host State in respect of all disputes which are immediately connected with the performance of the tasks entrusted to the organization in question.69 As explained by Van Alebeek and Nollkaemper, the Dutch courts seem to have regard to this view of customary international law even in the face of clear treaty provisions. The Philippines courts apply treaty provisions on the immunity of international organizations, by virtue of the incorporation clause of the Constitution whereby the general principles of international law, including pacta sunt servanda, are part of the law of the land.70 In Switzerland,71 the immunity of international organizations has since 2008 been governed by the Host State Act.72 In upholding the immunity of international organizations “for all their acts” (subject to any specific exceptions in the treaty concerned), the Federal Supreme Court has held that immunity is governed by treaty and not by customary international law: Because international organizations [did] not qualify—contrary to states—as full subjects of international law, they always derive[d] their immunities from treaties…the reasons for that difference [between the immunities standard of states and international organizations] must in particular be seen in the legal basis itself of the immunity accorded to 69

Spaans v Iran-US Claims Tribunal, Netherlands, Supreme Court, 20 December 1985, 94 ILR 321, 18 NYIL 357 (1987). See also Eckhardt v Eurocontrol (No.2), 12 January 1984, Maastricht District Court, 94 ILR 338; Greenpeace Nederland v Euratom, Judgment on Appeal in Cassation, 13 November 2007, ILDC 838 (NL 2007). 70  H. Roque, ‘The Philippines’, in Reinisch (ed.), supra note 46, pp. 207–220. 71  T. Neumann & A. Peters, ‘Switzerland’, in Reinisch (ed.), supra note 46, pp. 241–274. 72 Loi fédérale du 22 juin 2007 sur les privilèges, les immunités et les facultés, ainsi que les aides financières accordés par la Suisse en tant que l’Etat hôte (Loi sur l’Etat hôte, LEH). Prior to this Law, immunities were granted pursuant to an Arrêté fédéral of 30 September 1955.

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international organizations, i.e. an international treaty and not a rule of customary international law.73 The United Kingdom’s International Organizations Acts (from 1968 to 2005) provide that certain international organizations may enjoy immunity from suit and legal process, but only where this is required by an international agreement to which the United Kingdom is a party and an Order in Council has been made.74 Given the principle that the common law is ousted if there is legislation on a subject, this tends to confirm that the United Kingdom at least does not feel itself obliged to confer immunity upon international organizations by any rule of customary international law. As Bingham J said in respect of the International Tin Council (‘ITC’): [I]nternational organizations such as the ITC have never so far as I know been recognized at common law as entitled to sovereign status. They are accordingly entitled to no sovereign or diplomatic immunity in this country save where such immunity is granted by legislative instrument, and then only to the extent of such grant.75 In 1981, in response to a request for information on the immunities from jurisdiction and execution possessed by international organisations, the Legal Adviser to the UK Foreign and Commonwealth Office enclosed a memorandum prepared in the Office which stated that, in the absence of an Order in Council or other legislative provision, “it is thought likely that a court would hold that there were no international customary rules on the subject and that the organisation would not therefore be accorded immunity”.76

73

Groupement d’Entreprises Fougerolle et consorts v CERN, 21 December 1992, Federal Supreme Court, Judgment, para. 1a (translation by Neumann & Peters, supra note 71, p. 245). See also NLM Capital Ltd v BIS and Debt Enforcement Office Basel-Stadt, 12 July 2010, Federal Supreme Court, Judgment, discussed in Neumann & Peters, supra note 71, pp. 248–251, 262–264 and 266–267. 74  See further the contribution of Chanaka Wickremasinghe to this compilation. D. Sarooshi & A. Tzanakopoulos, ‘United Kingdom’, in Reinisch (ed.), supra note 46, pp. 275–302; E. Schwelb, ‘The Diplomatic Privileges (Extension) Act, 1944’ (1945) 8 Modern Law Review pp. 50–63, at pp. 163–167. 75 Standard Chartered Bank v International Tin Council [1987] 1 WLR 641, p. 648; Halsbury’s Laws of England, Vol. 61 (5th ed.) (2010), para. 309. 76  See (1981) 52 British Yearbook of International Law pp. 391–396.

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The position in the United States is based on treaties and on the Interna­ tional Organizations Immunities Act 1945,77 which provides that international organizations as defined “shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments”. The approach varies from court to court.78 A frequently cited US case is Mendaro v World Bank,79 decided in 1983 by the Court of Appeals for the District of Colombia Circuit. This in fact turned on the interpretation of the World Bank’s Articles of Agreement. But as part of the exercise of interpreting the treaty provision concerned, the Court of Appeals—under the heading, ‘Policies Underlying the Immunity of International Organizations’—asserted that ‘courts of several nationalities have traditionally recognized this immunity [that is, the immunity from suits by employees]’ (referring to just three rather old cases (Profili,80 Chemidlin,81 and Dame Adrien82)). It then concluded that the immunity was “now an accepted doctrine of customary international law”, citing in support only some limited writings: a passage from Alain Plantey’s 1981 book on The International Civil Service;83 an article by Seyersted;84 and what was only a 1983

77  International Organizations Immunities Act, Public Law No. 299, 79th Congress, December 29, 1945; C. Brower II, ‘United States’, in A. Reinisch (ed.), supra note 46, pp. 303–327. See also R. Oparil, ‘Immunity of International Organizations in United States Courts: Absolute or Restrictive?’ (1991) 24 Vanderbilt Journal of Transnational Law p. 689; S. Herz, ‘International Organizations in U.S. Courts: Reconsidering the Anachronism of Absolute Immunity’ (2008) 31 Suffolk Transnational Law Review p. 471. 78 Especially between the US Court of Appeals for the Second Circuit and the US Court of Appeals for the District of Columbia Circuit. In 2010, the US Court of Appeals for the Third Circuit rejected the view that international organizations enjoy absolute immunity and are subject to the same exceptions as foreign states: OSS Nokalva, Inc. v. European Space Agency, 617 F.3d 756 (3d Cir. 2010), discussed in C. Brower II, ‘United States’ in Reinisch (ed.), supra note 46, pp. 317–323. Brower concludes that the OSS Nokalva case “lends itself to criticism on many levels. …it has not enjoyed a warm reception in other US jurisdictions.” (at p. 322) 79 For a discussion of Mendaro, see C. Brower II, ‘United States’ in Reinisch (ed.), supra note 46, at pp. 313–315. 80  International Institute of Agriculture v Profili, 5 Annual Digest 413 (Italy, Court of Cassation, 1931). 81  Chemedlin v International Bureau of Weights and Measures, 12 Annual Digest 281 (France, Tribunal civil de Versailles, 1945). 82 Dame Adrien & Others, 6 Annual Digest 33 (France, Conseil d’Etat 1931). 83  A. Plantey, The International Civil Service: Law and Management (1981). 84  F. Seyersted, ‘The Legal Nature of International Organizations’ (1982) 51 Nordisk Tidsskrift Int’l Ret p. 203.

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‘tentative draft’ of the Restatement of the Foreign Relations Law of the United States (Third), a draft that was in fact materially amended before adoption in 1987.85 5 Writings While there has been a good deal of literature on the immunity of international organizations,86 on the whole writers have not shed a great deal of light on the position under customary international law. The present author does not entirely agree with Gaja’s assessment that [c]urrent views on the existence of rules of general international law covering immunities of international organizations are divided. While some studies still deny the existence of any such rules, the prevailing trend in recent works is more favourable to admitting that some form of immunity—sometimes, even absolute immunity—is part of international law.87 85 The Restatement of the Foreign Relations Law of the United States (Revised) (Tentative Draft No. 4) (1983) stated that “an international organization is entitled to…such immunity from jurisdiction of a member state as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process” (emphasis added). The final version of the Third Restatement of the Law: Foreign Relations of the United States (1987), Vol. 1, para. 467(i) states that “[u]nder international law, an international organization generally enjoys such privileges and immunities from the jurisdiction of a member state” (emphasis added). And para. 467(ii) states that “[u]nder the law of the United States, international organizations are entitled to the privileges and immunities provided for by international treaties to which the United States is party, and organizations designated by the President under the International Organizations Immunities Act are entitled to the privileges and immunities provided for in that Act.” The 1987 Restatement also contains the following passage: “Despite the emphasis on treaties and legislation, international organizations may rely to a degree on customary international law when claiming immunity from the jurisdiction of US courts. However, US courts have never relied on customary international law as the sole basis of immunity for international organizations not covered by a US treaty or statute. Instead they have tended to rely sparingly on customary international law in defining the precise scope of immunity when treaties and statutes have left the matter in doubt.” (Ibid., pp. 306–307 (emphasis in original, footnotes omitted)). 86 See bibliographies in Gaja, supra note 5; Reinisch (ed.), supra note 46. 87  Gaja, supra note 5, para. 10 (references omitted).

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On the contrary, it appears that few authors seem prepared to state any clear position. In his Hague lectures, dating from 1984, Dominicé focused chiefly on the question of whether the extensive treaty practice has led to the emergence of a rule of customary international law. He concluded that the United Nations and specialized agencies, and also other organizations, enjoy immunity under customary international law, but does not cite any authority.88 For a recent work, Brownlie’s Principles of Public International Law is fairly typical on this topic. It contains an inconclusive passage, which does little more than record the views of others, and ends by saying (as regards nonmember states) that [i]t may be argued, however, that if the personality of international organizations stems from an objective assessment of their functions and nonparties are required to accept their separate identity, then this personality must be populated with the attributes necessary for the organization to carry out its mandate, including as necessary the immunity of the institution and its personnel.89 Higgins cites the Restatement (Third) with apparent approval as regards universal organizations, and goes on to express the belief that organizations of limited membership also enjoy functional immunities, the basis lying on good faith (that is, provision of what is necessary for an organization to perform its functions) …. …members—and a fortiori the headquarters state—may not at one and the same time establish an organisation and fail to provide it with those immunities that ensure its role as distinct from that of the host state.90 Sands and Klein, on the other hand, summarise the position to the effect that 88  C. Dominicé, “L’immunité de juridiction et d’exécution des organisations internationales” (1984-IV) 187 Recueil des Cours pp. 145–238, at pp. 174–177 (Le problème de la coutume), pp. 219–225 (La question de la coutume). 89 J. Crawford, Brownlie’s Principles of Public International Law (8th ed.) (2012), pp. 173–174, at p. 174 (reference omitted). It is scarcely any clearer as regards member states. 90  R. Higgins, Problems and Process. International Law and How We Use It (1993), pp. 90–93, at p. 90. C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd ed.) (2005), pp. 344–348, uses identical language.

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states are under no duty to grant such privileges and immunities to particular international organisations if they have not agreed to do so explicitly, or may not be deemed to have agreed to do so implicitly. There are numerous instances in which national courts have refused to decline jurisdiction in respect of a particular organisation, in the absence of any instrument providing for such immunity and binding on the states concerned.91 The question has been touched upon by other writers, though with one or two exceptions equivocally and/or not in depth.92 In 1977, for example, Akehurst 91  Sands & Klein, supra note 8, pp. 492–493, paras. 15-039–15-040. 92 For a ‘selected bibliography’, see Gaja, supra note 5. See also A. Hammerskjöld, (1936–II) 56 Recueil des Cours pp. 107–211: he writes (at p. 182) that under customary international law the following three categories of persons enjoy immunity: members and officials of international institutions, members of international organs (arbitral tribunals etc), representatives of states “dans un organisme international permanent, périodique ou réuni ad hoc (conférence ou congrès)”. See also F. Schröer, “De l’application de l’immunité juridictionelle des états étrangers aux organisations internationales” (1971) 75 RGDIP p. 712; C. Dominicé, “L’immunité de juridiction et d’exécution des organisations internationales” (1984-IV) 187 Recueil des Cours p. 145; F. Morgenstern, Legal Problems of International Organizations (1986), pp. 5–10; M. Bettati, Le droit des organisations internationales (1987), p. 106; C. Dominicé, “La nature et l’étendue de l’immunité de juridiction des organisations internationales”, in K.H. Böckstiegel et al. (eds.), Völkerrecht, Recht der Internationalen Organisationen, Weltwirtschafstrecht, Festschrift für Ignaz Seidl-Hohenveldern (1988), p. 77; I. Seidl-Hohenveldern, ‘Functional Immunity of International Organizations and Human Rights’, in W. Benedek et al. (eds.), Development and Developing International and European Law: Essays in Honour of Konrad Ginther on the Occasion of his 65th Birthday (Frankfurt am Main, 1999), pp. 137–149; I. Seidl-Hohenveldern, G. Loibl, Das Recht der Internationalen Organisationen, einscliesslich der Supranationalen Gemeinschaften (7th ed.) (2000), pp. 114–115, at 281; A. Reinisch, International Organizations before National Courts (2000), pp. 145–157; K. Wellens, Remedies against International Organizations (2002), ch. 12; S. Dorigo, L’immunità delle organizzazioni internazionali dalla giurisdizione contenziosa ed esecutiva nel diritto internazionale generale (2008); J. Klabbers, An Introduction to International Institutional Law (2nd ed.) (2009), pp. 148–149; M. Ruffert & C. Walter, Institutionalisiertes Völkerrecht (2009), pp. 65–68 (“Anders als bei der Staatenimmunität lassen sich wegen der funktionalen Basis der Immunität Internationaler Organisationen nur schwer gewohnheitsrechtliche Regeln nachweisen, weil die funktionalen Bedürfnisse einer Organisation immer an konkretes Völkervertragsrecht gebunden sind.”); C. Ryngaert, ‘The Immunity of International Organizations before Domestic Courts: Recent Trends’ (2010) 7 International Organizations Law Review p. 121, at pp. 124– 132; H. Schermers & N. Blokker, International Institutional Law (5th ed.) (2011), pp. 1033– 1034, para. 1611; A. Ziegler, ‘Article 105’, in B. Simma et al., The Charter of the United Nations:

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wrote that “[i]t is uncertain to what extent international organisations enjoy immunities under customary law”.93 Reinisch was of the same opinion in 2011: Whether there is a customary international law on privileges and immunities of international organizations and, if so, the precise content of such customary law has remained controversial and led to divergent answers by different courts.94

A Commentary (2012), p. 2162, MN 7 (“It can be argued that the widespread acceptance of the Convention and the almost identical content of separate agreements entered into by host States and the UN can be seen as evidence of customary law in this respect”); M. Diez de Velasco, Instituciones de derecho internacional public (18th ed.) (2012), p. 376; J. Crawford, Brownlie’s Principles of Public International Law (8th ed.) (2012), pp. 173– 174. H. Fox & P. Webb, The Law of State Immunity (3rd ed.) (2013) seems to point both ways—on the one hand it is said that “[i]nternational organizations derive their existence and their immunities from treaties” (p. 572); on the other hand, it is said (at p. 573) that “it seems to be acknowledged as a matter of general international law that conferment of international personality on an organizations necessarily implies enjoyment of jurisdictional immunities before national courts [and that third states may be obliged to accord immunities] on recognition of the organization as a subject of international law separate from its founder members.” Neither proposition is supported by authority. D. Akande, in M. Evans (ed.), International Law (4th ed.) (2014), p. 268, states that “[i]n the absence of a treaty obligation, customary international law requires States to grant privileges and immunities to international organizations… The obligation is one of good faith and only requires the ‘provision of what is necessary for an organization to perform its functions’ (Higgins, 1994, p. 91).” 93  M. Akehurst, A Modern Introduction to International Law (3rd ed.) (1977), p. 118. 94 A. Reinisch, in J. Klabbers & Ǻ. Wallendahl, (eds.), Research Handbook of Interna­ tional  Organizations (2011), p. 135; A. Reinisch, ‘Transnational Judicial Conversations on the Personality, Privileges, and Immunities of International Organizations—An Intro­ duction’, in Reinisch (ed.), supra note 46, p. 8. See also R. van Alebeek & A. Nollkaemper, ‘Netherlands’, in Reinisch (ed.), supra note 46, at p. 187 (“Whether, in the absence of a treaty, customary international law requires states to grant immunity to international  organizations has been subject to some controversy”); and C. Wickremasinghe, ‘International Organizations or Institutions, Immunities before National Courts’, in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2012), Vol. VI, p. 10, para. 28 (“the evidence at present is too limited to answer the question [of whether there is the basis of a rule requiring that international organizations enjoy immunity as a rule of customary international law] unequivocally.”)

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It is difficult to disagree. Singer notes: “there is little persuasive evidence of customary norms delimiting the jurisdictional immunities of other specific international organizations [other than the United Nations], or of international organizations in general”.95 Indeed, scholars seem to have reached no generally shared conclusion on whether a customary rule exists, and as one author notes, “despite the existence of justified reasons, a revision of organizational immunity is nowhere in sight. It is high time to revisit the wisdom of the status quo…”96 Other writers, through their silence, seem not to consider there to be customary law in this field. Thus, a leading French text book, Dailler, Forteau and Pellet, merely says that the immunities of international organizations are based on international conventions or domestic legislation.97 The author of an entry in the Max Planck Encyclopedia, Möldner, points out that, unlike state and diplomatic immunity, immunity of international organizations was developed through treaty; the question, she says, is therefore “whether this treaty practice has already led to the existence of customary international law.” Her conclusion is that “[t]his is still contested”, by which she seems to mean among writers.98 6

Has a Rule of Customary International Law Emerged?

It was noted at the outset of this chapter that in the early days, from the nineteenth century onwards, there was little if any practice to suggest that customary international law required the granting of immunity to international organizations. Such a rule could have emerged as international organizations became a much more common and central feature of international life, starting with the establishment of the League of Nations. But that would have required ‘a general practice accepted as law’. As explained above, states generally did not consider themselves to be under an obligation to confer immunity in the absence of a treaty to which they were parties. 95

M. Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’ (1995–1996) 53 Virginia Journal of International Law p. 98. 96  K. Tesfagabir, ‘The State of Functional Immunity of International Organizations and Their Officials and Why It Should be Streamlined’ (2011) 10 Chinese Journal of International Law pp. 97–128, at p. 122. 97  P. Dailler, M. Forteau, A. Pellet, Droit international public (8th ed.) (2008), para. 385. 98 M. Möldner, ‘International Organizations or Institutions, Privileges and Immunities’, in R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012), Vol. VI, pp. 47–55, at para. 11.

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More recent domestic court decisions, as well as authors, have reached very different conclusions on the matter, usually on the basis of little authority. The absence of provisions for immunity in domestic law other than where there is a treaty is significant.99 And the fact that international organizations and states continue to take such care to address the issue of immunity in bilateral and multilateral treaties perhaps indicates a lack of conviction that the matter is covered by customary international law. If anything, the trend in recent years seems to be against recognizing immunity for international organizations under customary international law.100 It is certainly difficult to discern a general practice accepted as law, to the effect that international organizations enjoy immunity under customary international law. Possible arguments for the existence of a rule of customary international law on the immunity of international organizations from the jurisdiction of domestic courts were outlined in Section 3 above. Perhaps the most serious is that based on the fact that states have entered into a large number of treaties conferring immunity on organizations (though, as just noted, that could point the other way). The process whereby a rule set forth in a treaty may generate a rule of customary international law is well known.101 As has recently been said, 99  Legislative texts and treaty practice concerning the legal status, privileges and immunities of international organizations, UN Legislative Series Vols. 10 and 11 (UN Doc. ST/LEG/ SER.B/10 and 11). 100 “In recent years…national courts seem more reluctant to accept immunity of international organizations on the basis of customary international law and require a treaty basis”: Schermers & Blokker, supra note 92, pp. 1033–1034, para. 1611, note 234, citing C. Ryngaert, ‘The Immunity of International Organizations before Domestic Courts: Recent Trends’ (2010) 7 International Organizations Law Review p. 121, at pp. 124–132. Gaja, on the other hand, while acknowledging that “[c]urrent views on the existence of rules of general international law covering immunities of international organizations are divided”, goes on to say that “[w]hile some studies still deny the existence of any such rule, the prevailing trend in recent works is more favourable to admitting that some form of immunity—sometimes, even absolute immunity—is part of international law”: supra note 5. 101 North Sea Continental Shelf cases, International Court of Justice, Judgment, ICJ Reports 1969, pp. 41–43, paras. 70–74. The process is recognized by Art. 38 of the Vienna Convention on the Law of Treaties (albeit given the context rather narrowly, being confined in terms to third states). See also O. Schachter, ‘Entangled Treaty and Custom’ in Y. Dinstein (ed.) International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (1989), p. 717; M.E. Villiger, Customary International Law and Treaties (2nd ed.) (1997), pp. 167–192; M.H. Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des Cours pp. 317–346. As Gaja has pointed out, “it is often difficult to distinguish between the case of a treaty embodying or crystallizing a customary rule and that of the subsequent formation of a customary rule, since

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it is generally recognized that treaties may be a reflective of pre-existing rules of customary international law; generate new rules and serve as evidence of their existence; or, through their negotiation processes, have a crystallizing effect for emerging rules of customary international law.102 At the same time, as the International Law Association stated in its 2000 London Principles: “There is no presumption that a succession of similar treaty provisions gives rise to a new customary rule with the same content.”103 While it is true that in one or two cases, a treaty has appeared to recognize a rule of customary international law in this field,104 opinion among authors is mixed. Brower has written that “the General Convention’s provisions on jurisdictional immunity have been applied to other organizations and nonmember states through the development of similar treaties and customary it is hard to establish the date on which a customary rule is formed”: see O. Corten & P. Klein (eds.), The Vienna Conventions on the Law of Treaties. A Commentary (2nd ed.) (2011), p. 951. 102  First report of the Special Rapporteur on formation and evidence of customary international law (UN Doc. A/CN.4/663), para. 34 (with references). 103 Principle 25 of the ILA London Statement of Principles applicable to the Formation of General Customary International Law, and the commentary thereto; see Report of the Sixty-ninth Conference (2000), p. 712 at pp. 758–759. 104  According a UN Secretariat Study from 1967, Article 1 of the 1947 Agreement between the United Nations and Switzerland, the Agreement “expresses the privilege as one derived from international law” (Yearbook of the International Law Commission 1967, Vol. II, 222, para. 66); it reads: “The Swiss Federal Council recognizes the international personality and legal capacity  of the United Nations. Consequently, according to the rules of international law, the Organization cannot be sued before the Swiss Courts without its express consent.” Not so clear is Article III, Section 3 of the Agreement between Egypt and the World Health Organization (Yearbook of the International Law Commission 1977, Vol. II, Part One, 182, para. 62), which provides that the Organization “shall have in Egypt the independence and freedom of action belonging to an international organization under international practice.” Article 17(2) of the Vienna Convention on Consular Relations, added at the Vienna Conference in 1963: “A consular officer may, after notification addressed to the receiving State, act as representative of the sending State to any inter-governmental organization. When so acting, he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law.” See also the agreement between Switzerland and the League of Nations cited at n. 13 above.

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international law.”105 On the other hand, referring to the General Convention and the Specialized Agencies Convention, and the many other agreements on the privileges and immunities of international organizations, Watts wrote, in 1999, that [d]espite a broad measure of uniformity in the approach adopted in the agreements relating to most organizations, it was by no means clear whether those agreements reflected a sufficient basis for the emergence of rules of customary international law, and in any event differences on many matters of detail existed.106 It seems very doubtful whether treaties have generated a rule of customary international law in the present case. This is not least because states have not accepted that they have done so. While a rule of immunity could, “potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law”,107 and treaty practice could have developed in a uniform way (as was proposed by Jenks and others), the fact is that states continue to enter into treaties conferring various degrees of immunity on organizations, or none. One cannot deduce from the treaties any general practice of conferring immunity or a particular scale of immunity on international organizations, still less any widespread opinio juris in the matter. This is not surprising. The 1969 Council of Europe study,108 for example, concluded that privileges and immunities should be tailored to the needs of the particular organization. The International Law Commission has likewise emphasised, in the general commentary on its articles on the responsibility of international organizations, the “great diversity” among international

105  C. Brower II, ‘International Immunities: Some Dissident Views on the Role of Municipal Courts’ (2000) 41 Virginia Journal of International Law pp. 2–5. 106  A. Watts, The International Law Commission 1949–1998 (1999), p. 450. 107 North Sea Continental Shelf cases, International Court of Justice, Judgment, ICJ Reports 1969, p. 42, para. 72. There is a stark contrast between state immunity and the immunity of international organizations in this regard. While all states are equal, all organizations are different. While state immunity developed as a matter of customary international law, that of international organizations developed by treaty. And there has been no codification effort comparable to that leading to the United Nations Convention on the Jurisdictional Immunities of States and Their Property of 2004 which, even though it is not in force, may be looked to as reflecting or generating customary international law. 108  See supra note 20.

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­organizations.109 As with responsibility, it cannot simply be assumed that the same rules apply to all international organizations. It has, for example, been suggested that the United Nations, but no other international organization, enjoys immunity under customary international law.110 Be that as it may, the considerations do differ greatly as between international organizations of a universal character, regional organizations, and those composed of a few or only two states.111 7 Conclusions In the early days of international organizations (from the nineteenth century through to the middle of the twentieth century) the position seems to have been at best unclear, but the general approach of states was to include any necessary provisions in the appropriate treaty (constituent instruments, or 109  Paragraph (7) of the General Commentary on the Articles on the Responsibility of International Organizations for Internationally Wrongful Acts: Report of the International Law Commission on the Work of its Sixty-third Session, Gen. Ass. Off. Recs., Sixty-sixth Session, Supp. No. 10 (UN Doc. A/66/10), pp. 69–172, at p. 70. See S. Bouwhuis, ‘The  International Law Commission’s Definition of International Organizations’ (2012) 9 International Organizations Law Review pp. 451–465; M. Wood, ‘“Weighing” the Articles on Responsibility of International Organizations’, in M. Ragazzi (ed.), The Responsibility of International Organizations (Essays in Memory of Sir Ian Brownlie) (2013), pp. 55–66. 110  Sands & Klein, supra note 8, p. 493, para. 15-039. Citing limited Dutch authority, the authors say that “[t]he customary foundation of immunities seems to be generally accepted for the UN only, in view of the constant treaty practice of granting immunity to that organization.” Dominicé, on the other hand, suggests that a rule of customary international law has come into existence as regards the United Nations and the specialized agencies, and possibly other international organizations: C. Dominicé, “L’immunité de juridiction et d’exécution des organisations internationales”, (1984-IV) 187 Recueil des Cours p. 145, at p. 220. The Third Restatement of the Law: Foreign Relations of the United States (1987), Vol. 1, para. 467 Comment (a) goes even further, referring to the UN, specialized agencies, and ‘regional and other major organizations’, such as the OAS. 111  But see Akande, who says that “[d]espite the impressive number of treaties providing for the privileges and immunities, there are remarkable similarities in their contents. This has permitted rules of customary international law to develop”: Akande, supra note 92. See also R. Higgins, Problems and Process. International Law and How We Use It (1993), pp. 90–93. An oft-cited example of an organization composed of two states is the Office France-Allemande pour la Jeunesse, the immunity of which (provided for in its constituent instrument) was recognized by the Court of Appeal of Paris, 18 June 1968, Judgment, JCP 1969, II, 15725 (72 ILR 191).

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separate agreement or protocol or headquarters agreement). Nothing since then has altered the position. While one still comes across assertions, by writers, governments or courts, that international organizations enjoy immunity under customary international law, the authorities relied upon are largely unconvincing. While the materials examined are limited, and more research of the law and practice of other states and organizations would be needed for a comprehensive study, it is believed that the most prominent materials have been covered, involving many of the principal host states. From these materials, it cannot be said that there is ‘a general practice accepted as law’ establishing a customary rule of immunity. There nevertheless remains a debate, particularly among writers, as to whether international organizations enjoy immunity under customary international law, at least vis-à-vis their member states. Notwithstanding certain pronouncements of domestic courts, generally obiter, to the effect that organizations do enjoy immunity under customary international law, on the basis of the materials examined in this chapter it would be difficult to conclude that any such rule exists. In addition to entering into treaties, it remains possible that a state may undertake, in some legally binding manner, to accord immunity to an international organization through its unilateral statements or conduct. Such cases are likely to be rare, and would depend upon the particular facts. Questions of good faith may also come into play. In any event, what would be involved would be the operation of such principles of international law as binding unilateral declarations of states or estoppel, not a rule of immunity under general customary international law. The conclusion that an international organization does not enjoy immunity does not, of course, mean that its acts are justiciable in the domestic courts. There may be reasons other than immunity why national courts should not inquire into the acts of international organizations: in particular, it is not, generally, for the domestic courts to determine the legality of such acts under the internal law of the organization. That question goes beyond the scope of the present topic.112 Finally, one general observation may be in order. It is important, in this field as in others, to distinguish the law as it is, and the law as one would want it to be. Domestic judges sometimes fail to make this distinction; yet they do not have the competence to change the law, even in the interest of what they see as

112  There is an extensive literature: see, e.g., A. Reinisch (ed.), Challenging Acts of International Organizations before National Courts (2010).

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some higher justice. The invocation of ‘values and principles’ in order to justify applying new rules of international law is hardly a legitimate tactic.113 It is often a cover for the law-applier’s personal preferences, which should have no place in the judicial function in the field of international law.114

113  Saunders, supra note 54, pp. 78–81. 114  Sands & Klein, supra note 8, pp. 494–495, para. 15.045; pp. 498–499, paras. 15.053–15.054. It will be recalled that Lord Hoffman, referring to academic comment suggesting that the Italian Supreme Court in Ferrini had “given priority to the values embodied in the prohibition or torture over the values and policies of the rules of State immunity”, expressed the view that “if the case had been concerned with domestic law, [this] might have been regarded by some as ‘activist’ but would have been well within the judicial function. … But the same approach cannot be adopted in international law, which is based upon the common consent of nations. It is not for a national court to ‘develop’ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.’’ See Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya; Mitchell and others v. Al-Dali and others and Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya [2006] UKHL 26, at para. 63.

chapter 4

Should the 2004 UN State Immunity Convention Serve as a Model/Starting Point for a Future UN Convention on the Immunity of International Organizations? Philippa Webb* Abstract This paper argues that the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property should not serve as a model for a new convention with regard to international organizations. It has been suggested that there would be some advantages in preparing a draft convention on the jurisdictional immunity of international organizations: it would make the law governing the immunities of international organizations more ‘easily ascertainable’; a convention would progressively develop the law; and it would make a useful counterpart and parallel convention to the 2004  convention. However, this paper contends that each of these reasons—while appealing from the perspective of harmonization and a notion of an accessible and predictable international ‘rule of law’—does not overcome the problems of principle, practice and precedent. However, the immunities afforded to state officials may have  greater value as a model for the immunities of officials of international organizations.

Keywords immunities of international organizations – model convention – jurisdictional immunity of states

* Co-author with Lady Hazel Fox QC of the Third Edition of The Law of State Immunity (Oxford University Press, London, 2013). I am grateful to Lady Hazel Fox QC, Amal Alamuddin, Peter Quayle and Ingrid Barnsley for comments on earlier drafts and to Katarzyna Lasinska for excellent research assistance.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004296060_005

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1 Introduction Harmonization, integration or coherence is typically a desirable policy goal in international law.1 There is value in treating like cases alike and, where possible, treating different international actors in a consistent manner. However, with the immunity of international organizations, harmonization should not be the goal and the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (‘UNCSI’)2 should not serve as a model for a new convention with regard to international organizations. This is not to say the traditional rules on the immunity of international organizations are satisfactory. But a parallel convention of a generic nature is not the answer. In taking this position, I respectfully depart from what Judge Hammarskjold suggested in 1954 (“la règlementation générique est dans l’air”)3 and from what Judge Gaja observed in 2006.4 Judge Gaja noted that the International Law Commission (‘ILC’) had taken up parallel studies with regard to international organizations in the fields of treaties and responsibility. He said that the adoption of UNCSI “gives the opportunity for the Commission to reconsider whether it should undertake a study of the jurisdictional immunity of international organizations”.5 Judge Gaja pointed out three advantages of preparing a draft convention.6 First, it would make the law governing the immunities of international organizations more “easily ascertainable” due to the number of instances in which the treaties concerning the immunities of international organizations do not apply and the very general character of most treaty provisions. Second, such a convention would progressively develop the law, especially in 1 See Philippa Webb, International Judicial Integration and Fragmentation (Oxford University Press, London, 2013). 2 Opened for signature 2 December 2004, UN Doc. A/59/508, Annex (not yet in force). 3 A. Hammerskjöld, ‘Les immunités des personnes investies de fonctions internationales’, (1936-II) 56 Recueil des Cours pp. 107–211, at p. 194. 4 The subject of immunities of international organizations was on the agenda of the ILC for 30 years, but the Draft Articles were not referred back to the plenary from the Drafting Committee and the ILC decided in 1992 to put the topic aside for the moment as it did “not seem to respond to a pressing need of States or of international organisations”: Yearbook of the ILC (‘YILC’), 1992, Vol II, UN Doc. A/CN.4/SER.A/1992/Add.l (Part 2), p. 53, para. 362. See further the contribution of Johan Lammers to this volume; and see also the 1924 Vienna Resolution of the Institut de droit international (L’interprétation de l’article 7, alinéa 4, du Pacte de la Société des Nations) and the 1957 Amsterdam Resolution (Recours judiciaire à instituer contre les décisions d’organes internationaux). 5 YILC 2006, UN Doc. A/61/10, p. 455. 6  Ibid., p. 458.

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the light of the increased importance of economic activities of international organizations. Third, and more implicitly, there was the benefit of having a parallel convention that would ‘apply alongside’ UNCSI. Each of these reasons—while appealing from the perspective of harmonization and a notion of an accessible and predictable international ‘rule of law’— do not overcome the problems of principle, practice and precedent. 2 Principle It is obvious that international organizations are quite different to states and that they can also be quite different from each other. First, international organizations have no territory or population and can only perform their functions on territory over which a state exercises jurisdiction and through persons who are linked to a state by a bond of nationality. Second, a state enjoys sovereignty, whereas an international organization only has ‘competence’, which is delimited by its functions.7 As the International Court of Justice (‘ICJ’) has stated: International organizations are governed by the ‘principle of speciality’… [T]hey are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.8 Third, the sovereign equality of states is a fundamental principle of international law.9 Obviously, no such principle of equality exists between states and international organizations; it also does not exist between international organizations.10 International organizations may have near-universal membership (such as the United Nations) or only a handful of members (e.g., the Mekong River Commission); they might have extensive competences and binding powers (the 7 8

9 10

The international organization is the delegate/creature of the states that create it by treaty. Legality of the use by a State of nuclear weapons in armed conflicts, International Court of Justice, Advisory Opinion, ICJ Reports 1996, p. 78, para. 25. Sovereignty being open-ended permits the state to assume control over newly discovered or invented areas (cyberspace) whereas an international organization is constrained by its constituent treaty. The member states must amend the treaty or a new international organization has to be created. UN Charter, Art 2(1). H.G. Schermers & N.M. Blokker, International Institutional Law (5th ed.) (Brill, Leiden, 2012) p. 22.

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European Union) or very limited functions (the International Copper Study Group);11 they might be clearly established as an international organization (such as the Organization for Economic Cooperation and Development or ‘OECD’), or their status may be implicit (like the International Energy Agency or ‘IEA’).12 Diversity and inequality cut along two axes: between states and organizations, and among organizations themselves by virtue of the different competencies granted to them by states in their constituent instruments. These differences raise two problems of principle in the context of immunities: the inapplicability of the restrictive doctrine and the notion of sovereign equality. First, the restrictive doctrine of state immunity is not applicable to international organizations. This doctrine is enshrined in UNCSI and it has been recognised as customary international law by various courts, with the stark exception of the Hong Kong Court of Final Appeal.13 Recently, the European Court of Human Rights held in the Oleykinov case that the restrictive doctrine applied under customary international law to a state (Russia) that had not ratified UNCSI, but had not opposed it either.14 UNCSI, similar to the European Convention on State Immunity and much national legislation, treats immunity as a general rule and defines the exceptions

11

Examples taken from ibid. See also Kirsten Schmalenbach, ‘International Organizations or Institutions, General Aspects’, in Rudiger Wolfrum (ed) (2012) Max Planck Encyclopedia of Public International Law paras. 12–18. 12 The IEA is an interesting example. It was created through two instruments. The first was an OECD Council decision establishing the IEA as an ‘autonomous body within the framework’ of the OECD (15 November 1974). The second was an Agreement on an International Energy Program (‘IEP Agreement’) (signed 18 November 1974), which provided that a program would be carried out through an ‘autonomous agency’ of the OECD. The language usually used by states that the parties “hereby establish an international organization to be known as…” does not appear in either instrument. The IEP Agreement does not create an international organisation, it creates a programme, while it is the OECD Council decision that provides for an institution as such. There is arguably a third founding instrument of the IEA: a decision (or pre-decision) of the Governing Board linking the International Energy Program to the IEA as created by the OECD Council decision. Nonetheless, the IEA considers itself an international organization and is recognized by other bodies (such as the United Nations Framework Convention on Climate Change) as an international organization separate from the OECD. See R. Scott, The History of the International Energy Agency 1974–1994 (OECD/IEA, Paris, 1994) Vol. I, Chapter II. 13 FG Hemisphere Associates LLC v. Democratic of the Congo & Ors, Hong Kong Court of Final Appeal, FACV 5-7/2010. 14  Oleykinov v Russia, 13 March 2013, European Court of Human Rights, no. 36703/04, para. 66.

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as acts of a private law or commercial nature. The features of UNCSI do not translate to international organizations because their immunities are based on function, not the commercial or private law character of the act.15 The distinction between acts jure imperii and jure gestionis has little relevance in determining the scope of the immunities of an international organizations. The question is not whether an international organization acted in the exercise of sovereign powers, but whether the activity was necessary for the effective functioning of the organization.16 In the well-known EMBL case, the question was whether the operation of a guest-house and canteen could be taxed by Germany. The Arbitration Tribunal took as its starting point whether the activities were part of the European Molecular Biology Laboratory’s functions and therefore ‘official’. It found that the conduct of scientific seminars was an official activity, as were the meals and accommodation provided to participants. However, where the supply of meals and accommodation was for profit this was not an official activity because the Establishing Agreement did not include the sale of goods and services as a function of EMBL.17 We can see the different role played by the commercial nature of the activity in the Tribunal’s analysis as compared to a case involving state immunity.18 Functional necessity is open to interpretation, but it is more relevant to the nature of international organizations than the jure imperii/gestionis distinction.19 When courts have tried to apply that distinction to international organizations it has led to odd results. In the Iran-US Claims Tribunal v AS (an employment dispute), the local court of the Hague found the translation

15

16 17 18

19

See M. Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, (1995–1996) 36 Vanderbilt Journal of International Law p. 53. A.S. Muller, International Organizations and their Host States: Aspects of their Legal Relationship (Brill, Leiden, 1995) p. 153. EMBL v Germany, Arbitration Award, 105 ILR 1 (1997). But cf. the Army and Air Force Exchange Service, the US Armed Forces ‘for profit’ supermarket that sets up at military bases, which the US always (successfully) argued benefits from jure imperii immunity. The use of private hire cars for diplomats attending the UN and the cost of phone calls used for private purposes are also modern examples of the difficulties in applying the commercial activity test. It may be possible to redefine jure imperii and jure gestionis in the context of IOs as the former applying to IO functions or official acts and the latter applying to operational matters. This would however be a departure from the existing jurisprudence on state immunity and could lead to terminological confusion.

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activities were not acta jure imperii though the District Court and Supreme Court found that they were “clearly connected with acta jure imperii”.20 In any event, UNCSI is not a good model for the commercial exception that underpins the restrictive doctrine due to its confused approach. Article 2(2) of the UNSCI states: In determining whether a contract or transaction is a ‘commercial transaction’…reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if…in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction. As a piece of drafting, this is “highly unsatisfactory” because it mixes nature/ purpose and subject/objective; the reference to practice is wider than to the “law of the forum State” and would seem to permit administrative practice or even the declaration of an official to determine the immune nature of the transaction.21 I now come to the second point of principle: the inapplicability to international organizations of the principle of sovereign equality (a principle that is admittedly more theoretical than real).22 International organizations are diverse and there is no principle that they should be treated equally. Moreover, the principle of reciprocity, which is important to the operation of state immunity,23 finds no place with respect to international organizations. 20

94 ILR 321–330. The European Commission on Human Rights found that a grant of immunity did not give ‘rise to an issue’ under the ECHR (Spaans v Netherlands, 107 ILR 1, at 5). See also the Zimbabwe Supreme Court applied the jure imperii/gestionis distinction to the ICRC in an employment case, holding that the doctrine of restrictive immunity applies to it and employment was an issue of private law character. “It could hardly have been the intention of the Legislature to grant absolute immunity from suit and legal process to such an organisation when a foreign sovereign did not enjoy such immunity”: ICRC v Sibanda (2007) 28 ILJ p. 738, at p. 744. 21  H. Fox & P. Webb, The Law of State Immunity (3rd ed.) (Oxford University Press, London, 2013) p. 416. 22 Admittedly, politically there are one or two states enjoying superior powers in practice— cf. Robert Cooper’s identification of post-modern, super state, super power and failed state in R. Cooper, ‘The Post-Modern State’, in M. Leonard (ed.), Re-Ordering the World: The LongTerm Implications of September 11th (Foreign Policy Centre, London, 2002) pp. 11–20. 23 It is critical to diplomatic immunity. Its importance to state immunity may vary. Taking the ICJ Jurisdictional Immunities case as an example, Germany would still have invoked immunity before Italian courts even if Italy had waived its own immunity before German courts.

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One of the main purposes of drafting a convention is to harmonize legal principles; this was certainly the intention behind UNCSI. But in the case of international organizations, harmonization is neither a desirable nor realistic outcome. The functions and features of international organizations are too specific for universally applicable rules; and if we try to develop such rules, they will necessarily be too general to be useful in solving contentious disputes and establishing best practices.24 One example is provided by the international financial institutions, such as the World Bank, the International Monetary Fund, and regional development banks: their main purpose is to lend and borrow and their constituent instruments contain broad waivers in favour of third party transactions in order to attract lender confidence. This waiver tends to pertain to suits by private parties, not member states.25 Such waivers are not found in agreements with respect to international organizations with more general functions (United Nations) or different, non-financial functions (Organization of African Unity, or the North Atlantic Treaty Organization or ‘NATO’). Moreover, the complex and specific relationship between an international organization and its host state is difficult to codify in general terms and is probably better addressed on a bilateral basis.26 The 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character has failed to enter into force, which confirms this assumption.27 The Netherlands, a major host state, is not a party to the Convention. In an international organization-host state relationship, there is the possibility of conflicts arising between the obligations in the headquarters agreement, 24  Bekker suggested that since privileges and immunities have to be tailored to the specific characteristics of the IO concerned, the adoption of ‘Model Rules on Organizational Immunities’ might prove more successful than a multilateral convention: P. Bekker, ‘The Work of The International Law Commission on “Relations between States and International Organizations” Discontinued: an Assessment’ (1993) 6 Leiden Journal of International Law p. 3, at p. 12. 25 See, e.g., Art. VII, Section 3 of the IBRD Articles of Agreement; A. Reinisch & J. Wurm, ‘International Financial Institutions before National Courts’, in D. Bradlow and D. Hunter (eds.), International Financial Institutions before National Courts (Kluwer Law International, Alphen aan den Rijn, 2010) p. 103, at p. 105. 26 The majority of international organizations are located in a select number of developed states, which may make negotiations difficult. The host state may seek to apply the same rules to all international organizations on its territory, which is not necessarily in the interests of the individual international organizations. 27  34 parties have ratified the Convention, which requires 35 ratifying parties to enter into force. The last ratification was in 2008. Key host states have not ratified it.

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the obligations in the treaty establishing the international organizations, and other obligations of the host state under international law (such as human rights law) and its national law (including labour and tax laws). There has to be a balance struck between the international organization’s need for maximum independence28 for its functions within the host state’s legal order and the host state’s compliance with its legal obligations, including providing redress to persons within its jurisdiction affected by the international organization’s activities. In some cases, an international organization will operate almost entirely within one member state and have a small or fairly uniform group of officials: here, a simple headquarters agreement will be sufficient. In other cases, an international organization, such as an international court, will have constant movement of its officials and visitors across borders; it will have experts on mission, detainees, witnesses, delegates, victims, and counsel; there will be confidentiality issues, maintenance of detention facilities, possibly asylum claims. A detailed, carefully negotiated document or an intermittent exchange of letters or instruments will be appropriate. 3 Practice Some of these problems of principle can be illustrated by practice. In preparing the third edition of The Law of State Immunity, it has been striking how the case law on employment disputes involving states and international organizations has grown in recent years. Unlike with state immunity, there is no alternative national jurisdiction to which claims against international organizations are first to be referred, and unlike diplomatic immunity, officials of an international organization, regardless of their nationality, enjoy full immunities against both the host state and the state of their nationality. Whereas state and diplomatic immunity is ensured through the operation of the principle of reciprocity, the sanction for an international organization lies in its own treaty system and enforcement of its obligations by the member states of the organization.29 28

29

A. von Bogdandy & I. Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers (2011) 12 German Law Journal pp. 979–1004, a copy of which is available via the Journal’s website at: . Similar issues were discussed by R. Collins in a paper presented at the British Branch ILA Conference, 12–13 April 2013. P. Sands & P. Klein, Bowett’s Law of International Institutions (6th ed.) (2009) at para. 15-035.

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In UNSCI, Article 11 (the employment contract exception), states have a starting point for a solution by which they may accommodate their human rights obligations to individuals employed to work within their territory and at the same time honour their international obligations towards sending states. But to what extent can it help with employment disputes involving international organizations? If we look at Article 11, there are notions that are state-centric. Immunity is retained if: the employee “performs particular functions in the exercise of governmental authority”; “the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State”; and the employee is a national of the employer state at the time the proceeding is instituted, unless this person has permanent residence in the forum state. How do we translate these criteria to international organizations? Only a few organizations would have ‘security interests’ (such as NATO) or powers analogous to governmental authority (UN territorial administration). An international organization does not have a territory or a bond of nationality with its staff: it has no ‘nationals’. The famous case on this issue is Waite and Kennedy, which in fact involved contractors suing the territorial state (Germany) for dismissing their claim regarding an employment contract with the European Space Agency (‘ESA’). The Court invoked the idea that “a material factor” in determining whether granting the ESA immunity was permissible under the European Convention on Human Rights (‘ECHR’) was whether the applicants “had available to them reasonable alternative means to protect effectively their rights under the Convention”.30 This raises a variety of issues. What constitutes ‘reasonable alternative means’? Is the yardstick national labour law, international law developed for states, the international organization’s own internal administrative law, or the law contained in the relevant headquarters agreement and constituent instrument? How far can a national court inquire into the effectiveness of an international organization’s internal dispute resolution mechanism without encroaching on its independence? Can a national court, in seeking to comply with state obligations under a regional human rights treaty, require compliance with the same obligations from an international organization composed of member states that are not parties to 30  Waite and Kennedy v Germany, 18 February 1999, European Court of Human Rights, no. 26083/94, 118 ILR p. 121. See further the contributions of Eric De Brabandere, Thomas Henquet and August Reinisch to this volume.

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the regional treaty? The international organization may have no link with the ECHR other than having signed a headquarters agreement with a contracting party to the Convention. Unsurprisingly, different courts have been reaching different conclusions. US courts have held employment by international organizations to be immune while some French courts along with Italian, Swiss and Belgian courts have assessed the internal justice systems of certain international organizations (and generally found them to be adequate). The French Cour de Cassation has assessed compatibility with “la conception francaise de l’ordre public international”, whereas Supreme Courts in Italy and Switzerland have used Article 6(1) of the ECHR.31 A UK Court has found that a right of access to court in the Article 6(1) was not applicable to the United Nations Economic, Scientific and Cultural Organization (‘UNESCO’), pointing out that it is an international organization founded by an international instrument concluded prior to the ECHR and to which 115 states were parties, a number far in excess of the 47 parties to the ECHR.32 Stepping back from this confusing practice, there is a genuine concern about the immunities of international organizations, as expressed in the theme statement for this compilation: why exclude activities of international organizations from judicial review, while this is not the case for similar activities of states? This is a valid question. One need only look at the United Nations’ behaviour with respect to the cholera epidemic in Haiti triggered by Nepalese peacekeepers.33 But I do not believe the solution will be found in a general treaty on the immunities of international organizations. Accountability can be achieved in other ways. As Wickremasinghe has observed, the jurisdictional immunities of international organizations are not antithetical to calls for greater accountability.34 They can co-exist. First, where its functions are not hindered by a court ruling, waiver of immunity by an international organization provides a practical solution: this can be set out in 31

L’immunite de jurisdiction de l’UNESCO Soc, 11 February 2009 (noting also UNESCO was not a party to the ECHR); cf Pistelli v EUI (2006); Consortium X v Swiss Federal Govt. (2004). 32  Entico v UNESCO and Secretary of State for Foreign and Commonwealth Affairs (2008) EWHC 531 (Comm). 33 The US-Haiti Status of Forces Agreement grants troops immunity from civil and criminal courts. For a good overview of the legal arguments, see Yale Law School, Yale School of Public Health and Association Haitienne de Droit de L’Environnment, Peacekeeping without Accountability The United Nations’ Responsibility for the Haitian Cholera Epidemic (2013), available at (last visited 23 September 2013). 34  Paper presented at the British Branch ILA Conference, 12–13 April 2013.

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a headquarters agreement or decided on an ad hoc basis by the head of the relevant organization.35 There may be statutory guidance: for example, the President of the European Bank for Reconstruction and Development (‘EBRD’) must waive immunity if the interests of the organization require.36 Second, an international organization may undertake to comply with human rights obligations and waive their immunity by signing up to law-making treaties (the EU’s potential accession to the ECHR). Third, international organizations must develop internal justice systems for employment disputes; and it would also be advisable to develop such systems for externally affected parties. Many organizations already have sophisticated procedures in place (such as the World Bank Inspection Panel, United Nations reformed internal justice system, and International Labour Organization’s Administrative Tribunal (‘ILOAT’) system). What is just as important, however, is implementation: the UN Model Status of Forces Agreement states that claims commissions will handle private law disputes against peacekeeping missions,37 but these are never established in practice. 4 Precedent Apart from the problems of principle and warning signs from practice, a UN Convention on the Immunities of international organizations does not have strong precedents. Attempts to extend state-based principles to international organizations have not been very successful. The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations has 42 parties and is not yet in force.38 The ILC Draft Articles on the Responsibility of International Organizations 2011, which closely follow the Articles on the Responsibility of States, have attracted significant criticism from international organizations as 35  Fox & Webb, supra note 20, Chapter 19. 36 Art. 55 of the Agreement Establishing the European Bank for Reconstruction and Development: the Board (i.e. the state members) can waive any of the EBRD’s privileges and immunities if “in the best interests” of the EBRD; the President has a “duty” to waive officials’ privileges and immunities if otherwise those immunities “would impede the course of justice”. 37  Art. 51 of the UN Model Status of Forces Agreement, which is extracted in the Report of the Secretary-General: Comprehensive Review of the Whole Question of Peace-keeping Operations in All Their Aspects, 9 October 1990, UN Doc. A/45/594. 38 35 ratifications by states required but only 29 have been received; international organizations are not counted for purposes of the entry into force of the Convention.

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well as academics, who point to articles that are not grounded in actual international organization practice, as well as those that contain strange wording and concepts.39 One could argue that the rules on treaties are less susceptible to the diversity of international organizations: similar rules on ratification, authentication  and powers and can be applied to small/large, regional/international, technical/multi-functional organizations. Responsibility raises more problems given variations in internal decision-making and allocation of competencies among member states and international organizations, but there is still room for common ground. One could say there is a spectrum—from treaties to responsibility to immunities—where parallels between state and international organizations become less and less tenable.40 Finally, let us not forget that UNCSI itself is not yet in force. It had only 15 of the required 30 ratifications at the time of writing, even after all the negotiations and all the compromises leading up the Convention. Let me end on a more constructive point: the immunities afforded to state officials—on which the ILC has done, and is doing, much codification work41— may have greater value as a model for the immunities of officials of international organizations. 39

For example, Art. 61—which provides responsibility for an international organization where a member state circumvents an international obligation by causing an international organization to commit an act that if committed by the state would have constituted a breach of the obligation—does not appear to have any basis in the practice of international organizations. For a critique, see, e.g., Kristen Boon, ‘New Directions in Responsibility: Assessing the International Law Commission’s Draft Articles on the Responsibility of International Organizations’ (2011) 37 Yale Journal of International Law Online p. 1. 40  An interesting case study of the differences between IOs and states in terms of both responsibility and immunities is the Dutchbat judgment of the Supreme Court of The Netherlands, which held that there could be dual attribution of conduct, namely that it was possible that both the Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to the Netherlands did not in any way determine whether the UN also had effective control (Netherlands v Nuhanovic, 6 September 2013, First Chamber, para. 3.11.2). At the same time, the Supreme Court has held the UN to be immune from jurisdiction: Mothers of Srebrenica v Netherlands, 13 April 2012, First Division. See further the contribution of Thomas Henquet to this volume. 41  1961 Vienna Convention on Diplomatic Relations, opened for signature on 18 April 1961, 500 UNTS p. 95 (entered into force 24 April 1964); 1963 Vienna Convention on Consular Relations, opened for signature on 24 April 1963, 596 UNTS p. 261 (entered into force 19 March 1967); 1969 Convention on Special Missions, opened for signature on 8 December 1969, 1400 UNTS p. 231 (entered into force 21 June 1985) and the ILC’s current work on the

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There is much common ground between officials who work for a state and those who work for an international organization. Indeed, diplomatic law generated by states has provided inspiration for the immunities granted to the officials of international organizations.42 Most officials of international organizations enjoy immunity from jurisdictional ratione materiae, while the most senior officials—such as the Secretary-General and the Under SecretariesGeneral of the United Nations—may be accorded ambassadorial status and enjoy equivalent immunities ratione personae.43 There are two key differences between diplomats and officials and international organizations. First, as noted above, officials of international organizations enjoy full immunities against both the host state and the state of their nationality, whereas a diplomat has no immunity in respect of his/her national state. Secondly, while the principle of reciprocity underpins diplomatic practice, it is inapplicable to international organizations and their officials. These differences are, however, shared by all international organizations, which would facilitate codification of their immunities in a single instrument.

immunity of foreign state officials from criminal jurisdiction. See also the 1946 Conven­ tion  on the Privileges and Immunities of the United Nations, opened for signature on 13 February 1946, 1 UNTS p. 15 (entered into force 17 September 1946). The treaty practice is more uniform in this area. 42  C. Wickremasinghe, ‘Immunity of State Officials and International Organizations’ in M. Evans (ed.), International Law (Oxford University Press, Oxford, 2010) (3rd ed.) p. 398. The immunities of officials of international organizations are contained in various treaties, including conventions on privileges and immunities specific to a certain international organizations, constituent instruments, and host state agreements. 43  The Judges of the International Court of Justice and the Judges and Prosecutor of the International Criminal Court also enjoy this status: see Art 19 of the Statute of the International Court of Justice; see also Art. 15 of the Agreement on the Privileges and Immunities of the International Criminal Court.

chapter 5

Immunity of the United Nations: Practice and Challenges Bruce C. Rashkow Abstract The immunity enjoyed by the United Nations is fundamental to it being able to fulfill the many functions it is assigned under the United Nations Charter. As the responsibilities of the United Nations have expanded over the years, the system of privileges and immunities it enjoys to shelter the organization from claims in domestic jurisdictions has been subject to challenges. This chapter analyzes the practice of the United Nations in dealing with claims against the organization, including with respect to existing dispute resolution mechanisms within the organization for addressing such claims, and recent challenges to its immunity, such as claims brought against the organization by the Mothers of Srebrenica and the Haiti cholera victims.

Keywords immunity – United Nations – challenges – dispute resolution – Convention on Privileges and Immunities – Mothers of Srebrenica – Haiti cholera victims

1 Introduction Since the creation of the United Nations (the ‘Organization’)—and even before with the creation of the League of Nations—the need for the Organization to enjoy immunity from the jurisdiction of member states has been widely recognized as necessary to achieve its important and far-ranging purposes. As the years and decades have passed and the role of the United Nations has grown, the practice and challenges relating to such immunity have also grown. Nevertheless, throughout the years, it has been understood that this immunity was not intended simply to shield the Organization from responsibility as a ‘good citizen’ on the world stage to respond to credible

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004296060_006

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claims against the Organization by third parties resulting from the activities or operations of the Organization. As demonstrated briefly below, the United Nations has largely achieved this objective of responding like a good citizen to credible claims, although two recent situations have raised questions about whether it continues to do so. The discussion below will: first, address the basic sources for the immunity of the Organization; second, provide an overview of the general practice of the Organization in terms of how it deals with claims against it; and finally, provide some comments on the issues raised about challenges to the United Nations’ immunity in today’s world, particularly in light of the recent decisions of the Organization to decline responsibility in regard to claims by the Mothers of Srebrenica and Haiti cholera victims. 2

From Where Does the Immunity of the United Nations Spring?

Article 105 of the United Nations Charter and the Convention on the Privileges and Immunities of the United Nations establish the fundamental basis for the United Nations’ immunity from state jurisdiction. However, this immunity as it applies to particular circumstances has been elaborated in a variety of issuances by the United Nations and agreements with member states. Article 105 of the Charter provides that “[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.” It further provides that “[t]he General Assembly may make recommendations with a view to determining the details of the application” of these immunities “or may propose conventions to the Members of the United Nations for this purpose.”1 Shortly after the establishment of the Organization, the General Assembly adopted the Convention on the Privileges and Immunities of the United Nations (the ‘General Convention’).2 The General Convention contains provisions detailing how that immunity applies to the Organization, its property and facilities, representatives of member states, officials, experts on missions for the United Nations and the settlement of disputes. These provisions provide broad immunity to the Organization and its officials against any effort by its staff and officials or third parties to bring actions against the Organization in the courts of member states. 1 UN Charter, Article 105(1), (3). 2 Opened for signature 13 February 1946, 1 UNTS p. 15 (entered into force 17 September 1946).

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However, in providing such broad immunity, the General Convention in Section 29 also provides that “[t]he United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party…”. In addition, Section  30 of the General Convention provides that “[a]ll differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement.” It further provides that “[i]f a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.” The immunity of the Organization has been further elaborated in agreements with member states, most notably by the members that host the four headquarters of the Organization or United Nations regional or country-specific operations. The principal headquarters of the Organization is located in the United States. The United Nations entered into a host country agreement with the United States.3 The Host Country Agreement contains a number of provisions relating generally to the immunity of the Organization, its officials and representatives of member states. None of these provisions expressly address the immunity of the Organization in relation to claims by third parties against the Organization. However, the Agreement contains provisions addressing the application of United States law. Those provisions permit the General Assembly to promulgate regulations for the headquarters that supplant any otherwise applicable federal, state or local law.4

3 Agreement between the United Nations and the United States Regarding the Headquarters of the United Nations, concluded 26 June 1947, 211 UNTS p. 11 (entered into force 21 October 1947) (the ‘US Host Country Agreement’). 4 US Host Country Agreement, Sections 7 and 8. The General Assembly has adopted four such regulations. See General Assembly Resolution 604 (VI), 1 February 1952; General Assembly Resolution 41/10, 11 December 1986.

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Overview of General Practice

3.1 Introduction In the last 65 years or so, the United Nations has interpreted its immunity in a wide variety of circumstances and has taken action to minimize its exposure to challenges to that immunity or, if necessary, defend that immunity. As part of that process, many questions have arisen and have been addressed regarding the nature and scope of that immunity. Thus, questions as to the applicability of that immunity to staff and officials of the Organization have arisen in a variety of circumstances. For example, questions have arisen relating to the scope of the limited ‘official acts’ immunity applicable to most staff members and officials of the Organization. These cases have involved allegations of wrongdoing, including alleged crimes, where private individuals or member state authorities have sought to initiate civil legal proceeding or criminal prosecutions against such staff or officials in national courts.5 In respect of cases in which national law enforcement authorities seek to investigate or prosecute United Nations staff or officials or third parties that have done business with the Organization—sometimes at the request of the Organization—the United Nations has developed special procedures that often involve a two-stage process of waiving immunity. Thus the Organization in such cases often initially waives immunity only for purposes of assisting the national authorities at the investigation stage— for example in interviewing staff or officials or for access to Organization documents—while reserving the right, in principle, to assert immunity at the trial stage if national authorities determine to pursue the prosecution. Cases have also arisen in which member states have sought to impede the performance of United Nations staff or experts in the performance of their official duties. In two such instances, the Organization sought advisory opinions from the International Court of Justice (the ‘ICJ’). In both instances, the ICJ upheld the immunity of the Organization and the obligation of the governments involved to refrain from interfering with the performance of such official duties.6 In one of those cases, the ICJ clarified for the first time the high 5 See, e.g., Report of the Secretary-General, Practice of the Secretary-General in disciplinary matters and possible criminal behavior, 1 July 2011 to 30 June 2012 (A/67/171), 24 July 2012. 6 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, 15 December 1989, International Court of Justice, Advisory Opinion (‘Mazilu’); Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 29 April 1999, International Court of Justice, Advisory Opinion (‘Cumaraswarmy’).

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level of deference that national courts are to accord the decisions of the Secretary-General asserting immunity on behalf of the Organization.7 This discussion will focus generally on the different kinds of claims that staff and officials and third parties have routinely made against the Organization and for which immunity has been or would be asserted in the event such claims were brought in national courts. 3.2 Claims by Staff and Others Associated with the United Nations against the Organization These claims include claims by staff members for violation of the terms or conditions of their employment—in large measure dealing with hiring, retention and promotion of staff. These claims also include claims by staff against abusive action against them addressing a broad range of activities, some of an administrative nature, others of a more serious nature, for example sexual abuse. Finally, these claims include claims for personal injuries, death or damage to property suffered by staff members or officials as a result of the activities or operations of the Organization. Over the years, the Organization has put in place a number of internal administrative procedures to allow such staff members and officials to assert these claims and seek an amicable resolution. As with other grievances, the staff member or official has the right to appeal within the quasi-judicial internal justice system if not satisfied with the administrative outcome. The internal justice system has recently been comprehensively reformed to provide a robust mediation function through the establishment of an independent Ombudsman office and the expansion of the quasi-judicial system to make it more like the formal judicial systems found in member states—with both a trial court and an appellate court.8 The bottom line for the United Nations, however, is that staff members and officials are obligated to seek recourse within this internal system and have no recourse in these cases to litigation in national courts. Efforts to bring such actions in national courts have met with assertions of immunity and dismissals of the actions.

7 Cumaraswamy, para. 57. 8 UN Doc. A/RES/61/261; UN Doc. A/RES/62/228; UN Doc. A/RES/63/253; United Nations Secretary-General, Administration of justice at the United Nations (A/67/265); United Nations Secretary-General, Administration of Justice at the United Nations, (UN Doc. A/68/346). See also, United Nations Secretary-General, Activities of the Office of the United Nations Ombudsman and Mediation Service (UN Doc. A/68/158).

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3.3 Claims by Third Parties against the United Nations This is the area that is both the politically most sensitive and legally most challenging. These claims cover a broad range of claimants who allege to have been harmed in some way by the activities or operations of the United Nations, and generally divide into two categories: claims of a contractual nature and tort claims. Contract claims against the United Nations are normally straightforward, while tort claims, depending on the circumstances, can expose the Organization to the risk of embarrassment and criticism from member states, and the press or the public, unless carefully handled. At the outset, it is important to note that the Organization consistently and, for the most part, successfully seeks to amicably resolve all third party claims—both contractual and tort. In this respect, the Organization has developed a number of measures or processes for dealing with third party claims, depending on the nature of the claims or the situations in which they arise. 3.3.1 Third Party Contract Claims—Generally Individual consultants, contractors both large and small, and others who interact with the United Nations but are not staff members, e.g. volunteers, generally must seek to resolve their claims in some manner consistent with Section 29 of the General Convention, calling for a modality for resolving disputes of a private law character. This normally means an effort initially to amicably resolve the dispute administratively, e.g. by negotiated settlement. Failing such an amicable resolution, the parties would seek to resolve the dispute through arbitration, usually under the terms of the contract entered into with the Organization. Such arbitration does not in any way necessitate or call for waiver of immunity.9 This system has worked well over the years to avoid challenges in national courts. Of course, the opportunity for arbitration, while attractive and useful to large commercial entities with large claims, is not so attractive to individual contractors or consultants. The United Nations is considering revising its newly reformed internal justice system to address such small claimants that would offer Ombudsman services and/or some form of streamlined, inexpensive arbitration process more appropriate for such smaller claims.10

9

10

United Nations Secretary-General, Procedures in place for implementation of Article VII, Section  29, of the Convention on the Privileges and Immunities of the United Nations (A/C.5/49/65) (‘Dispute Settlement Report’). See UN Doc. A/67/265, supra note 8, Annexes IV and VI.

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3.3.2 Third Party Tort Claims—Generally Initially, when the United Nations was created and member states began to address the question of immunity in regard to torts, the focus was on automobile accidents involving United Nations vehicles or vehicles driven by UN staff or officials in the performance of official functions. To address this concern, the Organization obtained an insurance policy to deal with such claims around the world—wherever it has a presence.11 This system has worked effectively to insulate the Organization from such claims throughout the years. Over the years as the role of the United Nations expanded in the area of peacekeeping and other field missions, it became necessary or desirable for the Organization to obtain its own air carrier capability, routinely through charter arrangements with providers of the aircraft, rather than rely on services provided by commercial entities or even member states. Of course, with these charter arrangements, the United Nations became exposed to third party claims for injuries or damages resulting from the operation of the aircraft. In order to protect the Organization from the exposure to such a risk, which could be very substantial, the Organization required the companies with which it contracted for these aircraft to assume responsibility in the first instance for any claims and maintain ample insurance to cover such claims. In addition, recognizing that these measures might not be sufficient to protect the interests of the Organization in all cases, the Organization independently also obtained worldwide general policies to provide additional coverage for some of the major risks to property and personnel. These measures, like the measures taken to cover automobile accidents, have worked well over the years to insulate the Organization from such third party claims. This is not to say that the measures have prevented the occasional threat to seek recourse in national courts. There have been instances where because of limitations or exceptions contained in these insurance policies, the Organization has had to significantly augment the resources available under the policies to reach a settlement and deter the claimants from seeking recourse in national courts. Another category of third party claims for which the United Nations has taken measures to minimize its exposure to cases being brought before national courts are claims relating to injuries occurring at its principal Headquarters in New York. Originally, as with automobile accidents, the Organization obtained insurance to cover such claims, which worked well for many years to insulate the Organization from such claims. However, in the late 1980s, as a result of the increasing size of the claims being brought and the rising costs of such insurance, the Organization determined both to self-insure 11

See Dispute Settlement Report, para. 14; UN Doc. A/RES/22(I).

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against such claims as well as to minimize its exposure by limiting its liability for such claims. The General Assembly adopted a regulation in 1986 governing the Organization’s liability to visitors to the headquarters district that limits its liability to actual loss, which does not include pain and suffering, and precludes exemplary or punitive damages.12 This regulation in accordance with Section  8 of the Host Country Agreement supplants federal, state and local laws in regard to these claims, and has never been challenged. 3.3.3 Claims Resulting from the Activities of Operational Subsidiary Bodies of the United Nation in the Field In relation to third party claims resulting from the operations and activities of the United Nations operational programmes, such as the United Nations Development Programme (‘UNDP’) and the United Nations Children’s Fund (‘UNICEF’), the Organization routinely enters into agreements with the beneficiary states where such activities occur to hold harmless the Organization in respect of claims that may arise in relation to its activities.13 With respect to peacekeeping missions, the Organization has internal administrative processes in place to deal with claims against the Organization. Initially, these processes have included internal claims review boards, the decisions of which may be challenged by requests for further administrative review within the Organization.14 As a practical matter, these boards have worked well over the years to resolve claims on a day-to-day basis, even if at times their decisions have been administratively challenged. In addition, the Status of Forces Agreements (‘SOFAs’) with the states in which such peacekeeping missions take place also provide routinely for a standing claims commission, although throughout the history of United Nations peacekeeping missions no such commission has ever been established.15 12

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UN Doc. A/RES/41/210; see Paul Szasz, ‘The United Nations Legislates to Limit its Liability’ (1987) 81 American Journal of International Law p. 739; United Nations Juridical Yearbook (1996) pp. 462–463. See Report of the International Law Commission, The practice of the United Nations, the specialized agencies and the Atomic Energy Agency concerning their status, privileges and immunities (1967, Vol. II, UN Doc. A/CN.4/L.118 and Add 1 and 2), para. 45 (‘ILC Report on privileges and immunities of the UN’); ILC Report on privileges and immunities of the UN (1985, Vol. II/Add.1, UN Doc. A/CN.4/L.383 and Add.1-3). See ST/AI/149/Rev 4, paras. 16–18; United Nations Secretary-General, Administrative and Budgetary Aspects of Financing of the United Nations Peacekeeping Operations (UN Doc. A/51/389), paras. 20–37 (‘Peacekeeping Liability Regime Report I’). See Peacekeeping Liability Regime Report I, supra note 14; United Nations SecretaryGeneral, Administrative and budgetary aspects of financing of United Nations peacekeeping

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Over the years, for one reason or another, tort claims have usually been amicably resolved—without recourse to arbitration. That said, occasionally, the Organization has been sued or threatened to be sued in a national court. Such suits are inevitably either amicably resolved or dismissed on the basis of the Organization’s immunity. While the measures and processes that I have described generally address the Organization’s exposure to third party claims, in the late 1990s, in response to the growth in peacekeeping missions and related claims, the Organization adopted a special regime to deal specifically with third party contract and tort claims arising in the context of such missions.16 The Organization went to great lengths in designing this regime to balance the obligations of United Nations peacekeeping missions to respond to third party claims with the obligations of the host country that invited such mission into the country to assume some responsibility in principle for such claims. That balance resulted in certain types of claims being excluded altogether and limits being set on the damages for which the Organization would be liable in relation to certain contract and tort claims. The Organization established these financial limitations with the understanding that the host country would ultimately be responsible for compensation, if any, beyond these limits. The regime excludes liability altogether for claims resulting from or attributable to activities of UN peacekeepers arising from ‘operational necessity’.17 The concept of ‘operational necessity’ developed specifically in connection with United Nations peacekeeping operations, and is to be distinguished from the more traditional concept of ‘military necessity’.18 Notably, the concept of ‘military necessity’, governed by the laws of war, remains under the new regime as an exemption from liability specifically relating to combat operations.19 The new regime imposes temporal and financial limitations on the liability of the Organization in terms of personal injury, illness or death and for property damage resulting from or attributable to the activities of peacekeeping missions in the performance of their official duties.20 In this last respect, it also excludes certain kinds of damages, e.g., non-economic loss.

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operations: financing of United Nations peacekeeping operations (UN Doc. A/51/903) (‘Peacekeeping Liability Regime Report II’). See Peacekeeping Liability Regime Reports I and II, supra notes 14–15; UN Doc. A/Res/52/247. See A/Res/52/247, para. 6, as defined in para. 14 of the Peacekeeping Liability Regime Report I, supra note 14. See Peacekeeping Liability Regime Report I, ibid., para. 16. See ibid., note. 3. See, e.g., Peacekeeping Liability Regime Report II, supra note 15, para. 13.

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The new regime recognizes that third party claims may continue to be addressed, as they have in the past, by local claims review boards. It also preserves the long-standing but never invoked option under SOFA arrangements for the establishment of a standing claims commission.21 4 Challenges for the United Nations Today, following Mothers of Srebrenica and Haiti The Organization has over the years largely succeeded in avoiding the need to assert immunity in regard to claims of a private law character by United Nations staff and officials and third parties based in great part on the measures and processes described above. That does not mean that there have not been issues. For example, there have been sensitive tort cases where litigation in national courts was threatened and that implicated not only the United Nations but also other entities with which the United Nations has partnered, requiring the coordination of multiple parties. Notably the interests, positions and immunity of these other entities were not always the same as that of the United Nations. These included a case of a wrongful death claim against the Organization by a defendant before the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) who was in the custody of a jail operated by a member state on behalf of the Organization at the time of his death. Another case involved wrongful death claims against the United Nations by relatives of a number of passengers on an aircraft chartered on behalf of the United Nations by the World Food Programme that crashed allegedly due to negligence by NATO air controllers operating as part of the UNPROFOR mission. Even where the United Nations is the sole respondent to a claim, there can be sensitive and difficult issues where the UN is threatened with legal action before national courts. This was the case with some of the third party claimants in connection with the bombing of the United Nations headquarters in Baghdad, for example, claims by visitors to that headquarters at the time of the bombing. Nonetheless, all of these cases were, in the end, settled amicably— although some of these settlements may have prompted questions in certain quarters whether they were overly generous in an effort to avoid the filing of claims in national courts or, possibly, further controversy and adverse publicity. 21

See ibid., para. 43.

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Underlying the efforts of the Organization throughout the years to amicably settle third party claims is the desire or goal of the United Nations not only to be a good citizen on the world stage—to be fundamentally fair in dealing with individuals injured in some manner as a direct result of United Nations actions22—but also to avoid bad publicity. However, with the increase in peacekeeping activities and the evolution of more robust peacekeeping mandates since the end of the Cold War, the realities of such a more active engagement are raising new challenges. These challenges are perhaps most clearly reflected in the decisions of the United Nations in invoking immunity in the face of claims by the Mothers of Srebrenica and the Haitian cholera victims. On the one hand, with the Mothers of Srebrenica, the issue is the failure of United Nations forces to protect innocent civilians from almost certain death in the face of a policy, if not mandate, to provide such protection. On the other hand, with the Haitian cholera victims, there is the issue of the purported negligence of the United Nations in failing to adequately screen troops for cholera prior to deployment in Haiti or to properly maintain waste treatment facilities utilized by such troops that arguably caused a cholera outbreak that affected thousands of innocent civilians. In both cases, the Organization declined to accept responsibility to compensate the victims. In the Mothers of Srebrenica case brought in Dutch courts, the United Nations maintained its immunity. The Dutch Supreme Court, overruling the Appellate Court, upheld that immunity as absolute, indicating that the assertion of immunity is not affected by the failure of the United Nations to provide a modality for bringing these claims under Section  29 of the General Convention. The ruling of the Dutch Supreme Court raises a fundamental issue of the relationship of the claimed immunity under Section 2 of the Convention to the requirement under Section 29 for the United Nations to provide a modality for reviewing these claims. The ruling also raises the issue of what is meant under Section  29 by its reference to disputes of a “private law character”.23 Subsequently, the claimants brought an application before the European Court of Human Rights. 22

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In this respect, the Organization has consistently maintained over the years that its immunity is not a shield from responsibility to respond to credible claims of a private law character and that the Organization is obligated to make a dispute resolution modality available for such claims under Section 29 of the General Convention. See, e.g., United Nations Juridical Yearbook (1980) pp. 227–242. See Thomas Henquet, ‘Introductory Note to Supreme Court of the Netherlands; Mothers of Srebrenica Association et. al. v. The Netherlands’ (2012) 51 ILM p. 1322. See also Thomas Henquet’s contribution to this compilation.

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In the case of the Haitian cholera victims, the United Nations publicly announced simply that the claims are “not receivable”, suggesting that this is because considering them would necessarily include a review of political or policy matters. Thus far, the United Nations has declined to explain the basis of its decision not to review such claims.24 The claimants continue to urge the Organization to establish a claims commission under the terms of the SOFA with Haiti to review these claims, suggesting that if the United Nations fails to do so, it may seek recourse in the courts. At this stage in both matters, a few observations are in order. Initially, the situations of the Mothers of Srebrenica and the Haitian cholera victims are very different. Failure to use military force, even where there is a policy or mandate to do so to protect innocent civilians, is very different from negligent screening of United Nations peacekeeping troops and negligent maintenance of sanitary facilities for those troops. The use of force under a United Nations Security Council mandate is always a complex issue. Indeed, the failure to use force that results in death or injuries is itself somewhat different from the actual use of force resulting in such death or injuries. These differences are inherently relevant and important to the issue of whether the actions of the United Nations troops that are at the heart of the claims of the Mothers of Srebrenica present are claims under Section 29 of the General Convention of a ‘private law character’. These differences are also important from the perspective of the application of the new regime established by the Organization to deal with third party claims resulting from peacekeeping operations. Initially, there is a question of whether the new regime by its terms applies to the claims of the Mothers of Srebrenica. Notably, the regime postdates the events in Mothers of Srebrenica. Moreover, given that the claims relate to ‘combat related activities’, it is unclear whether or to what extent the new regime by its terms applies to these claims, for example whether the actions of the United Nations forces at issue come within the definition of either military or operational necessity.25 In the end, there is a real issue in this case whether the dispute over the actions of the 24

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Office of the Spokesperson for the Secretary-General, Statement on Haiti attributable to the Spokesperson for the Secretary-General (21 February 2013); Reuters World Service, UN says will not pay Haiti cholera compensation claims (21 February 2013); see also Transnational Development Clinic, Jerome N. Frank Legal Services Organization, Yale Law School, Global Health Justice partnership of the Yale Law School and the Yale School of Public Health, and the Association Haitienne de Droit de L’environment, Peacekeeping without Accountability—the United Nations’ Responsibility for the Haitian Cholera Epidemic (2013) (‘Yale Haiti Cholera Report’). See Peacekeeping Liability Regime Report I, supra note 14, para 16.

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United Nations forces are of a “private law character”, or whether the dispute raises an issue of public policy or public international law that would take the matter outside the scope of Section 29. Notably, on 11 June 2013, the European Court of Human Rights declared the application brought by the Mothers of Srebrenica inadmissible. In so doing, the Court upheld the immunity of the United Nations stating, in passing, that since operations established by United Nations Security Council resolutions under Chapter VII of the United Nations Charter are fundamental to the mission of the United Nations to secure international peace and security, the [European Convention on Human Rights] cannot be interpreted in a manner that would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the United Nations.26 It is much more difficult to understand the decision of the United Nations declining to review the claims of the Haitian cholera victims in light of the longstanding practice of the Organization to address claims of a private law character in connection with peacekeeping missions and the terms of the Organization’s new peacekeeping liability regime.27 In this respect, I think that 26 27

Stichting Mothers of Srebrenica and others v. The Netherlands, Application no. 65542/12, European Court of Human Rights (2013), para. 154 (‘Mothers of Srebrenica’). It is difficult to understand the position of the United Nations that these claims “are not receivable”. Indeed, as the head of the United Nations legal office that routinely handled claims against the Organization for some ten years, I did not recall any previous instance where such a formulation was utilized in regard to such claims. Recently, however, it has come to my attention, that the Organization in 2011 used that formulation in response to claims against the Organization for damage to health suffered by third parties as a result of lead contamination in certain Internally Displaced Person (‘IDP’) camps in Kosovo: Claim for Compensation on behalf of Roma, Ashkali and Egyptian residents of Internally Displaced Person (IDP) camps in Mitrovica, Kosovo. In that instance, the United Nations took the position that “[t]he claims do not constitute claims of a private law character and, in essence, amount to a review of the performance of UNMIK’s mandate as the interim administration in Kosovo. Based on the framework established by member States, therefore, the claims are not receivable under Section 29…or General Assembly Resolution A/RES/52/247”: see Letter from Patricia O’Brien, Under Secretary General for Legal Affairs, The Legal Counsel, 25 July 2011. Subject to further analysis of that situation, it is important to note what would appear to be certain critical distinctions between this and the Haiti situation. Initially, and perhaps most critically, is the fact that in Kosovo, the United Nations was not operating in the capacity simply of a peacekeeping mission. It was acting in the capacity essentially of the temporary governmental authority: the ‘Interim

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it is important to note that while the new regime supports recourse to a standing claims commission, as a modality for responding to claims arising in the peacekeeping context under a SOFA agreement, such a commission is only one ‘option’ for dealing with such claims. It is also an option that, as the Secretary General noted, has never been activated and cannot be effectively evaluated.28 As is recognized in the reports of the Secretary-General and the General Assembly, the local claims review boards continue to have the jurisdiction to review claims from third parties resulting from peacekeeping operations.29 If the United Nations continues to refuse to review the claims of the Haitian cholera victims, and does not offer a convincing rationale for doing so, the options open to the claimants are few. They could urge the Haitian Government to intervene on their behalf with the United Nations to seek to establish a standing claims commission under the SOFA, or otherwise address the claims.30 If the United Nations were to continue to resist the responsibility to review the claims of the Haitian cholera victims, the claimants could urge the Haitian Government to seek an advisory opinion from the ICJ under Section 30 of the General Convention regarding the responsibility to review the claims in light of the mandate imposed on the Organization under Section  29 of the Convention. It does not appear that any member state has ever exercised or

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Administration’. In this context, the letter also addresses other possibly critical factors relating to the long history of industrial pollution in the area and the precarious security situation in Kosovo. Arguably, when the United Nations acts in such circumstances, it is the government for which it is temporarily acting that is ultimately responsible for such matters. In this respect, there is a much stronger case for characterizing the actions of the ‘Interim Administration’ as addressing political or policy matters of a governmental nature that do not give rise to claims of a private law character within the meaning of Section 29, than there is in the Haiti situation. See Peacekeeping Liability Regime Report II, supra note 15, para 43. See A/RES/52/247, para 13; Peacekeeping Liability Regime Report I, supra note 15, paras. 30–33. The Prime Minister of Haiti raised the issue in his presentation on 30 September 2013 to the opening session of the 68th General Assembly, during which he referred to the moral obligation of the United Nations to address the cholera epidemic and proposed that the Government of Haiti and the United Nations establish a joint commission to study ways and means to eradicate the cholera. See also Statement of Prime Minister Lamonthe, Summary of Statement (29 September 2013), available at: . The purpose of such a joint commission apparently would be to address the health risks associated with the epidemic and not to address responsibility for the outbreak or legal liability to pay compensation. There are reports that the United Nations and the Government of Haiti are making efforts to agree on such a commission.

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sought to exercise this right to go to the ICJ under Section 30. The process for making such a request could be very complicated, both legally and politically. If there are nationals of other countries that have been afflicted with cholera in Haiti, those nationals could urge their Governments to join the fray. Appeals by member states at the United Nations, with or without Haiti, might persuade the Secretary-General to change his position on immunity, or offer other approaches to dealing with the claims or for dealing more aggressively with the health situation in Haiti. Finally, the claimants could seek to sue the United Nations in national courts. Thus, they could bring a suit in Haiti, although given the actions thus far of the government, it would not appear to be a welcoming forum. It could bring suit in the United States as the claimants have suggested they might do if the Organization does come around. If they file in the United States, there is some history in the courts—at least at the lower level—of skepticism over the immunity of the United Nations, especially where the Organization fails to provide another modality for claimants to have their claims reviewed.31 The claimants might be able to bring a suit in another forum, such as within the European Union (‘EU’). While it does not appear that the courts in the EU were amenable to accepting jurisdiction in the Mothers of Srebrenica case in the face of an assertion of immunity by the United Nations,32 decisions in other cases in the EU suggest that other courts in the EU may be more amenable to accepting jurisdiction in a case involving the issues raised by the Haitian cholera victims,33 assuming that the victims could otherwise establish 31

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On 9 October 2013, the Haitian claimants filed a class action against the United Nations in the US District Court, Southern District of New York, demanding declaratory and injunctive relief and compensatory and punitive damages to remedy the injuries sustained by the plaintiffs, including remediation of Haiti’s waterways and provision of adequate sanitation. The named defendants are the United Nations, the United Nations Stabilization Mission in Haiti, Ban Ki Moon, Secretary-General of the United Nations, Edmond Mulet, former Under Secretary-General for the United Nations Stabilization Mission in Haiti. When asked about the case, the Office of the Spokesman for the Secretary-General declined to respond on the grounds that it is not the practice of the Organization to discuss in public claims that are filed against the Organization. Spokesperson’s Noon Briefing, United Nations Department of Public Information, Daily Press Briefing (9 October 2013). See supra notes 23 and 26, and accompanying text. Notably, in the Mothers of Srebrenica case, the ultimate decision rejecting jurisdiction was by the European Court of Human Rights and related to binding decisions by the Security Council involving the use of force under Chapter VII of the Charter. The same Court may have reached a different decision if faced with a claim in the nature of that presented by the victims of the Haitian cholera.

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jurisdiction to bring an action in those courts. Thus, there are judgments in cases brought before the European Court of Justice also involving binding decisions by the Security Council under Chapter VII of the Charter, where that Court declined to recognize immunity in regard to challenges to those decisions. In those cases, the United Nations was not a party to the litigation. Rather, a private individual challenged the implementation by the European Commission and a number of EU states of the economic sanctions pursuant to binding Chapter VII resolutions of the Security Council. The European Commission and those EU states argued in those cases that they were bound under the Charter and international law to implement the Chapter VII Security Council decisions and that, consequently, the European Court of Justice could not second guess the Security Council in regard to this matter.34 However, the European Court of Justice in those cases held that the actions of the European Commission and those EU states could not, in the absence of the United Nations providing a forum for appropriate judicial review to address underlying grievances, be afforded immunity from jurisdiction in the courts of the EU on the ground that they were simply implementing binding resolutions adopted by the Security Council under Chapter VII of the Charter.35 The European Court of Justice recognized the fundamental right of an individual who may be directly and adversely affected by actions seeking to implement binding Security Council decisions—in this case Chapter VII economic sanctions—to judicial review of such actions. In doing so, the Court determined that the “Ombudsman” mechanism recently established by the Security Council to address grievances concerning the imposition of such sanctions did not provide adequate safeguards. The Court went on to elaborate a robust standard of review that requires the EU courts to examine in detail the evidentiary basis for the imposition of sanctions—or presumably any other actions seeking to implement binding decisions of the Security Council under

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The European Commission and those EU states, in effect, argued that decisions of the Security Council in respect of the imposition of economic sanctions, in the words of the European Court of Human Rights in the Mothers of Srebrenica case, “cannot be interpreted in a manner that would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the United Nations” (supra note 26). See Judgment of European Court of Justice (Grand Chamber), in Joined Cases C-584/10P, C-593/10 P and C-595/10 P (18 July 2013) (‘Kadi II Judgment’), paras. 65-68. Notably, the European Court of Human Rights in the Mothers of Srebrenica case suggested, contrary to the decisions of the European Court of Justice in the Kadi II Judgment, that it may not always be the case that the United Nations must offer a modality for resolving a claim of a private law character. See Mothers of Srebrenica, supra note 26, paras. 163–164.

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Chapter VII that directly and adversely affect individuals who may have standing to bring a claim in EU courts.36 5 Conclusion It is clear that the Mothers of Srebrenica and the Haitian victims of cholera matters have raised serious issues regarding the immunity of the United Nations that will continue to reverberate as the United Nations seeks to fulfill its important and far ranging purposes in an ever shrinking global community.37 Practitioners and scholars will no doubt carefully examine the judgments in these cases and monitor their impact on the immunity of the United Nations. 36 37

See Kadi II Judgment, ibid., paras. 97–134. Indeed, while the judgments of the ECHR in Mothers of Srebrenica and of the European Court of Justice in the Kadi cases both involved challenges to the United Nations’ actions based on decisions of the Security Council under Chapter VII, the judgment of the European Court of Justice in the Kadi II case raises a fundamental issue relating to the system of collective security established under the Charter. If that Court, on behalf of the EU, can assert the right to substantively review the binding decisions of the Security Council under Chapter VII of the Charter, what is to prevent other courts in the EU, or any other regional or national court, from subjecting the decisions of the Security Council to a substantive review?

chapter 6

Privileges and Immunities of the World Health Organization: Practice and Challenges Gian Luca Burci and Egle Granziera* Abstract This paper presents a brief overview of the World Health Organization’s experience with privileges and immunities, focusing on the sources of its privileges and immunities and the challenges encountered in asserting them and securing their respect. This overview will demonstrate how complex and sometimes elusive the legal protection afforded to the WHO can be. Although the rationale for the WHO’s privileges and immunities is constitutionally founded on the notion of functional necessity,1 the scope and limits of its functions can be blurred or shifting. While the WHO has not faced the dramatic challenges to or denials of its privileges and immunities that other organizations have encountered, the trend of progressive erosion of legal protection in the name of accountability, democratic control by national courts, the protection of human rights and shifting perceptions of the “added value” of international organizations may eventually require a conscious and strategic revision by the international community of the model of international cooperation represented by international organizations.

Keywords privileges and immunities – World Health Organization – constitution – Specialized Agencies Convention

* The present paper expands upon the presentation made at the Law School of Leiden University in June 2013. The views expressed are solely those of the authors and they do not necessarily represent the decisions, policy or views of the World Health Organization. 1 Article 67(a) of the WHO Constitution provides expressly that “the Organization shall enjoy in the territory of each Member such legal capacity as may be necessary for the fulfillment of its objective and for the exercise of its functions.”

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1 Introduction The World Health Organization (‘WHO’) is a specialized agency of the United Nations whose mandate is “to act as the directing and coordinating authority in international public health”.2 With its 194 member states, two associate members, six regional and more than 151 country offices, in addition to its headquarters in Geneva, WHO is a universal organization3 with a decentralized structure and an elaborate system of legal protection and dispute settlement. As such, it shares certain aspects of practice and challenges with other intergovernmental organizations within and outside the United Nations system, while other aspects are characteristics of its decentralized structure, functions and practice as well as the consequence of recent trends in global health governance. The present contribution offers a brief overview of WHO’s experience, focusing on the sources of its privileges and immunities and the challenges encountered in asserting them and securing their respect. It will suffer from two unfortunate but unavoidable limitations which should be disclosed at the outset: the authors, in view of their professional affiliation with WHO and consequent duty of discretion, will at times not be in a position to single out particular member states to support their arguments, and will have to proceed on a nonattribution basis. This limitation is compounded by the scarcity of publicly available documentation on WHO’s practice that the authors could cite, which may give the impression that their analysis is anecdotal rather than based on actual practice. 2

Sources of WHO’s Privileges and Immunities

Unlike diplomatic, consular and now state immunities, the privileges and immunities of most international organizations—including WHO—do not rely on a single general treaty against the background of any existing customary international law. They are actually based on a multiplicity of international and domestic instruments, which may interact with one another in different and complex manners and present a generally fragmented picture of the legal framework on which organizations rely for the protection of their functions.

2  Constitution of the World Health Organization, opened for signature 22 July 1946, 14 UNTS p. 185 (entered into force 7 April 1948), Art. 2(a). 3  The only member state of the United Nations that is not a member of WHO is Liechtenstein, whereas Niue and the Cook Islands are members of WHO but not of the United Nations.

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2.1 The Convention on the Privileges and Immunities of the Specialized Agencies The Convention on the Privileges and Immunities of the Specialized Agencies, adopted by the General Assembly on 21 November 1947 and subsequently adopted by the First World Health Assembly on 17 July 1948 (‘Specialized Agencies Convention’)4 constitutes the sole comprehensive multilateral agreement dealing with the privileges and immunities of a large group of international organizations, namely, 17 specialized agencies including WHO. As at publication, the Specialized Agencies Convention had 123 parties, most of which have acceded to it with respect to WHO and have thus undertaken to apply the Convention to the Organization and its staff, assets, funds, members and experts. The main body of the Specialized Agencies Convention is supplemented by annexes adopted by the agencies concerned, which address some specific features thereof. Annex VII, applicable to WHO and providing inter alia for the privileges and immunities of experts serving on behalf of it, was first adopted in 1948 and has been revised three times since then to increase its scope.5 While some states (for example, Norway and the United Kingdom) have accepted all subsequent revisions of the Annex, others (such as Algeria and Brazil) have only accepted the original version of the Annex. As a result, the overall picture of the scope of the obligations accepted by WHO’s member states under the Specialized Agencies Convention is somehow fragmented, at least with respect to the scope of protection offered by Annex VII. A number of countries have filed reservations when acceding to the Specialized Agencies Convention.6 Most reservations concern the compulsory jurisdiction of the International Court of Justice (‘ICJ’) under Sections 24 and 32 of the Specialized Agencies Convention; however, some reservations affect directly the facilities, privileges and immunities enjoyed by the agencies, which are not parties to the Specialized Agencies Convention but at the same time cannot be considered as purely third-party beneficiaries. In view of this unusual situation, a practice has developed since the 1960s by which the Secretary-General of the United Nations, in his capacity as depositary of the Specialized Agencies Convention (in practice, this function is performed by the Treaty Section of the 4  Opened for signature 21 November 1947, 33 UNTS p. 261 (entered into force 2 December 1948). 5 Adopted by the First World Health Assembly on 17 July 1948, 33 UNTS p. 33; amended by the Third World Health Assembly on 25 May 1950, 71 UNTS p. 318; amended again by the Tenth World Health Assembly on 22 May 1957, 275 UNTS p. 298; and also by the Eleventh World Health Assembly on 12 June 1958, 314 UNTS p. 308. 6  A list of reservations and objections thereto is available on the web site of the United Nations Treaty Collection Database, which is available at: .

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Office of Legal Affairs), circulates to all specialized agencies the relevant instruments of accession, accompanied by any reservations that have been made, before accepting their deposit. If any specialized agency objects to a reservation on the ground that it constitutes an unacceptable interference with the proper discharge of its functions, the instrument is held in abeyance and the United Nations consults with the state concerned with a view to either reducing the scope of the reservation or obtaining its withdrawal. Examples of such reservations concern the free disposition and transfer of funds under Section 7, national service obligations under Section 20, and the immunities relating to official correspondence under Section 12. While this practice enables specialized agencies to exercise some control over unacceptable reservations, its informal nature and the lack of an adjudicatory mechanism has led to a stalemate in the consultations with some states, with the consequence that their accession may be kept on hold indefinitely. Given the relatively limited number of states parties to the Specialized Agencies Convention, this is an unintended and undesirable side effect of the practice in question on which the United Nations and the specialized agencies are currently working. 2.2 Bilateral Agreements The legal framework provided by the Specialized Agencies Convention is supplemented—or in the case of the 70 member states that are not parties to it, replaced—by a large number of bilateral agreements. Prominent among those agreements are the host agreements for conferences and meetings, the Head­ quarters Agreement for the seat of the WHO in Geneva, the host agreements for five out of its six regional offices, as well as agreements providing a legal basis for the establishment and legal protection of the offices opened by WHO in more than 150 states. Among these agreements, particular mention should be made of the ‘Basic Agreements for the establishment of technical advisory cooperation relations’ (‘Basic Agreements’) which are used by WHO as the main legal instrument to establish the general terms for the provision of technical cooperation to member states, particularly to developing countries. The main purpose of the basic agreement, which finds parallels in equivalent instruments used for example by UNICEF and UNDP, is to regulate the provision of technical cooperation by WHO as well as the respective roles, rights and obligations of the parties, including with regard to the legal protection of WHO when operating in the country concerned. The Basic Agreements, with just a few exceptions in relation to countries such as Algeria and Turkey (with which WHO has concluded a separate host agreement), also provide the legal basis for the establishment and legal status of country and liaison offices, their assets and staff.

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Until recently, the WHO Secretariat used a model basic agreement dating back to the early 1950s (‘1950s Basic Agreement’) which has proved obsolete and inadequate to deal with the changing nature of the relationship between the Organization and its member states and of their mutual expectations.7 On the one hand, that model did not comprehensively regulate the status, privileges and immunities that should be granted to WHO, its assets, staff and other persons cooperating with it but limited itself to determine the applicability of the “appropriate provisions” of the Specialized Agencies Convention whether or not the state concerned was a party thereto. The 1950s Basic Agreement also did not explicitly address the establishment of a WHO Office in the country, nor its functions or legal status. This may have been a reason for the difficulties encountered by some country and liaison offices in obtaining registration by the relevant local governments and securing the privileges and immunities necessary for their activities. On the other hand, many states with which WHO concluded a 1950s Basic Agreement did not provide some or all of the facilities and contributions that they were obliged to furnish under its Article III. This development is probably in line with the changing assumptions of the balance of rights and obligations between a country and an intergovernmental agency cooperating with it. Finally, the 1950s Basic Agreement was very much based on the idea that WHO is active in a country only for the benefit of the latter on a bilateral basis. However, activities with a global scope and purpose that WHO may carry out in developing countries, such as clinical trials or product development, increasingly have become a part of WHO technical cooperation programmes. In order to address the abovementioned issues, WHO has recently revised the previous model Basic Agreement and has developed a Revised Basic Agreement.8 The main objectives of the revision were to modernize WHO’s basic instrument for the provision of cooperation, align it more closely with agreements concluded by other United Nations-system bodies, and address the aforementioned gaps in the model Basic Agreement. The major innovations in the new instrument are: 7 While the model agreement developed by the Secretariat has not been formally approved by WHO’s governing bodies and is not published, a large number of concluded Basic Agreements have been registered with the United Nations under Article 102 of the UN Charter. See e.g., Basic Agreement between the World Health Organization and the Government of the Democratic Republic of East Timor for the establishment of technical advisory cooperation relations, 20 May 2002, 2189 UNTS at 357. 8  The text of the model Revised Basic Agreement has not yet been published but has been circulated internally within the Secretariat.

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(1) the insertion of explicit provisions on the establishment of a country office and its status; (2) a more detailed regulation of the status, privileges, immunities and facilities that should be granted to WHO, its assets, office, staff and experts; (3) the inclusion of clear provisions on persons other than staff performing official functions for WHO (e.g. contractors and implementing partners) and on representatives of member states invited by WHO, which were not mentioned at all in the 1950s Basic Agreement; and (4) the inclusion in the scope of the agreement of activities which may benefit the host country but have an intrinsically global purpose, such as clinical trials or medical product development. While the revised text undoubtedly represents a substantial improvement, its implementation will probably be limited in the near future. Most member states receiving technical cooperation from WHO have already concluded a 1950s Basic Agreement and may not be inclined to replace it with a new agreement that spells out their obligations in much more detail. So far, the Secretariat has concluded two basic agreements based on the revised model with the Solomon Islands and South Sudan, and will seek the conclusion of a Revised Basic Agreement mostly with new member states or states which take the initiative in requesting a revision of existing bilateral cooperation agreements. The effect and role of bilateral agreements has to be seen in the light of the dispositive nature of the Specialized Agencies Convention. As prescribed by its Section 39, the Specialized Agencies Convention shall in no way limit or prejudice the privileges and immunities which have been, or may hereafter be, accorded by any State to any specialized agency by reason of the location in the territory of that State of its headquarters or regional offices. This Convention shall not be deemed to prevent the conclusion between any State party thereto and any specialized agency of supplemental agreements adjusting the provisions of this Convention or extending or curtailing the privileges and immunities thereby granted. As a consequence, notwithstanding the accession of a state to the Convention, the bilateral host or cooperation agreement concluded with WHO is the main legal instrument defining its status in the relevant country, and may override

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the Specialized Agencies Convention.9 Italy has filed a declaration in this sense upon its accession to the Specialized Agencies Convention making this condition explicit, and has partly limited the privileges and immunities of WHO officials (e.g., in connection with traffic accidents) based in its two offices in Rome and Venice.10 As it emerges from the issues set out above, the overall picture of the sources of privileges and immunities is characterized by a fragmentation of instruments. This may lead to a disparity of treatment among staff working in different locations, depending on the host country’s attitude and approach towards the granting of privileges and immunities. By way of contrast with that fragmented picture, agreements concluded by WHO with its member states—in particular those aimed at  regulating WHO’s presence in the country, such as the Basic Agreements—­ contain a consistent reference to the Specialized Agencies Convention. This should ensure a certain uniformity in the granting and implementation of privileges and immunities. As a consequence, references to the Specialized Agencies Convention, while constituting a remedy to address fragmentation, should be regarded as a minimum standard which can be improved by bilateral negotiations. It should be noted that the practice whereby a state would agree to give effect to the Specialized Agencies Convention without having acceded to it has been recently challenged at a meeting of the Governing Body of the International Labour Organization, as this would constitute a breach of accession procedure under national law. In response to that argument, the Deputy Legal Adviser of the International Labour Office clarified that [r]egarding the ability to commit bilaterally to applying the provisions of the Convention without accession to the Convention at multilateral level, such a situation was entirely compatible with international law. There 9

10

This approach has been supported by the ICJ in Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 28 May 1980, International Court of Justice, Advisory Option, 1980 ICJ Rep. p. 73. See also A.S. Muller, International Organizations and their Host States (1995), p. 35. The text of the declaration is as follows: “In the event that some of the specialized agencies which are mentioned in the instrument of accession and to which Italy undertakes to apply the Convention should decide to establish their headquarters or their regional offices in Italian territory, the Italian Government will be able to avail itself of the option of concluding with such agencies, in accordance with Section 39 of the Convention supplemental agreements specifying, in particular, the limits within which immunity from jurisdiction may be granted to a given agency or immunity from jurisdiction and exemption from taxation granted to officials of that agency.” Supra, n. 6.

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was a long and consistent member State practice of doing so—35 of the 66 States that had not yet acceded to the Convention had agreed bilaterally to apply its provisions to the ILO—and a similar practice had been followed by States in relation to other UN agencies and programmes, such as the UNDP and its Standard Basic Assistance Agreement. It was possible for a member State to provide such protection in that way in so far as it was decided by a national authority with the power to do so and was compatible with the national constitutional order.11 2.3 National Legislation National legislation may fill the gap in the absence of host agreements concluded between the country and WHO and/or when the relevant state has not acceded to the Specialized Agencies Convention. One example in this respect is the International Organizations Immunities Act of 1945, a United States federal law that identifies privileges and immunities and exemptions granted to international organizations designated by executive orders.12 WHO’s privileges and immunities in the United States are regulated by this Act. However, from WHO’s perspective, exclusive reliance on national law for the granting of privileges and immunities is not a suitable solution for three main reasons: first of all, it implies the submission of WHO to national law without reliance on a corresponding international agreement; secondly, WHO has no control over the national legislation which may be amended and even abrogated with no possibility for WHO to influence it; and thirdly, WHO may not be familiar with the mechanisms for the implementation of the national legislation. 2.4 The WHO Constitution In residual cases, the sole juridical basis for the granting of privileges and immunities are the general provisions of Articles 66 and 67 of the WHO Constitution. This situation is quite unusual, and occurs when there is no other legal basis regulating the status of WHO. In such cases, recognition of privileges and immunities solely relies on the spirit and provisions of the WHO Constitution, under 11

International Labour Office, Minutes of the 317th Session of the Governing Body of the International Labour Office, GB.317/PV, available at: