Katholieke Universiteit Leuven Faculty of Law

Institute for International Law Working Paper No 143 - December 2009

The Immunity of International Organizations before Domestic Courts: Recent Trends Cedric Ryngaert

The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organizations at the Faculty of Law of the University of Leuven. The Institute also organizes colloquia, seminars, workshops and lectures which bring current issues of international law to the fore. Since the spring of 2007, the Institute participates in the Leuven Centre for Global Governance Studies. This interdisciplinary research centre of the Humanities and Social Sciences carries out and supports interdisciplinary research on topics related to globalization, governance processes and multilateralism, with a particular focus on the following areas, taking the many cross-cutting issues into account: (i) trade and sustainable development, (ii) peace and security, (iii) human rights, democracy and rule of law, and (iv) the European Union and global multilateral governance. The working paper series, started in 2001, aims at a broader dissemination of the results of the research of the Institute and of other researchers in the academic community and in society. It contains contributions in Dutch, in English and in French. Reference may be made to these working papers with proper citation of source. For more information and a complete list of available working papers, please visit the website of the Institute for International Law on www.internationallaw.eu and the website of the Leuven Centre for Global Governance Studies on www.globalgovernancestudies.eu © Instituut voor Internationaal Recht, K.U. Leuven, 2001-2008

Institute for International Law K.U.Leuven Tiensestraat 41, B-3000 Leuven Tel. +32 16 32 51 22 Fax +32 16 32 54 64 Prof. Dr. Jan Wouters, Professor of International Law and International Organizations; Director, Leuven Centre for Global Governance Studies and Institute for International Law, K.U.Leuven

The Immunity of International Organizations before Domestic Courts: Recent Trends Cedric Ryngaert Assistant Professor of International Law Leuven University; Utrecht University BOF research fellow Leuven Centre for Global Governance Studies

As is the case with any organization, disputes may arise between an international organization and an individual with whom the organization has some connection. Typically, those disputes have a private law character, as they relate to employment, contractual or tort issues which the individual might have with the organization. Exceptionally, they have a public law character (e.g., in relation to human rights violations committed in the course of a peace operation conducted by the organization). Such disputes may be addressed by specific mechanisms which the organization has established or put at the disposal of aggrieved individuals. In the alternative, individuals could bring their claims before domestic courts, in which the organization may readily use its immunity defence. It is the international organizations’ immunity defence before domestic courts, and its relationship with the organizations’ ‘own’ dispute settlement mechanisms, which is the subject of this article. The focus of the article lies primarily on private law disputes between international organizations and individuals, and on (employment) disputes between organizations and their staff (the vast majority of disputes between organizations and individuals) in particular. This article is by no means the first doctrinal contribution on the subject of the immunity of international organizations. 1 But, since many more domestic cases have

1

References to the various contributions are listed in the footnotes.

recently been made available through databases, 2 revisiting the discussion is appropriate. As will be shown, the new cases enrich the discussion and cast doubt on the validity of some principles and tendencies – which may be called ‘progressive’ – that have previously been identified in relation to the immunity of international organizations. The cases draw attention to three main issues: 1. the legal nature of the immunity of international organizations, 2. the weighing of the individual’s right to a remedy and the organization’s immunity and, to a lesser extent, 3. the relationship between the immunity from jurisdiction and the immunity from enforcement. As to the first issue, it will be examined whether international organizations enjoy immunity under general (customary) international law – as is sometimes asserted – or whether immunity should rather be based on treaty law (headquarters agreements) only. In this context, it will also be ascertained what the scope of any immunity granted is, in particular, whether this immunity is functionally limited (i.e., restricted to acts necessary for the performance of the international organization’s purposes) as many authors seem to believe, and if a functional necessity analysis adequately takes the interests of aggrieved individuals into account (Section 1). In Section 2, building upon the first section, it will be shown that, inspired by the case law of the European Court of Human Rights (ECtHR), many domestic courts (in Europe) have refrained from carrying out a functional necessity analysis – which typically turns out in favour of the organization – and have instead espoused a (human) rights approach. Pursuant to this approach, a domestic court will inquire into whether the aggrieved individual can sufficiently exercise his right to a remedy; only if he has sufficient access to ‘alternative’ dispute settlement mechanisms provided by the organization will a court uphold the organization’s immunity. It remains unclear, however, how thorough a domestic court’s inquiry into an organization’s mechanism ought to be. No clear tendency can be discerned in State practice. Although an inquiry into the quality of the organizations’ own procedures deserves support on fairness grounds, it is too early to conclude that it is mandated by international or European human rights law. 2

Notably the Oxford Reports on International Law in Domestic Courts should be cited in this respect. See http://ildc.oxfordlawreports.com/. References to ‘ILDC’ in this article relate to the numbered headnotes listed on this website.

Finally, a brief third section will devote some attention to the interplay between an international organization’s immunity from jurisdiction and its immunity from enforcement, on the basis of an analysis of some relevant cases. Headquarters agreements may typically only regulate either enforcement or jurisdiction, which invites the question as to whether or not the other modality of immunity applies. One may also wonder whether the theoretical approaches developed by the courts (functional necessity, human rights based) are applicable across the board, i.e., to immunity from both jurisdiction and execution.

1. The immunity of international organizations: functionally limited under international law?

As international organizations are fairly novel actors on the international scene, it is not surprising that any immunities which they might enjoy are, unlike the immunities of States, not yet fully crystallized. A major issue in need of resolution concerns the question of whether there is any customary international law governing the immunities of international organizations, like there is customary law governing the immunities of States. Are international organizations, in the absence of applicable treaty law (headquarters agreements mainly), entitled to immunity under customary law, or under general principles of international law for that matter? Also, is there a distinction between acta jure imperii and acta jure gestionis under customary international law for purposes of the immunity of international organizations – a distinction which is now generally accepted in the law of State immunity, with immunity not attaching to non-sovereign acts/acta jure gestionis? 3 Or, on slightly similar lines, is the immunity of international organizations merely functional and thus restricted, in the sense that the immunity only applies if necessary for the fulfilment of the purposes of the organization? 4 3

Cf. Art. 10 et seq. of the UN Convention on the Jurisdictional Immunities of States and their Property, UNGA A/RES/59/38, 44 ILM 801 (2005). 4 It should be noted that quite a number of authors have propounded a doctrine of restricted immunity for international organizations, on the grounds that the organizations’ clinging to their immunities produces harmful effects. Cf., e.g., E. Gaillard and I. Pingel-Lenuzza, ‘International Organizations and Immunity

While it may appear that the jurisdictional immunity of international organizations in domestic legal proceedings is generally not disputed, many domestic courts do not seem to recognize the immunities of international organizations in the absence of relevant treaty law. Of course, sometimes domestic courts lack knowledge of immunities of international organizations, as such cases rarely arise, and fall outside the ambit of what national courts - especially lower courts - are used to dealing with. They may tend to confuse legal concepts and be simply wrong. In other cases, however, domestic courts may engage in rather intricate legal reasoning, which deserves serious scrutiny. In a 2001 Belgian case, for instance, the Belgian Supreme Court (Cour de Cassation) held that there is no general principle of public international law (in the sense of Article 38.1.c of the Statute of the International Court of Justice) to the effect of there being immunity from jurisdiction of international organizations with respect to the States that have established or recognized them. 5 Instead, in the Court’s view, any immunities should be based on the headquarters agreement (a treaty) between Belgium and the international organization, in this case the League of Arab States. 6 Other courts have reasoned along similar lines, rejecting the analogy with State immunity for customary law purposes. In a 1999 Italian case involving the European University Institute, the court ruled that customary rules on immunity only apply to States, not to international organizations, such entities enjoying only limited international legal personality. 7 In a 2007 case, an Italian court confirmed that the immunity of international organizations could only be based on conventional instruments, such as headquarters agreements, and not on alleged customary international law. 8 Only in an older Dutch case, against the Iran-US Claims Tribunal, does a domestic court appear to

from Jurisdiction: to Restrict or to Bypass’, 51 ICLQ 1, 2, 5 (2002) (‘There can be no doubt that it is appropriate to restrict the immunity from jurisdiction of international organizations where the functioning of the organization is not at issue. Adopting the opposite view would privilege the protection of the institution over all other considerations.’). 5 ILDC 42 (BE 2001), H3. 6 The court cast the headquarters agreement aside, however, on the grounds that it was not duly approved by the legislature. Id., H2. 7 EUI v. Piette, (1999) Italian Yearbook of International Law 156. 8 ILDC 3718 (IT 2007); ILDC 297 (IT 2005), H4 (refusing to uphold a general customary international law rule of par in parem non habet imperium/jurisdictionem, as exists in the law of State immunity). See also the somewhat older French case decided by the Court of Appeals of Paris, CEDAO v. BCCI, 13 January 1993, 120 JDI 353 (1993).

have upheld the immunity of an international organization on the basis of customary international law. 9 Once the immunity of the international organization is enshrined in a treaty, courts are generally unwilling to recognize exceptions to that immunity, e.g., for acta jure gestionis, under customary international law. 10 In so doing, they again reject the analogy with State immunity. An Austrian court, hearing a case against the OPEC Fund for International Development, the immunity of which was laid down in a headquarters agreement with Austria, put the issue unequivocally, in 2004, as follows:

‘Comparing the nature of the immunity of international organizations to that of states, while foreign states, according to domestic law and prevailing international law, solely enjoy immunity for sovereign acts and not in their capacity as subjects of private rights and duties, the immunity of international organizations is—within the scope of their functional restrictions—in principle to be regarded as absolute.’ 11

In Switzerland and Denmark courts have also refused to impinge on the absolute character of immunities as recognized in headquarters agreements. Along the lines of Austrian jurisprudence, a Swiss court pointed out in 2004 that the immunity of international organizations bore no similarity to the immunity of States, the latter being limited but the former ordinarily being absolute in accordance with the relevant headquarters agreement. 12 A Danish court, for its part, ruled in 1999 in rather explicit terms that in view of the headquarters agreement, UNICEF should be considered immune from jurisdiction relating to a dispute of a civil law nature; 13 thereby it excluded the immunity exception for acta jure gestionis. 14 9

Hoge Raad (Supreme Court of the Netherlands), 20 December 1985, AS v. Iran-United States Claims Tribunal, 94 ILR 321. 10 In the literature it has also been asserted that there is no distinction between acta jure imperii and acta jure gestionis in international institutional law. Cf. C.F. Amerasinghe, Principles of International Institutional Law, Ann Arbor, Michigan University Press, 2003, 328. 11 ILDC 362 (AT 2004), H2, comment A. Reinisch and J. Wurm, A2 (noting that this holding is in line with Austrian precedent regarding the issue). 12 ILDC 344 (CH 2004). 13 ILDC 64 (DK 1999), H3. 14 Id., comment J. Stokholm, A2 (‘The decision was in line with the generally held view that the immunity of an international organization granted by way of agreements subject to international law will be construed widely so as to make no room for a distinction between acts iure imperii and acts iure gestionis. Though

In some jurisdictions, however, there are indications that courts may be willing to restrict the immunity of international organizations on functional grounds. In Belgium, for instance, the court of appeals, in the case involving the Arab League cited above, held (albeit as an a fortiori argument) that the employment dispute of the claimant with the Arab League concerned an actum jure gestionis to which immunity may not attach under customary international law. 15 This holding may have implicitly been overruled by the Supreme Court, which tellingly did not address the issue, having disposed of the case on other grounds. 16 It is tempting in this context to propound a functional analysis, pursuant to which immunity would only attach if truly necessary for the performance of the international organization’s functions and the realization of its goals. 17 Such an analysis would take its cue from the distinction between acta jure imperii and acta jure gestionis in the law of State immunity; 18 indeed, the immunity exception in case of the latter acts is based on their not being necessary for the performance of the State’s sovereign functions and the realization of its sovereign goals. It may also be based on provisions in the constituent acts of other international organizations pursuant to which the international organization the issue before the court might be seen as being of a commercial nature, the court did not refer to a possible exception for immunity for acts iure gestionis.’). 15 ILDC 42 (BE 2001), F2, and comment C. Ryngaert, A7. 16 Id., H2. 17 Cf., e.g., M. Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, 36 Virginia Journal of International Law 53, 65 (1996); P.H.F. Bekker, The Legal Position of Intergovernmental Organizations: a Functional Necessity Analysis of their Legal Status and Immunities, Dordrecht, Nijhoff, 39 (stating that, under the functional necessity doctrine, ‘an entity shall be entitled to (no more than) what is strictly necessary for the exercise of its functions in the fulfillment of its purposes’). See for another doctrinal argument in favour of restricted immunity, even beyond a purely functional analysis: K. Wellens, ‘Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: the Role of the Judiciary in Closing the Gap,’ 25 Mich. J. Int’l L. 1159, 1175-1178 (2004). 18 See also Gaillard and Pingel-Lenuzza, above n. 4, at 5; A. Reinisch and U.A. Weber, ‘In the Shadow of Waite and Kennedy: the Jurisdictional Immunity of International Organizations, the Individual's Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’, 1 International Organizations Law Review 59, 65 (2004); S. Herz, ‘International Organizations in U. S. Courts: Reconsidering the Anachronism of Absolute Immunity’, 31 Suffolk Transnational Law Review 471, 527 (2008) (submitting, in the context of employment disputes against international organizations, that ‘there is nothing peculiarly sovereign about hiring employees’). Contra the State immunity analogy in this respect: C.H. Brower, ‘International Immunities: Some Dissident Views on the Role of Municipal Courts’, 41 Virginia Journal of International Law 1, 17 (2000-2001); N. Angelet and A. Weerts, ‘Les immunités des organisations internationales face à l'article 6 de la Convention européenne des droits de l'homme’, 134 Journal du droit international 3, 14 (2007). Somewhat contradictorily, the latter authors believe that the European Court of Human Rights’ jurisprudence in relation to the tension between State immunity and the right to a remedy (see Section 2 of this article) could be extrapolated to the immunity of international organizations. Id., at 19.

and its officials are to enjoy in the territory of its member States such privileges and immunities as necessary for the fulfilment of its purposes. 19 However, there is scant evidence that domestic courts are willing to go down this path, at least not as a matter of customary international law. Only US and Russian court practice reveals some openness towards a functional analysis, although in practice the restricted functional immunity identified by those courts appears to have been rooted in treaty law rather than customary international law. The US Restatement (Third) of US Foreign Relations Law (1987) states that, under customary international law, an international organization enjoys the privileges and immunities from jurisdiction necessary to fulfil the purpose of the organization.20 This statement, which in fact analogizes State immunity and the immunity of international organizations, has been codified in the US International Organizations Immunities Act (IOIA; it is noted that immunity is limited to organizations that include the US as a participant, and that have been designated by the President through Executive Order); 21 its customary law claim has been supported by the doctrine, 22 and has been reaffirmed in the case of Weinstock v. Asian Development Bank (ADB) (2005). 23 As already said, however, there are few indications that customary international law indeed mandates a functional analysis of an international organization’s immunity. It would, moreover, not be the only issue regarding which the drafters of the Restatement have confounded their normative claims and the lex lata of international law. 24 The fact that the functional analysis is laid down in the IOIA indicates, at most, that US courts are expected to 19

Cf., e.g., Article 105 of the Charter of the United Nations; Article 67 of the Constitution of the World Health Organization; Article 40 of the Statute of the Council of Europe; Articles 39 and 40 of the ILO Convention; Article XII of the UNESCO Convention and Article XV of the IAEA Convention. See, however, Section 2 of the Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 24 (providing that ‘[t]he [Organization], its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity’) (emphasis added). 20 Restatement (Third) of US Foreign Relations Law (1987), Section 467. 21 International Organizations Immunities Act 1945, 22 U.S.C. Section 288a(b) (stating that eligible international organizations ‘shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract’). 22 Brower, above n. 18, at 19. 23 ILDC 321 (US 2005), H2. See also the comment by Whitehouse, A3 (pointing out the similarity between State immunity and the immunity of international organizations in this respect). 24 See also the claim by Section 403 of the Restatement that the exercise of jurisdiction is limited by a ‘rule of reason’ or principle of reasonableness. See for a critique: C. Ryngaert, Jurisdiction in International Law, Oxford University Press, 2008, 153-184.

conduct a functional analysis as a matter of US law. It remains to be seen, however, whether US courts would go so far as to restrict an international organization’s immunity in the absence of a treaty providing for restricted immunity under particular circumstances. In Weinstock, in any event, the court made it clear that the exception to immunity from legal process of the Asian Development Bank and its employees, with regard to certain banking operations, was based on the treaty which established the Bank. 25 In reality, therefore, in US court practice, exceptions to the immunity of international organizations are simply treaty-based. This is also borne out by the case of Atkinson v. Inter-American Development Bank, in which the court held that Congress, when enacting the IOIA, meant to afford international organizations ‘virtually absolute’ immunity. 26 If that is indeed the case, the functional necessity doctrine is only an empty shell; it hardly plays a role in circumscribing the immunity of international organizations (see also below on how to construe ‘functional necessity’). Russian courts also appear to have espoused a functional analysis with respect to the immunity of international organizations, rejecting immunity in the case of business activities unconnected to their professional goals. 27 Yet this analysis may also actually have been based on specific international agreements limiting the immunity of international organizations to activities connected to their professional purposes, rather than having been based on customary international law. 28 25

ILDC 321 (US 2005), H3. 156 F.3d 1335 (D.C. Cir. 1998). See for a scathing indictment of this decision: Herz, above n. 18. 27 ILDC 27 (RU 2004), H1, para. 19 of the judgment (‘As the commercial contract did not provide that everything received under the contract (including shares) was to be used for MIR's professional purposes and not for its commercial activities, functional immunity did not cover all obligations of MIR under the commercial contract.’), H2, paras. 22 and 12 of the judgment (‘Expanding immunity into spheres of activity of MIR not connected with its professional goals would disturb the consistency of Russian judicial practice. In order to be covered by immunity, the purchased property (in this case television equipment, software rights, furniture, office equipment, and shares) should be used for the professional activity, ie activity aimed at achieving the organizations charter goals.’), comment M. Fedorova, A4 (‘This decision approached functional immunities from the view that international organizations have a mandate to carry out the activities set forth in their constituting instruments, but that they should not be able to avoid any obligations incurred in the regular course of business activities.’). See also ILDC 26 (RU 2001), H1-H2. 28 ILDC 26 (RU 2001) concerned an anonymous international organization the immunity of which was governed by Article 7 of the Convention on the Legal Status, Privileges and Immunities of Intergovernmental Economic Organizations, (Hungary) 5 December 1980. ILDC 26 (RU 2004) concerned the International Inter-State Broadcasting Company ‘MIR’, which was established on 9 October 1992 by an Agreement of the Member States of the Commonwealth of Independent States, a treaty which entered into force on 5 July 1996, and also governed by the Multilateral Agreement on international legal guarantees for the free and independent operation of the Inter-State Television and Radio Broadcasting Company ‘Mir’ (with annexed charter), (Ashgabat, 24 December 1993). 26

When an organization’s functional immunity is based on a treaty, the question may still arise as to how to construe this immunity. Typical clauses according to which ‘the international organization and its officials shall enjoy in the territory of its member States such privileges and immunities as necessary for the fulfilment of its purposes’ may be construed broadly or narrowly. In a broad construction, immunity will only attach if upholding jurisdiction would obstruct the fulfilment of the organization’s mission. In a narrower construction, immunity attaches as soon as the suit against the organization relates to activities that bear a direct relation with the organization’s mission. The suit against Euratom in the Netherlands exemplifies the different outcomes which both constructions may yield. 29 In this case, a Dutch appeals court had ordered the public prosecutor to charge Euratom with infringing Dutch environmental regulations at its establishment in Petten, the Netherlands. 30 Observing that the frequent and significant violations of the regulations committed by the international organization could not possibly be considered as being part of the supposed mission of the organization, and that criminal liability would not hinder the fulfilment of its mission, the court rejected Euratom’s plea of immunity. 31 The criterion used by the appeals court was a broad one. Simply put, the court argued that organizations are expected to be ‘good’ actors, and that they forfeit their immunity if they commit ‘bad acts’. In so doing, the court in fact makes a mockery of the immunity clause in the Euratom Treaty, 32 since it subjects Euratom to the full force of the law, just like domestic establishments in a similar position. 33 Not entirely surprisingly, this broad construction of functional immunity was overruled by the Dutch Supreme Court, which rejected the appeals court’s criterion in favour of one pursuant to which immunity attaches to the activities that directly relate to

29

LJN: BA9173, Hoge Raad (Supreme Court of the Netherlands), 01984/07 CW, 13 November 2007. The relevant considerations of the appeals court’s decision are set out in the judgment of the Supreme Court. Id. Section 6.4, heading 5. 31 Id. 32 Article 191 Euratom Treaty, in conjunction with the Protocol on Privileges and Immunities of the European Communities. 33 In Section 6.4 of the appeals court’s judgment, the appeals court tellingly states that the Dutch Euratom establishment participates in private law transactions on the same footing with other establishment that are not associated with an international organization, and that, accordingly, all those establishments ought to comply with the law. 30

the fulfilment of the organization’s mission. 34 The Supreme Court pointed out that violations of environmental regulations could hardly be considered as anything different from such activities; accordingly, Euratom was held to be immune from jurisdiction. 35 Arguably, the Supreme Court’s narrow construction of a functional immunity clause is the better one. Indeed, a broad construction would amount to an undue encroachment on the autonomy of the international organization, as it would allow courts to set substantive rules for good behaviour for international organizations that may not necessarily further the fulfilment of the organization’s purposes. Such a construction also gives priority to the substantive obligation of local establishments of international organizations to comply with the law over the international organization’s procedural immunity. In this respect, it is not inconceivable that the drafters of the functional immunity clause believed that erecting impediments to lawsuits for violations of domestic administrative laws, by means of functional immunities, would make sure that the organization could continue to adequately fulfil its mission (which is of course not to say that, in so doing, the international organization is substantively opting out of administrative regulations). It can be gleaned from the Dutch Euratom case that a functional immunity approach tends to favour the international organization. Gaillard and Pingel-Lenuzza observed generally in this respect:

‘Although this approach appears to be better suited for international organizations, it might result in immunity being granted to international organizations in all circumstances, given that international organizations will always be deemed to act within the scope of their duties.’ 36

In spite of its theoretical attractiveness, the functional immunity approach may not be a silver bullet as far as doing justice to individuals purportedly harmed by an international 34

Supreme Court judgment, Euratom, above 1. 29, heading 6.4. Id. 36 Gaillard and Pingel-Lenuzza, above n. 4, at 10. See also Reinisch and Weber, above n. 18, at 63 (submitting that ‘[s]ince international organizations can only act within the scope of their functional personality there is no room left for non-functional acts for which immunity would be denied’, and that, accordingly, ‘[t]he traditional view seems to be that functional immunity necessarily leads to absolute immunity’). 35

organization’s act is concerned. If the legitimate rights of individuals are to be the focal point of the analysis, one ineluctably enters a human rights discourse. In the next section, the immunity of international organizations will be seen, and reviewed, through the prism of the human/individual right to a remedy, or the right to access to a court. This right is notably enshrined in Article 6.1 of the European Convention on Human Rights (ECHR), pursuant to which ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

2. Right to a remedy In quite a few cases against international organizations before domestic courts, the private claimant who claimed to be wronged by an act of the organization, typically in employment matters, advanced that granting immunity to the organization violated the right to an effective remedy before a court as guaranteed by relevant international or regional human rights provisions. In the European context, this right is guaranteed by Article 6 ECHR. It is often also protected by domestic (constitutional) law. In the wellknown 1999 judgments of Waite and Kennedy, and Beer and Regan, the European Court of Human Rights, applying Article 6 ECHR to the case of claims against international organizations before domestic courts, explained that such courts can limit the right to access to a court if reasonable alternative means allow for the protection of the claimants’ rights. 37 This implies that domestic courts are expected to review alternative means of dispute settlement, e.g., internal procedures or arbitration, in light of Article 6 ECHR or similar protection. In so doing, they reconcile individual rights and the rights of the organization. Of course, this process is not without its dangers, as it typically requires the courts to pass judgment on intra-organizational complaints mechanisms. 38 This explains

37

ECtHR, Beer and Regan v. Germany, Appl. No. 28934/95, Judgment of 18 February 1999, para. 59; ECtHR, Waite and Kennedy v. Germany, Appl. No. 26083/94, Judgment of 18 February 1999, para. 68. 38 Cf. ILDC 3718 IT 2007, comment Chechi, A3 (warning that ‘the application of this evolutive approach depends on the accuracy with which judges assess the existence, nature and effectiveness of the remedies set up by an organization for the resolution of ... disputes’).

why domestic courts are at times not particularly keen on conducting such a review, and why, if they do so, they are prone to committing errors. 39 Yet clearly, when no complaints mechanism whatsoever has been put in place, a court will feel less inhibited to find a violation of Article 6 ECHR, as in such a case a court does not have to engage in a tricky substantive review of the complaints mechanism. 40 Still, also in such cases, the court will in fact give priority to one international obligation of the State (the human rights obligation) over another (the obligation to uphold the immunity of international organizations, e.g., as provided in a headquarters agreement). 41 In order to prevent the responsibility of the State to be engaged one way or another, and thus to do justice to both the interests of the claimant (access to justice) and the interests of the international organization (immunity), it has been suggested compelling the State to intervene in a dispute between a claimant and an international organization, and possibly condemning the State, for a violation of the right to a remedy, in the case where the immunity of the organization is upheld. 42 It is not clear whether this is procedurally possible in all jurisdictions. Yet more importantly, many States may take the view that discarding the immunity of an international organization that fails to provide an alternative remedy to a claimant is not a violation of international law and, accordingly, does not engage the 39

Cf. A. Reinisch, ‘The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals, 7 Chinese Journal of International Law 285, 302 (2008) (noting that ‘[w]hether national courts correctly assess the adequacy of the level of alternative legal protection afforded to staff members by administrative tribunals or other alternative dispute settlement mechanisms may be questionable in individual cases’); Angelet and Weerts, above n. 18, 9 (stating that ‘il est bien difficile de déterminer objectivement les critères … qui permettraient de conclure au caractère raisonnable de la voie alternative’). 40 E.g., the employment-related case against the African, Caribbean and Pacific Group of States before a Belgian court: Court of Appeal Brussels, 4 March 2003, L.M. v. Secretariat General of the ACP Group of States, Journal des Tribunaux 2003, 684 (stating that ‘rien n’indique qu’ il existerait des règles alternatives à l’immunité d’exécution revendiqué par le secrétariat ACP, offrant des voies de recours en cas d’inexécution par celui-ci des décisions prises à son encontre. La règle du droit au procès équitable tel que consacré par l’article 6, paragraphe 1, de la Convention EDH doit donc primer sur celle de l’immunité accordée par un accord de siège.’). 41 Cf., e.g., Court of Appeal Brussels, 4 March 2003, L.M. v. Secretariat General of the ACP Group of States, Journal des Tribunaux 2003, 685 (‘La règle du droit au procès équitable tel que consacré par l’article 6, para. 1, de la C.E.D.H. doit donc primer sur celle de l’immunité accordée par un accord de siège.’). In some cases, arguably, the conflict between the two obligations may be more apparent than real. Headquarters agreements typically require the international organization to respect the law of the land, and it may be submitted that the ECtHR forms part of the law of the land. Cf. E. David, Observations, under the judgment just cited, p. 687, nr. 14 (citing Article 30 of the Headquarters Agreement between Belgium and the ACP). Of course, a State may want to include respect more explicitly for Article 6 ECHR in the headquarters agreement in order to forestall any allegations of breaching the agreement and incurring State responsibility. Id., p. 687, nr. 18. 42 Angelet and Weerts, above n. 18, at 25.

responsibility of the State. Rather on the contrary, a rejection of immunity under those circumstances is arguably allowed, and even mandated, by the ECtHR under the Waite and Kennedy and Beer and Regan jurisprudence. 43 In this view, the immunity of international organizations is necessarily relative. There is some discussion as to whether the ECtHR really requires a ‘reasonable alternative means’ test. In Waite and Kennedy, the Court merely held that ‘a material factor in determining whether granting … immunity from … jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’, 44 thus seemingly not strictly requiring domestic courts to conduct a review of alternative means. 45 In addition, as Angelet and Weerts pointed out, in a number of later cases addressing the tension between State or parliamentary immunity on the one hand and access to justice under Article 6 ECHR on the other, the Court did not moot the ‘reasonable alternative means’ test, but instead used a number of other criteria to determine the proportionality of limitations of the right to a remedy, 46 and in fact upheld the fundamental character of the exception to the right to access to a court which is constituted by the immunity defence. 47 When the Court did refer to the test, such as in Zollmann, it appeared to deprive it of all practical value. In this case, while conceding that the claimant could not resort in concreto to the alternative means to protect his interests harmed by statements of a British member of Parliament, means that were identified by the Court as existing in abstracto, the Court affirmed the immunity of the member as upheld by a British court, thus not considering the absence of a practical remedy to be problematic. 48 Mutatis mutandis, this may imply that, in respect 43

Domestic courts may also tend to give priority to Article 6 ECHR for strategic reasons, as the ECtHR may condemn the State for not living up to its ECHR obligations, while no such court can condemn it for not complying with obligations under the headquarters agreement between the State and the international organization, such an agreement typically not providing for the establishment of a dispute settlement system. Cf. E. David, Observations, under Court of Appeal Brussels, 4 March 2003, L.M. v. Secretariat General of the ACP Group of States, Journal des Tribunaux 2003, 687, nr. 13. 44 Waite and Kennedy, above n. 37, at para. 68 (emphasis added). 45 See, e.g., Reinisch, above n. 39, at 292 (pointing out that the Court ‘did not make the availability of an alternative forum a strict prerequisite for immunity’). 46 Angelet and Weerts, above n. 18, at 9-19. 47 Id., at 19. 48 ECtHR, Zollmann v. United Kingdom, Application no. 62902/00, 23 November 2003, admissibility decision, pp. 15-16 (‘That members of Parliament cannot act with impunity even within the House is shown by the fact that in extreme cases, deliberately misleading statements may be punishable by Parliament as a contempt, while general control is exercised over debates by the Speaker of each House. It

of immunities of international organizations, the limitation of the claimant’s right to a remedy, constituted by the granting of immunity to the organization, might be warranted even in the absence of concrete alternative means to protect his rights. Whatever the merits of the argument that the ECtHR did not require that domestic courts perform a ‘reasonable alternative means’ test, it is clear from practice in ECHR jurisdictions that courts do perform such a test, as is also admitted by Angelet and Weerts. 49 It should be noted in this respect that the test did not originate in the Strasbourg chambers in 1999: before 1999, courts, e.g., in Germany, also reviewed alternative fora in light of the right to a remedy. 50 The Court’s 1999 jurisprudence only created additional momentum for more widespread testing of such fora. At this juncture, as can be gathered from an analysis of court practice dealing with the tension between immunities of international organizations and the right to a remedy, it is not so much a question of whether a ‘reasonable alternative means’ test ought to be performed, but rather of how this test should actually be conducted. In Europe, three tendencies are discernible as to the extent of the review of the immunity of international organizations in light of the right to an effective remedy (it should be noted that there is hardly any evidence of courts outside Europe conducting such a review). Some courts are reviewing in light of the ECHR, with some of them engaging in far-reaching review, and others in only marginal review. Others courts are not reviewing in light of the ECHR, but only in light of domestic constitutional law, the content of which, however, may be said to largely similar to Article 6 ECHR. A third category, finally, is not willing to review immunity in light of the right to a remedy. It should be noted that these tendencies do not necessarily take place along national lines. Instead, they appear to be transnational in nature, which implies that, within one jurisdiction, different tendencies may be at work at the same time. A fine example of a court engaging in far-reaching, substantive review on the basis of Article 6 ECHR of the internal procedure concerning the settlement of is true that neither of these aspects served to prevent, or sanction, the statement being made concerning the applicants. However, they remain relevant to the overall proportionality of the system and the balance between the competing interests.’). 49 Angelet and Weerts, at 21 (stating that national judges have been more demanding than the ECtHR). 50 E.g., German Federal Constitutional Court, Second Chamber, Hetzel v. EUROCONTROL, 10 November 1981, 2 BvR 1058/79.

administrative disputes within an international organization is provided by the Belgian case of Siedler v. WEU. 51 In this case, the court, examining that procedure in detail, came to the conclusion that it did not offer the guarantees inherent to a fair and equitable legal process. 52 Accordingly, the access to justice gap resulting from the international organization’s immunity from jurisdiction was held to be incompatible with Article 6 ECHR. In the literature, this far-reaching review has been applauded, 53 but it has also met with criticism, notably on the grounds that it would amount to jurisdictional overreaching for a court to examine the quality of the internal appeals procedure of an international organization. 54 This criticism appears to transform the (US) act of State doctrine into an act of international organization doctrine. Paraphrasing the seminal Underhill case of the US Supreme Court in this respect, this doctrine may be put as follows: ‘Every sovereign state is bound to respect the independence of every international organization, and the courts of one country will not sit in judgment on the acts of an international organization done within its own system.’ 55 Obviously, a strict interpretation of this doctrine may preclude any remedies and review, and give short shrift to the legitimate interests of individuals harmed by the acts of international organizations. Therefore, many courts seem to have satisfied themselves with providing some review, while at the same time paying due respect to the autonomy of the international organization and its internal dispute settlement procedures. An illuminating example is provided by the 2004 Swiss Consortium case. In this case, the court appeared to espouse a presumption of compatibility of the internal procedures of the international organization with human rights law, by holding that the headquarters 51

Siedler v WEU, ILDC 53 (BE 2003). In another Belgian case, against the ACP organization, the court of appeals conducted a similar qualitative review, which, although it was not as far-reaching as in Siedler, also led to the conclusion that the ACP failed to meet the requirements set out by Article 6 ECHR. See Court of Appeal Brussels, 4 March 2003, L.M. v. Secretariat General of the ACP Group of States, Journal des Tribunaux 2003, 685 (‘Le secrétariat A.C.P. n’apporte cependant aucun élément probant démontrant le rôle jurisdictionnel de ce Conseil, ni le fait qu’il présente le cas échéant toutes les conditions et garanties que supposent le droit d’accès à un juge.’). 53 Cf. Reinisch, above n. 39, at 299-300. 54 Id., comment M. Vidal. 55 Compare Underhill v Hernandez, 168 US 250, 252 (1897) (‘Every sovereign state is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.’). 52

agreement between Switzerland and the CERN (an international organization) was ‘intended to satisfy’ Article 6 ECHR, 56 and that a procedure merely providing for a single instance, without possibility of review, satisfied Article 6. 57 Such a presumption may also be gleaned from a 2005 German case against the European Patent Office, in which the German Constitutional Court held that the complainant failed to show that an internal complaints mechanism of the organization did not meet due process standards. 58 It has also been submitted in the literature that complaints mechanisms, notably international administrative tribunals, ordinarily meet basic human rights standards, 59 which of course raises the bar for a finding of non-compliance. In a similar vein, while not exactly going so far as to presume compatibility as a doctrinal point of departure, a Belgian court hearing a contractual dispute against ESA, 60 appears to have done just that. In line with the ECtHR’s jurisprudence, the court set out a ‘reasonably alternative means’ standard, pursuant to which the organization retains immunity as long as the individual harmed by the organization’s acts can call upon a reasonably available remedy within the organization’s administrative structures. One may wonder, however, whether, when applying this standard in the case, the court has not deferred too much to the organization, by in fact presuming a number of doubtful procedures and administrative steps to be compatible with Article 6 ECHR, e.g., the claimant’s calling on a national delegate with the organization, and the ombudsman procedure. 61 Possibly, this decision is a backlash against the earlier Siedler judgment. 62 At the same time, this deferential approach is in line with Beer and Regan and Waite and

56

ILDC 344 (CH 2004), H2:‘Article 24(a) of the Headquarters Agreement provided that CERN should have taken the appropriate measures in order to achieve a satisfactory settlement of disputes resulting from contracts to which the Organization was a party or other disputes of a private law nature. It was thereby intended to satisfy the right to fair proceedings regarding the protection of civil rights as contained in Article 6 of the ECHR though a system of arbitral proceedings foreseen in the general contract clauses. Such a system satisfied the requirements of Article 6 of the ECHR as interpreted by the European Court of Human Rights (see judgment in Case Beer and Regan v Germany, 18 February 1999).’ 57 Id., H3. 58 Federal Constitutional Court, Second Chamber, D. v. Decision of the EPO Disciplinary Board, 28 November 2005, 2BvR 1751/03, para. 11. Cf. Reinisch, above n. 39, at 301 (noting that ‘the Court very openly shifted the burden of proof to the applicants to demonstrate that the standard of legal protection received from or within an international organization was insufficient’). 59 Brower, above n. 18, at 83. 60 ILDC 1229 BE (2008). 61 Id., H3-H5. 62 Id., comment C. Ryngaert. Cf. above for Siedler.

Kennedy, which have also received their fair amount of criticism for unduly emphasizing organizational immunity over the right of access to a court.63 It has been argued in this respect that one ought to be careful not to expect too much from international organizations in terms of providing internal dispute settlement procedures, since, after all, international organizations are technically not bound by Article 6 ECHR. A Dutch court of appeals, for instance, held therefore, in a 2007 case, that it suffices that the international organization, the European Patent Office in this case, provides ‘comparable legal protection, which implies less far-reaching review’ (e.g., with respect to the right to a public hearing by the court). 64 While it is undeniable that international organizations cannot be parties to the Convention, and that, hence, they are not under an obligation to establish any dispute settlement mechanism, it is no less true that the State Party to the Convention whose courts are hearing the suit against the organization is bound by Article 6 ECHR and is under the obligation to provide a remedy to the claimant acting within its jurisdiction. The State can assume its responsibility in this respect by passing the buck onto the international organization. If the organization provides a system compatible with Article 6, the buck stops there. But if it does not, the State comes under the obligation to provide a remedy, and to possibly lift the immunity of the organization. The right to a remedy as enshrined in the ECHR and as interpreted by the ECtHR in the relevant cases indirectly involving international organizations does not countenance a more relaxed standard. While international organizations are not exactly under an obligation to provide for alternative means of dispute settlement, they have to face the consequences of not, or insufficiently, doing so: claimants will in such circumstances be entitled to a remedy before domestic courts (typically of the place of the seat of the organization). 65 Therefore, indirectly, Article 6 ECHR exerts pressure on

63

Cf., e.g., Gaillard and Pingel-Lenuzza, above n. 4, at 7, 12 (criticizing the Court for not verifying whether the internal Appeals Board of the Agency was truly independent); Reinisch and Weber, above n. 18, at 79. 64 LJN: BB5865, Court of Appeal The Hague, 06/1390, 28 September 2007. 65 This remedy will typically be granted under the law of the State, and not pursuant to the applicable regulations, if any, of the organization. In the past, apparently, some domestic courts dismissed suits against international organizations on the grounds that they lacked subject matter jurisdiction as they could not possibly apply the internal law of an international organization. Cf. Brower, above n. 18, at 68, in particular fn. 341.

international organizations to put in place complaints mechanisms that are in conformity with Article 6 ECHR standards. 66 Having discussed the first category of courts – the courts reviewing in light of Article 6 ECHR, whether or not in a manner deferential to the organization – let us now turn to the second category: those courts reviewing the organization’s acts in light of human rights law as enshrined in domestic law rather than international human rights instruments such as the ECHR. In Europe, (only) Italian and French courts appear to sideline the ECHR and to apply domestic (constitutional or other) law instead. In Italy, in any event, the interpretation of the relevant constitutional provision on the right to a remedy (Article 24 of the Italian Constitution) is very similar to the ECtHR’s interpretation, and is quite probably influenced by it. 67 Also within this category there are courts largely deferring to the organizations, and courts willing to pass judgment on the quality of the organizations’ internal complaint procedures. The Italian EUI case exemplifies the first (deferential) approach. In this case, concerning a labour dispute, the court satisfied itself with finding that a member of the staff of the European University Institute (characterized as an international organization) could have addressed his or her claim to a claims commission established under the convention setting up the EUI, 68 without inquiring into whether or not this commission functioned effectively. A commentator has observed that, under this jurisprudence, ‘practically any labour relationship with the Institute would seem to fall outside Italian jurisdiction’, 69 as indeed, the court itself entirely refrained from pronouncing on the quality of the internal proceedings.70 In a later Italian case, however, the court, hearing an 66

Compare Gaillard and Pingel-Lenuzza, above n. 4, at 12, who, while not propounding the application of Article 6 ECHR to international organizations, nevertheless require the organizations’ internal dispute resolution mechanisms to be independent, to make appeal available, and to be effective in terms of enforcement. 67 See however the comment by A. Chechi, ILDC 3718 IT 2007, A4, criticizing the court for not relying on ECHR jurisprudence. 68 ILDC 297 (IT 2005), H7 (Article 6(5)(c) of the Convention). It is also noted that, pursuant to Annex 2 to the Convention, the EUI’s High Council might designate the ECJ as competent to resolve disputes between the Institute and members of its staff. 69 Id., comment M. Iovane, A2. 70 Cf. also id., A3 (submitting that ‘the Court’s inquiry into the existence and effectiveness of the Institute’s system for the resolution of labour disputes was totally unsatisfactory. The Court limited itself to quoting a couple of articles where the setting up of this system is envisaged in principle. However, there is no further analysis on the composition of the commission, on its procedural rules, on the substantive norms it applies, or on the possibility of challenging its decisions before an appellate mechanism.’).

employment dispute with the international organization IPGRI, did pass judgment on the quality of the organization’s internal proceedings, but held that there were no alternative remedies, and that the internal remedy provided by the organization did not satisfy fundamental requirements of independence and impartiality as provided by the Italian Constitution. 71 It should be observed that Italian courts are apparently moving towards more far-reaching review, while in Belgium they are moving towards increased deference to the organization. When the organization does not provide for any review at all, in any case, a court will be hard-pressed to uphold the immunity of the organization. In this context, as far as the category of domestic courts applying domestic (as opposed to international) law in relation to the right to a remedy is concerned, a French court, in an employment case against the African Development Bank, held that the Bank could not avail itself of jurisdictional immunity because it had failed to establish an administrative tribunal with jurisdiction to hear complaints brought by its employees. 72 The court added that it would violate ordre public (i.e., a French legal concept) if it were to deny justice; 73 it did not mention Article 6 ECHR though. 74 Once a tribunal or a complaints mechanism has been made available by the international organization, however, French courts appear to readily decide that there is no denial of justice, irrespective of the quality or effectiveness of the mechanisms. 75 A third category of courts is, obviously, the category of courts refusing to provide any review at all. In Europe, this category is supposed to be non-existent, as Article 6 ECHR, as interpreted by the ECtHR, may require that domestic courts hearing disputes against international organizations inquire into whether there are reasonably alternative remedies against the organization for the individual. 76 Of course, as demonstrated above, courts 71

ILDC 3718 IT (2007). ILDC 778 (FR 2005), H1 (para. 3 of the judgment). 73 Id. The court referred to ‘un droit qui relève de l’ordre public international’. In so doing, the court did not refer to public international law, but rather to a concept that is traditionally used in French law so as not to apply foreign law, or in the case of the immunity of an international organization its constituent treaty, before a French court Cf. id., comment Y. Kerbrat, A3. 74 The Court’s failure to cite Article 6 ECtHR has been attributed to the predominantly non-European membership of the Bank. Cf. Reinisch, above n. 39, at 298. 75 Cf. Cass. (fr.), Chambre sociale, Cultier v. Eutelsat, 5 June 201, No. 98-44996 (ruling that an appeals commission had been established pursuant to the headquarters agreement with Eutelsat, and that accordingly the claim of denial of justice was baseless). 76 See for a pre-Beer and Regan example of a court refusing to consider available alternative remedies: Cass. (fr.), 1e civ, 14 November 1995, Hintermann v. Union de l’Europe occidentale (WEU), 124 JDI 141 72

may decide to pay lip-service to this test, and de facto refuse to provide any meaningful review. It is important to realize, however, that there is broad understanding that some review ought to take place in Europe. Although it may also be argued that general international law mandates that domestic remedies be available where the internal institutional procedure is non-existent or is not up to standard, 77 there are not many relevant recent cases available of courts from outside Europe addressing internal complaints procedures along the lines of the ECtHR’s jurisprudence. In the United States there are some cases of courts demonstrating their willingness to protect the rights of the aggrieved individual in a dispute with an international organization, but it should be noted that this protection, which is based on the US Constitution, only extends to US nationals; moreover, the balance has not yet come out in favour of the aggrieved individuals. 78 Other US case law held that employment-related disputes with international organizations are not reviewable by US courts in light of the immunity enjoyed by such organizations, immunity to which no commercial exception would apply. 79 This case law was confirmed in a 2005 decision (1997). This deferential approach now seems to have been supplanted by an approach that is friendlier towards the claimants: see the case against the African Development Bank, ILDC 778 (FR 2005). It should be noted that a few years after Beer and Regan, commentators have observed that, in spite of the European Court’s jurisprudence, ‘a private party’s access to the court is not systematically guaranteed’. Cf. Gaillard and Pingel-Lenuzza, above n. 4, at 10. 77 Compare Reinisch and Weber, above n. 18, at 67 (submitting that ‘there is a strong argument in favor of the existence of unwritten international law, be it a general principle of law or customary rule, which demands the availability of judicial or quasi-judicial remedies’); Herz, above n. 18, at 487. Contra the older Belgian case of Manderlier v. Organisation des Nations Unies and Etat Belge, 1st instance civil tribunal Brussels, 11 May 1966, 45 ILR 446, 452 (1966) (holding that there is no right to a public hearing by an independent and impartial tribunal under international law). It should be noted that the ICJ, in the Effect of Awards Case, set out a strong policy argument in favour of the UN providing an internal remedy for staff disputes. Cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Rep. 47, 57 (1954) (court stating that it would ‘hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals … that [the UN] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.’). The Court did not go as far as allowing the domestic court to set aside the immunity of international organizations and provide a remedy to aggrieved individuals, however. See Difference Relating to Immunity from legal process of a Special Rapporteur of the Commission on Human Rights (Cumaraswamy), ICJ Rep. 62, para. 66 (submitting that, ‘as is clear from Article VIII, Section 29, of the General Convention, any such claims against the United Nations shall not be dealt with by national courts but shall be settled in accordance with the appropriate modes of settlement that “[t]he United Nations shall make provisions for” pursuant to Section 29’). 78 Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985); People v. Mark S. Weiner, 378 N.Y.S.2d 966, Criminal Court of the City of New York, N.Y. County, 19 January 1976; Reinisch and Weber, above n. 18, at 81. 79 Cf. Mendaro v. The World Bank, 717 F.2d 610 (D.C. Cir. 1983); Broadbent v. Organization of American States, 628 F.2d 27 (D.C. Cir. 1980). In Rendell-Speranza v. Nassin, 832 F. Supp. 19 (D.D.C. 1996), the

involving the Asian Development Bank (an international organization), in which the court held that the treaty establishing the international organization was supreme, and that no ‘alternative remedy’ was available beyond the treaty. 80 According to this jurisprudence, disputes with the organization ought to be resolved on the basis of the remedies offered by the organization itself, and those remedies cannot be reviewed in light of any other, supposedly higher ‘human rights’ or ‘constitutional’ norms. A last category of courts may possibly be added here: those courts that refrain from reviewing the organization’s acts expressly, but that may do so impliedly. In a 1999 Danish case against UNICEF, the court held that ‘UNICEF should be considered immune from a lawsuit relating to differences of a civil law nature’,81 in view of, amongst others, a 1946 UN Convention ‘mandating that the UN establish appropriate modes of settlement of disputes arising out of contracts, or other disputes of a private law character’. 82 In so doing, the court may have implied that UNICEF’s internal remedies satisfied the requirements of Article 6 ECHR. 83 Needless to say, it is proper to have all arguments relating to review out in the open. One may conclude that there is undeniably a tendency in domestic courts to make the immunity of an international organization dependent on its putting in place effective internal complaints mechanisms, or making recourse to administrative tribunals available. That is only fair, as the individual should be able to exercise his right to a remedy somewhere. If access to justice is not possible within the organization, the domestic avenue may have to be resorted to, and domestic courts may be under an obligation to lift Court rejected the immunity of the International Finance Corporation in an employment case, but it should be noted that the case related to allegations of assault and battery, which were actionable in US courts pursuant to the immunity exception provided by Section 1605(a)(5) of the Foreign Sovereign Immunities Act (‘A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment’). 80 ILDC 321 (US 2005), H3 (‘The fact that Weinstock was dissatisfied with the administrative remedies offered by the ADB did not create a new exception to the ADB's immunity, nor was it enough to dissolve ADB's immunity as it had been established by treaty.’). 81 ILDC 64 (DK 1999), H3, para. 14 of the judgment. 82 Id.; Article 8, section 29(a), of the 1946 Convention. 83 ILDC 64 (DK 1999), comment J. Stokholm, A3 (‘This [the court citing the 1946 Convention] may indicate that the court felt the Danish company should have recourse against UNICEF through that avenue. It may also indicate that the court found the company was adequately protected, even if it could not sue in Denmark.’).

immunity in order to meet their human rights obligations vis-à-vis the complainant. 84 These obligations will only be met if courts do not solely ascertain whether the organization has made a complaints or dispute settlement mechanism available (‘the law on the books’), but are also willing to inquire into the quality and effectiveness of such a mechanism (‘the law in action’). 85 It should be realized, however, that the above analysis has focused on disputes of a private/labour/contractual nature rather than on more politically sensitive disputes, e.g., in relation to international peacekeeping. While it would be desirable for an organization to also provide for alternative remedies in respect of those disputes, one may wonder whether a State should necessarily forfeit the organization’s immunity before a domestic court where it fails to so provide. 86 After all, the justiciability of such disputes may be open to doubt in a purely domestic context anyway, given their political overtones and the attendant reluctance of the judiciary to embarrass the political arm (in some jurisdictions, courts may invoke the political question doctrine in order to dismiss such claims).

3. Immunity from jurisdiction v immunity from execution

Another issue in respect of the immunity of international organizations that may arise in domestic courts is whether, and to what extent, international organizations enjoy immunity from both jurisdiction and execution. Surprisingly, in many headquarters agreements with international organizations only immunity from execution/enforcement is regulated. Various courts have inferred immunity from jurisdiction from the conferral of immunity from execution in such agreements, however. In a 2005 Italian case, the court held that the formulation of Article 1 of the Protocol on the Privileges and Immunities of the European University Institute – which only regulated immunity from

84

Compare Reinisch and Weber, above n. 18, at 68. Compare Reinisch, above n. 39, at 305 (submitting that ‘there will be an increasing need to examine the actual level of protection granted by international administrative tribunals’); Reinisch and Weber, above n. 18, 93-110 (criticizing, at 110, the ILO Alternative Tribunal’s appointment procedure, its denial of oral hearings, and the lack of clarity of its applicable law, and suggesting that domestic courts ‘reassess their readiness to accept an unqualified immunity from suit of defendant international organizations.’). 86 Brower, above n. 18, at 34 et seq. (arguing that the expansion of municipal court jurisdiction would impair the capacity of international organizations to discharge their obligations with respect to peace, security, human rights, and other controversial issues). 85

execution – presupposed that the Institute also enjoyed immunity from jurisdiction whenever its official activities were concerned. 87 Similarly, in a 2001 Belgian case, the court seems to have inferred from a provision in the headquarters agreement with the League of Arab States that the goods and assets which the League uses for the exercise of its official activities in Belgium enjoy immunity, a phrase which denotes immunity from execution, that the League may also enjoy immunity from jurisdiction. 88 This inference is logical, as ordinarily an international organization will have to appear in court before measures of execution are considered. Occasionally, courts may also infer immunity from enforcement from jurisdictional immunity. In a 2001 Russian case, the court appeared to have deduced that an international organization’s tax exemption – which may be characterized as immunity from jurisdiction – also implied that any decision concerning taxes could not be enforced against the organization (i.e., immunity from execution). 89 It should also be noted that in 2003 a Belgian court, while holding that immunity from execution cannot be assimilated to immunity from jurisdiction, 90 applied the ECtHR’s Waite and Kennedy jurisprudence, pursuant to which an international organization’s immunity from jurisdiction is dependent on the organization providing means for the settlement of disputes between the organization and aggrieved persons, to the immunity from execution of an international organization. 91

87

ILDC 297 (IT 2005). ILDC 42 (BE 2001), comment C. Ryngaert, A2. The case mainly revolved around the Belgian federal parliament’s failure to approve the headquarters agreement, however. 89 ILDC 26 (RU 2001), comment M. Fedorova, A6 (‘A6 In light of the summary of this case in the Information Letter, the Court seemed not to distinguish clearly between, on one hand, the issue of tax exemption and, on the other hand, immunity from enforcement of decisions concerning taxation. The decision referred only to “immunity” but it seemed to imply both issues, ie that the organization enjoyed special status only in respect of activities relevant to its stated charter purposes. The Court did not expressly say that the decision concerning taxes for commercial activities could be enforced against the organization; it stated that taxes levied on such income “were to be paid to the state budget”. However, the Court did hold that “these sums of income are not covered by the immunity”, from which can be inferred that such a decision could be enforced.’). 90 Court of Appeal Brussels, 4 March 2003, L.M. v. Secretariat General of the ACP Group of States, Journal des Tribunaux 2003, 684. 91 Id., 685 (‘Il s’agissait en l’espèce [Waite and Kennedy] d’une question relevant de l’immunité de juridiction, mais le raisonnement de la Cour devrait s’étendre aussi à l’immunité d’exécution, puisque sa jurisprudence considère que l’exécution des décisions de justice fait partie intégrante du procès équitable’). 88

4. Concluding observations

This article has revisited the topic of immunities of international organizations, in particular in relation to disputes of a private law nature, on the basis of recent practice in domestic courts. Some apparently contradictory tendencies in the law of organizational immunity have been identified. On the one hand, it has been shown that such immunity is typically construed rather broadly; even if courts espouse the view that immunity should only be accorded when it is functionally necessary, it appears that, in fact, immunity becomes virtually absolute, as most activities of the organization somehow relate to the fulfilment of a function of the organization. On the other hand, however, there are instances of courts willing to restrict the immunity of international organizations. First, they might be unwilling to uphold the immunity of organizations if immunity has not been enshrined in a treaty (e.g., a headquarters agreement), sometimes adding that the granting of immunity is not mandated by customary international law. Secondly, many courts, especially in Europe, balance the immunity of an international organization with the aggrieved individual’s right to a remedy (access to justice), in accordance with ECtHR jurisprudence that requires, or at least strongly urges, States to inquire into whether the organization has provided for an alternative mechanism of dispute settlement (i.e., alternative to domestic litigation). It is not yet entirely clear from State practice how detailed that inquiry should be. Some courts presume that such mechanisms comport with due process/right to a remedy standards, while others review the quality of their procedures in light of, e.g., Article 6 ECHR (the provision dealing with the right to a remedy) or analogous domestic guarantees. The author supports the limitation of organizational immunity, albeit not on the basis of the functional necessity doctrine (which may erroneously equate State immunity and organizational immunity) but rather pursuant to a human rights approach. International organizations ought to provide for internal or external mechanisms of dispute settlement so as to make sure that aggrieved individuals can somehow have their day in court. Those mechanisms should be put in place for any complaint, not only in

case of functional necessity. 92 If they are not, or are inadequately provided, organizations forfeit their right to immunity. Only this will ensure that international organizations are subject to the rule of law, 93 and accountable for their wrongful acts. 94 This subjection to the rule of law may at the same time enhance the international support which international organizations might muster, 95 while, given the mundane nature of most private law claims, hardly interfering with their work. When lifting immunity risks eroding international support for the mission of an organization and when aggrieved individuals’ claims are not of a garden-variety nature – caution is warranted, however. It may be submitted that, for instance, allowing suits against an international organization in relation to wrongful acts committed in the context of peace operations may weaken the willingness of its Member States to contribute troops to peace operations, and ultimately weaken the world’s peace and security structures. While it is obviously appropriate for such an organization to provide for remedies for the victims of those wrongful acts, it may be a bridge too far for a domestic court to call an organization which has failed to do so, to account by lifting its immunity. Therefore, one can have some understanding for the Dutch district court’s dismissal in 2008 of the case against the UN for its troops’ failure to prevent the genocide in Srebrenica (irrespective of any substantive liability that may attach to the UN’s actions), on the grounds that ‘it is in principle not at the discretion of a national court to give its opinion on the “necessity” of the UN actions within the functional framework [set out in Article 105 of the UN Charter, which stipulates the functional immunity of the organization]’.96 92

Contra Brower, above n. 18, at 72-74 (arguing that international organizations ought to give a waiver of immunity in proceedings before domestic courts where it is not functionally necessary for the organization to defend its immunity, and that only in case of functional necessity should alternative means of dispute settlement be set up). 93 Herz, above n. 18, at 483 (stating that international organizations should abide by the rule of law). 94 Contra Brower, above n. 18, at 76 (noting that municipal courts had only limited influence on accountability, and that international organizations themselves ‘initiated the movement towards increased accountability’). 95 Herz, above n. 18, 524 (arguing that broad assertions of immunity ‘may incur significant reputational harms and therefore compromise an [international organization]’s ability to achieve its objectives’). 96 LJN: BD6796, Rechtbank 's-Gravenhage, 295247 / HA ZA 07-2973 Judgment in the incidental proceedings, 10 July 2008, official translation as available on www.rechtspraak.nl, para. 5.14 (adding: ‘A testing on the merits or comprehensive testing is also contrary to the ratio of the immunity of the UN as enshrined in international law. The Court subscribes to the State’s assertion that for this reason domestic courts should not assess the acts and omissions of UN bodies on missions such as the one in BosniaHerzegovina but with the greatest caution and restraint. It is very likely that more far-reaching testing will have huge consequences for the Security Council’s decision-making on similar peace-keeping missions.’)

In any event, a contrario, in private law or employment disputes the repercussions of subjecting international organizations to the rule of law by lifting their immunity where they fail to provide adequate means for aggrieved individuals to protect their rights, cannot be considered to be more adverse than those of subjecting other actors, e.g., States or private corporations, engaging in similar activities to the rule of law. If indeed, as the International Court of Justice stated as early as 1949, in the context of the international legal personality of international organizations, the nature of the subjects of international law ‘depends upon the needs of the community’, 97 there are few reasons to grant immunity to international organizations for the said disputes if they fail to appreciate the accommodation which the international system grants them in the form of allowing them to settle disputes internally.

97

ICJ, Reparation for Injuries Suffered in the Service of the United Nations, advisory opinion of 11 April 1949, ICJ Rep. 1949, 174.