Title: The Immunity of International Organisations and why it

should be restricted.

Introduction

The development and increasing significance of international

organisations, and their roles in diverse fields has brought

to the fore the issue of the feasibility of the rules

regulating their operation as they relate to the needs of

modern justice. The scope of the application of organisational

immunity in particular, has been debated upon and has been

addressed by the courts with increasing frequency.1 Presently,

the need to protect international organisations is seen as the

main concern in the regulation of their immunities.2 This was

also regarded as the basis for sovereign immunity for States

for some time, until it became generally accepted that a State

could submit to the jurisdiction of the courts of other States

1Council of Europe Report on the Privileges and Immunities of InternationalOrganisations (1970). The report notes the various privileges and immunities granted to organisations, ‘those which are most open to criticism are immunities from jurisdiction’ (Council of Europe Report, 71).2 E. Gaillard and I. Pingel-Lenuzza, ‘International Organisations and Immunity From Jurisdiction: To Restrict or To Bypass’ (2002) 51 ICLQ, 1.

1

in an increasing range of circumstances.3 This development was

not entirely foreseeable judging from the writings and case-

law of nineteenth and early twentieth century. It was often

held that there could be no distinction based on the nature of

the activities of the State, since State activities by

definition, involved the exercise of its sovereignty.4 For even

acts that could be performed by individuals, a State could not

be subjected to the jurisdiction of domestic courts ‘without

striking an intolerable blow on its dignity’.5 However, the

expansion of the rights and privileges of States coupled with

the increase in the number of disputes they were involved in

and the growth and support of the principle of legality led to

the desertion of this crude conception of the requirements of

sovereignty, and the adoption of the principle of restrictive

State immunity. Nevertheless, the doctrine of restrictive

State immunity does not address the unique needs of

international organisations.6 As a result, a different model

was adopted; the principle of ‘functional immunity’. This

3 Ibid4 Ibid5 Ibid, the decision by the US Supreme Court in The Schooner Exchange v McFaddon, 7 us 116, 137 (1 Cranch) makes a clear statement on this principle.6 M. Singer, ‘Jurisdictional Immunity of International Organisations: HumanRights and Functional Necessity Concerns’ (1995-96) 36 VJIL 53, 56.

2

principle posits that international organisations are entitled

to such immunities as will enable them exercise their

functions in the fulfilment of their purposes.7 The principal

argument advanced to justify this immunity, particularly with

respect to States in which their headquarters are located is

that organisations have no territory, therefore their

independence and efficiency can only be guaranteed by granting

them functional immunity in carrying out their purposes.8

However, many commentators, courts and international

organisations have taken the principle of functional immunity

to illogical limits.9 This broad conception of immunity of

international organisations now presents difficulties similar

7 C. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge: Cambridge University Press, 2005) “370”; J. Klabbers, An Introduction to International Institutional Law (Cambridge: Cambridge University Press,2002) “148”; P. Sands and P. Klein, Bowetts Law of International Institutions (London:Sweet and Maxwell, 2002) “487”. 8 n 2 above, 4.9 Based on the Conventions conferring immunity on international organisations, bilateral agreements between the organisation and host states and sometimes, customary law, judges seem bound to grant immunity toany organisation that requests it. The benefit of such immunity may be refused in some cases. For instance, it may be refused on the basis that the organisation waived its immunity, though such waiver is rare. (n 2 above, 2). Similarly, alternative dispute settlement mechanisms are either weak or non-existent. Pingel-Lenuzza observes, “according to the dominant theory, it is the existence of these alternative means of dispute resolution that justifies the absolute character of the immunity of international organisations, for the reason that they neutralize this absolute character.”(n 2 above, 2-3).

3

to those of State immunity under traditional international

law.10

This essay analyses and critiques the application of the

principle of functional immunity of international

organisations, stressing that normative and non-normative

factors require a revision of the existing application of

immunity.

To place the arguments in perspective, the first section

discusses the sources of functional immunity.

Sources of functional Immunity

Immunity conferring agreements date back to the beginning of

the nineteenth century.11 By the 1940’s, several immunity-

10 Robert Jennings has stated that arguments in the context of internationalorganisations “which make recourse even by analogy to the legal position ofsovereigns is wholly unnecessary and illogical”. R. Jennings, Foreword to P. Bekker, The Legal Position of Intergovernmental Organizations: a functional necessity analysisof their legal status and immunities. (Boston: Martinus Nijhoff, 1994) “v, vii”. However, this statement surely depends on the prescribed analogy that is drawn. Although the doctrine of restrictive State immunity cannot be applied en bloc to international organisations, appropriate comparisons can be drawn.11 J. Kunz, ‘Privileges and Immunities of International Organisations’ (1947) 41 AJIL, 828-830.

4

conferring instruments proliferated the international arena.12

This section discusses different conventional sources that

confer immunity on international organisations.

Constitutions: Constitutions are common instruments that

contain provisions on organisational immunity.13 Reflecting the

importance of immunity in constituent instruments, Article 105

of the United Nations Charter confers immunity on the United

Nations ‘as necessary for the fulfilment of its purposes and

independent exercise of its functions.’14 Similarly, the

charter of the Organisation of American States stipulates that

the organisation ‘shall enjoy in the territory of each Member

State, the capacity, privileges and immunities as are

necessary for the exercise of its functions and the

accomplishment of its purposes.15 This broad scope of immunity

is the first obstacle that opponents of absolute immunity face12 n 6 above, 68.13 ‘clauses concerning privileges and immunities can be found in the constituent instruments of almost every international organization…the constituent instruments of most international organisations now existing provide for at least the basic privileges and immunities of the organization.’ Bekker, n 10 above, “123”.14 Article 105 ‘has ever since served as a model for similar provisions in the legal instruments of a wide variety of international organisations.’ Bekker, n 10 above, “127”.15 Charter of the Organisation of American States, 1609 U.N.T.S 119, art 103. Art 104 further states, ‘the Representatives of the governments of thecouncil, the personnel of their Delegations, as well as the Secretary General and the Assistant Secretary General of the Organization, shall enjoy the privileges and immunities necessary for the independent performance of their duties.’

5

in their intellectual combat.16 Constitutions are autonomous

structures meant to achieve localized expectations.17 This is

clear during the negotiation and adoption. They are prepared

through a process of deliberation and bargaining where the

Member States seek to frame organisations in ways that reflect

their orientation.18 The UN Charter aptly captures this model.

It claims that its objective is to rescue humanity from the

scourge of war; however, it would be naïve to believe that the

drafters had the complete benevolence toward humanity when

they prepared it.19 In the first instance, it is a victors’

charter, which is the reason why only five States are

entrusted with veto powers. In reconciling this with the

issue of organisational immunity, one has to call to mind the

limited number of statesmen responsible for the drafting of

the Charter. According to Bekker in his analysis on the travaux

preparatoires of Article 104 of the Charter;

The report of the Rapporteur of

Subcommittee IV/220 as approved by the16 K. Tesfagabir, ‘The State of Functional Immunity of International Organisations and Their Officials and Why It should be streamlined’ (2011) 10 Chinese Journal of International Law, 101.17 Ibid18 Ibid19 Ibid20 An offshoot Commission tasked to prepare the functioning provisions of the organisation.

6

Committee, paragraph 1 laid down a rule

binding all member States from the date the

Charter would enter into effect. The

Committee further opined that the rule set

forth in paragraph 1 should apply in any

circumstances, its authority being in no

way subordinate to the exercise by the

General Assembly of its power, under

paragraph 3 of draft article 105, to make

recommendations or propose conventions to

the member State for determining the

details of the application of paragraphs 1

and 2.21

This observation on the work of Committee IV/2 exposes how

provisions on immunity are drafted and the importance

organisations attach to them. The Commission’s final

submission is fashioned in a way that organisations may escape

the questioning of their immunity in retrospect. The

Rapporteur wrote:

21 Bekker, n 10 above, “125”. (emphasis added).

7

The draft article proposed by the Committee

does not specify the privileges and

immunities respect for which it imposes on

Member States…the terms indicate in a

general way all that could be necessary to

the realization of the purposes of the

Organisation…it would moreover have been

impossible to establish a list valid for

all the Member States…but if there is one

certain principle it is that no member

state may hinder in any way the working of

the Organisation or take any measures the

effect of which might be to increase its

burdens, financial or other.22

Some may argue that this does not typify the wider segment of

international organisations, which are not established to

balance delicate issues of power and politics as the UN. It is

a legitimate concern therefore it should be considered.

However, the analysis is accompanied by a caveat. First, the

22 ‘This principle has provided the basis for unjustifiably broad claims of jurisdictional immunity on the ground that any judgement against an international organization by a municipal court would constitute a ‘disposition’ of the organisation’s collective fund.” n 6 above, 85.

8

provision on immunity is a guidepost to many organisations.

Therefore, it is inevitable that they consciously or

unconsciously “bear the stain of the delicate craftsmanship of

the provision.”23 On the contrary, Brower writes, “article 105

gave birth to a more limited breed of international immunities

based on the functional necessity doctrine. The functional

necessity doctrine’s underlying premise is simple and flows

from reciprocal notions of good faith”.24 There is no doubt

about the “limited breed” nature of functional immunity. It is

supposed to serve a limited purpose. However, this is not

exactly reflected in practice. As long as immunity is

concerned international organisations have been unfaithful in

contrast to Brower’s “good faith” expectation, in their

international dealings.25 This is apparent in the tenacity of

international organisations in claiming broad immunity.

It is therefore important that caveats are embodied in the

immunity clauses of constitutions. This can also be done in

other instruments such as multilateral agreements. Xxxx a few

will be sampled hereunder....

23 n 16 above, 102.24 C. H. Brower, ‘International Immunities: Some Dissident Views on the Roleof Municipal Courts’ (2000) 41 VJIL, 3-5.25 n 10 above, 128.

9

General Multilateral Agreements on Immunity (GMAI): GMAI

supplement constitutional provisions on immunity.26 They

provide specific rules on how organisations should consummate

its functional immunity. GMAI also shed light on the intention

of Member States and how they conceive immunity.27 The UN

General Convention on the Privileges and Immunities of the UN28

is one of the widely ratified immunity instruments.29 It

contains detailed provisions on the immunity of the UN and its

officials. Article II, Section 2 confers “immunity from every

form of legal process” to the UN. This article led to debates

as to its consistency with the UN Charter. The Charter confers

immunity on the UN “as are necessary for the fulfilment of its

purposes”. Some interpret the article to expand the limits of

the Charter while others say the General Convention clause is

at par with the immunity provision in the Charter.30 However,

it is more practicable that the Charter prevail over the

Convention. Also, if reference is made to the travaux preparatoires

26 n 10 above, 129.27 n 16 above, 103.28 Hereinafter referred to as the General Convention.29 Convention on the Privileges and Immunities of the United Nations, 1946. 1 UNTS. 15.30 n 16 above, 103.

10

of Article 105, it buttresses the fact that the Charter is

construed along the lines of functional immunity, which is

limited immunity.

The UN in many cases has asserted that it benefits from

absolute immunity. Courts are divided on this issue. While

some interpret both instruments as providing the UN with

absolute immunity, others stress that immunity applies only in

situations that obstruct the execution of its functions.31

The General Convention also confers immunity on officials and

experts of the UN.32 The application of these types of immunity

(like any immunity regime) suggests that they are alternative

dispute resolution mechanisms. Article II, Section 29 of the

General Convention states that “the United Nations shall make

provisions for the appropriate modes of settlement of…disputes

arising out of contract or other disputes of a private law

character to which the United Nations is a party”.33 Some claim

that the UN has implemented Article 29 by including

31 Ibid32 Article V, Section 18, states that officials enjoy immunity from jurisdiction only with respect to their official acts and words spoke or written in an official capacity. Article VI Section 22 and 23 provides immunity to experts in missions of the UN who assume specific and temporarymandates from the UN. This class of immunity is also limited to official functions during the mission. 33 n 38 above, art. III, Section 29.

11

arbitration clauses in lease agreements, purchase contracts,

established public liability insurance against personal injury

and so forth.34 True, yet, they do not address claims that may

result from ‘public actions’. An example is the sanction-

imposing procedure of the Security Council.35 This will be

discussed in the preceding sections.

As previously mentioned, the UN immunity regime has served as

a beacon to other organisations. For instance, the General

Agreement on Privileges and Immunities of the council of

Europe (1949) has an identical provision. It states that “the

Council, its property and assets, wheresoever located and by

whomsoever held, shall enjoy immunity from every form of legal

process”. An identical provision can also be seen in Article

II of the Agreement on Privileges and Immunities of the OAS.36

Bilateral Agreements: Another conventional source of

organisational immunity is bilateral agreements. They control

the interaction of international organisations at domestic

34 n 6 above, 85.35 R. Wilde, ‘Accountability and International Actors in Bosnia and Herzegovina, Kosovo and East Timor’ (2006) 7 ILSA JICL, 456.36 Agreement on Privileges and Immunities of the Organization of American States, 1949.

12

levels, providing detailed and clear cut accommodating rules.37

Bilateral agreements are platforms where States could

conveniently negotiate restrictive immunity regimes which

allow them to be in better negotiating positions than in

multilateral settings.38 However, this is not usually evident

in practice.39 Bilateral agreements of note include the France-

International Police Organisation (INTERPOL) and AU-Ethiopia

headquarters agreements. The France-INTERPOL agreement confers

immunity on INTERPOL in contracts and motor vehicle accidents

but not in private interactions.40 The agreement commendably

included dispute settlement mechanisms41 that were missing or

loosely framed in other agreements.42 Conversely, the

headquarters agreement between the AU and Ethiopia

incorporates a different immunity regime. It integrates both

37 Bekker, n 10 above,136; Klabbers, n 7 above, “161”; H. Schermers and M. Blokker (eds), International Institutional Law (Leiden: Martinus Nijhoff , 2003) “1072” and “1114” ; A. Muller, International Organisations and their Host States (Leiden: Martinus Nijhoff 1995). “151”.38 n 16 above, 106.39 It seems as though international organisations, in many cases, manage to adopt favourable agreements. This is evident in terms of the robust disputesettlement mechanisms. 40 Agreement between INTERPOL and the Government of the French Republic regarding INTERPOLs Headquarters in France, 3 November 1982 (as amended), GA Res AGN/51/RES/1.41 Ibid, article 24. The Permanent Court of Arbitration has jurisdiction overissues that emanate from the head quarters agreement.42 Several headquarters agreements provide dispute settlement procedures forissues that arise from the head quarters agreement.

13

functional and mainstream immunity.43 Following the agreements,

the immunity accorded to diplomats by virtue of the Vienna

Convention on Diplomatic relations is tantamount to the

immunity enjoyed by the AU officials.44 Though diplomatic

immunity and organisational immunity share some communality,

it is unfitting to put them in one context as such broad

immunity may jeopardize local interests.45

Customary International Law: There is controversy as to

whether customary international law is a source of

organisational immunity. As previously noted, immunity

developed along conventional sources and its development has

been concretised by the UN immunity regime. With universal

ratification of the General Convention, the functional

immunity regime of the UN may have attained the status of

43 Agreement between the AU and the Federal Republic of Ethiopia on the Headquarters of the African Union, 25 April 2008. Article 4 of the convention states, “The General Convention and the Vienna Convention shall be applicable mutatis mutandis to the AU, the Commission and its property, funds and assets, the headquarters, premises and facilities of the Commission”.44 Ibid. Article 14 states that “the Chairperson, the Deputy Chairperson, theCommissioners and Officials of the Commission of Professional 4 (P4) rank and above shall have, in respect of themselves, their spouses and dependentchildren such privileges and immunities as are accorded under the Vienna Convention and the General Convention.”45 Amerasinghe, n 7 above, “315”.

14

customary international law.46 This notwithstanding, one has to

go beyond the customary status of the UN and examine whether

the entire subject, on its own right, has attained customary

status.47 Bekker argues that the status of the General

Convention does not reflect the customary status of functional

immunity as a whole. Conversely, Brower ties the “customary”

status of the General Convention to the whole jurisprudence of

functional immunity.48 However, there is no tangible “evidence

that shows the relationship as more than a mere borrowing of

ideas”.49 This should also be measured up with the cynicism

others hold on the customary nature of the entire immunity

regime. For example, Schermers states “the uncertainty about

the lack of its precise scope and content decreases somewhat

the utility of customary international law as a solid legal

basis for granting privileges and immunities to international

organisations in general”.50 Similarly, Singer writes,

‘although customary law on the jurisdictional immunity of the

United Nations is relatively well developed, there is little

persuasive evidence of customary norms delimiting the

46 n 16 above, 107.47 Ibid. Scholarship is divided on this issue.48 n 24 above, 22-23.49 n 16 above, 108.50 Schermers, as quoted in Bekker n 10 above, 123.

15

jurisdictional immunities of other specific international

organisations, or of international organisations in general.’51

One must also consider, even in relation to the UN, which area

of immunity has attained customary status. There should also

be a distinction between the customary nature of functional

immunity and the scope of such immunity. This is because the

assumption of customary international law is usually silent on

its scope. For instance, the customary nature of the UN’s

immunity does not necessarily reflect the extent of its

immunity.52 Xxxx introduce or hint on the next subheading.

Domestic Legislation: Like bilateral agreements, domestic

legislation regulates the interaction of an organisation in a

domestic context.53 They incorporate principles that are

embodied in international immunity instruments, and contain

detailed provisions and domesticate important issues that are

common to these instruments.54 An example of such instrument is

the International Organisation Immunities Act (IOIA) which

51 n 6 above, 98.52 n 16 above, 108.53 Ibid54 Ibid

16

governs functional immunity in the United States.55 It states

the immunities of international organisations within the

country. The immunity clause provides that “international

organisations shall enjoy the same immunity from suit and any

form of judicial process as is enjoyed by foreign

governments”.56 This has led to the discussion on whether the

provision bears jure imperi-jure gestitionis distinction. Nevertheless,

the governance of immunity at a domestic level is a delicate

issue as the government has to maintain a balance between

domestic and international interests.57

The previous section exposes the tendency for international

organisations to claim broad immunity contrary to the basic

tenet of functional immunity that dictates immunity must fit

the functional needs of an organisation.58 As a result, certain

practical difficulties arise.

Problems of Functional Immunity

55 United States International Organisations Immunities Act, 29 December 1945, 22 U.S.C., Section 288.56 Ibid. Section 2, paragraph B.57 n 16 above, 109.58 n 2 above, 2.

17

As it is widely argued, international organisations are

justified in claiming restrictive immunity for functional

purposes. However, it is difficult to read this in the

prevailing practice as they often tend to claim absolute

immunity.59 This section shows the extent to which

organisations claim immunity beyond ordinary limits. It also

demonstrates how the functionality rationale is losing its

validity due to broad claims.

In Dupree Associates Inc v OAS60, the plaintiffs sued the secretariat

of the OAS seeking damages for breach of service contract. The

secretariat asked that the case be dismissed on the ground of

organisational immunity, stating that the IOIA provides

international organisations the same level of immunity

(absolute immunity) as sovereigns. In rejecting the

defendant’s argument, the court stated that the legal action

arose from a commercial activity of the organisation;

therefore the organisation could not claim immunity.61 This

rationale was visited by the US District court in US v Melekh,62

59 A. Reinisch and U. Weber, ‘In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organisations, the Individuals Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’, (2004) 1 IOLR, 59.60 Dupree Associates Inc. v OAS [1982] 63 ILR, 92.61 Ibid 62 US v Melekh, 190 F.Supp. 67 (S.D.N.Y. 1960).

18

where the defendant, a citizen of Russia, was charged for acts

of espionage.63 The court rejected the defendants’ contention

that the immunity granted by Article 105 of the UN Charter is

“similar to the immunity granted ambassadors and public

ministers through the civilised world, including specifically

immunity from jurisdiction.” It stated that the alleged acts

that formed the basis of the indictment were not “necessary

for the fulfilment of the UN purposes, nor were they

“necessary for the independent exercise” of the functions of

Member States representatives and UN officials “in connection

with the UN Organisation.”64

Melekh shows how functional immunity may be stretched to

illogical limits. In the same vein, it endorses a restrictive

reading of the immunity provision.

Italian courts have also challenged this broad application of

immunity. In INPDAI v FAO65 the plaintiff who rented a building

to the defendant in Rome requested that the defendant pay a

higher rent. The FAO rejected to the jurisdiction of the court

stating that they had immunity from legal action. The Court

63 Ibid 64 Ibid65 Instituto Nazionale di Previdenza Per 1 Dirigent Di AziEnde INDUSTRIALI (INPDAI) v FAO, (1982) UNJYB, 234.

19

rejected the objection stating that FAO cannot claim immunity

in private contracts as the one in issue.

In BRSAK v the UN et al66, the UN and some top officials were sued

for sexual harassment in the US District court. The

defendants’ objected to the court on grounds of absolute

immunity. The court ruled in the defendants favour. This

decision was affirmed on appeal on similar grounds. The court

interpreted the UN charter and the General Convention to

confer absolute immunity on the UN. There is difficulty in

relating this decision to the functionality argument when the

necessity of the alleged act is put against the function of

the organisation.

In Mothers of Srebrenica67, the Dutch government argued that the UN

is immune from suit in a case relating to a compensation claim

for an alleged failure of the latter to prevent the commission

of genocide. The court held that the “absolute immunity” of

the UN is established in “international law practice”. Though

the customary status of the UN immunity is not widely66 BRSAK v the UN et al (2008) S.D.N.Y, 318 (During the proceedings, the US District Attorney for Southern District of New York wrote to the Court supporting the immunity claim of the UN and its officials. According to theletter, “…the UN…is absolutely immune from suit and legal process in the absence of an express waiver”. 67 Mothers of Srebrenica et al v State of the Netherland and UN, The District Court of TheHague, Judgement of July 2008.

20

disputed,68 the court should have, first, tried to discern UN

immunity from conventional sources. Because, as previously

mentioned, the assumption of customary law may not help in

determining the extent of immunity. The court should also have

examined the functional utility, instead of taking a wholesale

approach of immunity in respect of the alleged conduct.

These cases expose an exaggerated reading, and in some

instances application of functional immunity. However, what

really comes to mind is the delusion as to the meaning of

functional immunity. The notion of functional immunity is an

elusive one. Though very appealing at face value for its

apparent reasonableness, its precise standard of application

is less than clear. Thus it is susceptible to different

interpretations.69 Regrettably, the ICJ has not substantively

dealt with the scope of functional immunity nor has it on a

primary basis decided if it is absolute or restrictive.70 The

closest the ICJ has come to these addressing these issues was

in the two advisory opinions it rendered relating to the68 That is if that is what the court is referring to.69 Muller for example writes, “an international organisation is entitled to immunities to the extent that it requires them for the effective fulfilmentof its tasks”, n 37 above, “151”; Singer argues, “an organisation is entitled to no more privileges and immunities than it strictly needs”, n 7 above, 68; Bekker, on the other hand, favours immunity that is commensuratewith the object of an organisation, n 10 above, 114.70 n 16 above, 114.

21

application of the General Convention to the two special

Rapporteursxxx of the UN. It nevertheless did not shed much

light on the issue and ended up painting an unclear picture.71

Human Rights and Functional Immunity:

A new frontier for challenging immunity defences is human

rights. These defences have been evident in disputes involving

both states and international organisations.72 Human rights in

the context of international organisations can be seen in two

cases. First, an ordinary activity of an international

organisation may fall below human rights standards. An example

is the criticism of the Security Council sanction imposing

procedures.73 Listing or delisting of terrorist-supporting

entities,74 and compensation claims.75 The ordinary activities

of international organisations may also affect individual71 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the UN Advisory Opinion, ICJ Reports 1989, 177; Differences relating to Immunity from legal process of a Special Rapportuer of the Commission on Human Rights, Advisory Opinion, ICJ Reports1999, 62.72 L. Caplan, ‘State Immunity, Human Rights and Jus Cogens: A critique of the Normative Hierarchy Theory’, (2003) 97 AJIL, 741-791; A. Orakhelashvili, Peremptory Norms of International Law (Oxford: Oxford University Press, 2006), “320-358.” 73 B. Fassbender, ‘Targeted Sanction Imposed by the UN Security Council and Due Process Rights’ (2006) 3 IOLR, 437-485.74 R. Wessel, ‘Editorial: The UN, the EU and Jus Cogens’ (2006) 3 IOLR, 1-6.75 n 67 above .

22

group rights.76 Secondly, the very act of claiming immunity

interfaces with human rights, particularly the right of access

to court.77

In these two instances, immunity is at cross purposes with

human rights. These can be resolved by looking at these norms

in the vertical structure of international law.78 Human rights

are values which are at the top of municipal and international

protection. There is a growing trend that advocates their non-

derogable character.79 Additionally, the fact that the

customary status of immunity is to an extent, disputed

solidifies the opposite argument.80 It should be noted that the

mere assumption of customary law is not a test for jus cogens.

The contrary, however, proves the ability of States to

dissent, a notion alien to jus cogens.81 The connection between

human rights and international organisations’ action came

under scrutiny in Kadi,82 where there was an application for the

76 E. Carrasco and A. Guernsey, ‘The World Bank’s Inspection Panel: Promoting true Accountability through Arbitration’, (2008) 41 Cornell ILJ, 578.77 This is largely the case with employment disputes. See A. Reinisch, ‘The Immunity of International Organisations and the Jurisdiction of Their Administrative Tribunals’, (2008) 7 Chinese JIL, 283-306.78 n 16 above, 118.79 Orakhelashvili, n 72 above, “53”.80 n 16 above, 119.81 n 79 above.82 Kadi v Council of the European Union and Commission of the European Communities [2005] ECR II-3649.

23

abrogation of the European Council Regulation that gives

effect to Security Council Resolution 1267 (1999).83 The

Resolution empowers UN Member States to impose sanctions on

persons and entities associated with Al-Qaeda and the Taliban

government. The European Council, following the Resolution

froze the assets of the applicants. The applicants claimed

that the Resolution was in violation of their Right to fair

hearing.84 The Court of first instance rejected the applicants’

argument stating that the Regulation was ordained by the

Security Council. Therefore, the Commissions law is

subordinate to Security Council resolution in accordance with

Articles 24 and 103 of the UN Charter.85 The court treated the

right to fair trial as a disposable norm, by reasoning that

the relevant Resolution aims at preserving peace and

security.86 The Court then linked this with the possibility of

derogating the right to fair trial for emergency reasons in a

domestic legal system.87 This reasoning could place many

83 European Council Regulation, No. 881/ 2002 of May 2002.84 Ibid85 In a rather bold move, the Court stated, “the Court is empowered to check, indirectly, the lawfulness of the Resolutions of the Security Council in question with regard to jus cogens, understood as a body of higherrules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.” Ibid, 226.86 Ibid 87 Ibid., 245, 247 and 286.

24

Security Council Resolutions outside the reach of judicial

scrutiny, because the Council’s resolutions mostly relate to

issues of international security at global hotspots that

require emergency sessions.

The Grand Chamber of the European Court of Justice88 criticized

the judgement for considering the claim as a challenge to the

Resolution of the Security Council.89 The Court noted

…immunity from jurisdiction for the

contested regulation with regard to the

review of its compatibility with

fundamental rights, arising from the

alleged absolute primacy of the

resolutions of the Security Council to

which that measure is designed to give

effect, find any basis in the place that

obligations under the Charter of the

United Nations would occupy in the

hierarchy of norms within the community

88 In a carefully choreographed decision to avoid implications of reviewing Security Council’s action.89 Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-0000.

25

legal order if those obligations were to

be classified in that hierarchy.

In an important move, the Court understood that neither the

possibility of application nor the review and re-examination

procedures of the Sanction Committee guaranteed a right to

fair trial.90

This decision is at par with the Waite and Kennedy rule

developed by the European Court of Human rights, where the

Court may exercise jurisdiction in the absence of reasonable

“alternative dispute settlement”.

Though the Kadi Cases do not involve issues of immunity, they

demonstrate that immunity has procedural and substantive

relevance in cases that involve international organisations.

Domestic courts can adopt the wisdom of Kadi, they need to

sense the human rights imperatives of granting broad immunity.

Similarly, individuals should be entitled to challenge

domestic instruments that implement decisions of

organisations. This would enable courts to safeguard

fundamental rights of individuals and also shape the behaviour

of organisations from the shadows.91

90 Ibid, 322.91 n 16 above, 121.

26

Conclusion

The glaring problem in the discourse of organisational

immunity is the absence of uniform understanding of functional

immunity. International organisations are taking functional

immunity to irrational limits. This has the potential of

clashing with higher norms of international law. A

rectification of this interface is pertinent. The increasing

roles of international organisations further compel a revision

of the jurisprudence of functional immunity. International

organisations have greatly evolved, their interaction with the

external environment is on too large a scale to ignore.

It has been stated that organisations claim immunity for

efficiency reasons, to enable them meet their objectives.

Efficiency should not just be limited to the judicious

performance of organisational objectives. Compromising human

rights and being unwilling to remedy it, or defaulting from a

legal process, cannot be, by any measure, a positive

27

indication of efficiency. Using the efficiency argument to

claim immunity and not employing it both internally and

externally is not only irrational but immoral. It is time that

we face the pessimism that restrictive immunity is associated

with. Arguments that call for a restrictive immunity should

not be seen as a cynical approach to them and what they stand

for. Rather, they should be seen as a call to international

organisations to give up old habits and act as responsible and

reliable members of the international society.

Bibliography

Books

A. Muller, International Organisations and their Host States (Nijhoff

1995).

A. Orakhelashvili, Peremptory Norms of International Law (Oxford:

Oxford University

C. Amerasinghe, Principles of the Institutional Law of International

Organisations (Cambridge: Cambridge University Press, 2005).

28

H. Schermers and M. Blokker (eds), International Institutional Law

(Leiden: Martinus Nijhoff, 2003).

J. Klabbers, An Introduction to International Institutional Law (Cambridge:

Cambridge University Press, 2002).

P. Bekker, The Legal Position of Intergovernmental Organisations: A functional

Necessity Analysis of their Legal Status and Immunities (Boston:

Martinus Nijhoff, 1994).

P. Sands and P. Klein (eds), Bowetts Law of International Law (London:

Sweet and Maxwell, 2002).

Press, 2006).

Journals and Articles

C. H. Brower, ‘International Immunities: Some Dissident Views

on the Role of Municipal Courts’ (2000) 41 VJIL.

E. Gaillard and I. Pingel-Lenuzza, ‘International

Organisations and Immunity from Jurisdiction: To Restrict

or to Bypass’ (2002) 51 ICLQ.

J. Kunz, ‘Privileges and Immunities of International

Organisations’ (1947) 41 AJIL.

29

K. Tesfagabir, ‘The State of Functional Immunity of

International Organisations and their Officials and Why

It Should be Streamlined’ (2011) 10 Chinese Journal of

International Law.

M. Singer, ‘Jurisdictional Immunity of International

Organisations: Human Rights and Functional Necessity

Concerns’ (1995-95) 56 VJIL 53.

R. Wilde, ‘Accountability and International Actors in Bosnia

and Herzegovina, Kosovo and East Timor’ (2006) 7 ILSA

JICL.

A. Reinisch and U. Weber, ‘In the Shadow of Waite and Kennedy:

The Jurisdictional Immunity of International

Organisations, the Individuals Right of Access to the

Courts and Administrative Tribunals as Alternative means

of Dispute Settlement.’ (2004) 1 IOLR.

L. Caplan, ‘State Immunity, Human Rights and Jus Cogens: A

Critique of the Normative Hierarchy Theory’ (2003) 97

AJIL.

30

B. Fassbender, ‘Targeted Sanctions Imposed by the United

Nations Security Council and Due Process Rights’ (2006) 3

IOLR.

R. Wessel, ‘Editorial: The UN, the EU and Jus Cogens (2006) 3

IOLR.

E. Carrasco and A. Guernsey, ‘The World Bank’s Inspection

Panel: Promoting True Accountability through Arbitration’

41 Cornell ILJ (2008).

A. Reinisch, ‘The Immunity of International Organizations and

the Jurisdiction of Their Administrative Tribunals’ 7

Chinese Journal of International Law.

Case Law

BRSAK v the UN et al [2008] SDNY, 318.

Dupree Associates Inc. v OAS [1982] 63 ILR, 92.

Instituto Nazionale di Previdenzia Per 1 Dirigent Di AziEnde INDUSRIALI (INPDAI) v

FAO, Supreme Court of Cassation [1982] NNJYB 234.

Kadi and Al-Barakaat International Foundation v Council on the European Union

and Commission of the European Communities [2008] ECR I-0000.

31

Kadi v Council of the European Union and Commission of the European

Communities [2005] ECR II-3649.

Mothers of Srebrenica et al v State of the Netherland and the UN, The District

Court of the Hague, Judgement of 10 July 2008.

The Schooner Exchange v McFaddon, 7 us 116, 137 (1 Cranch).

US v Melekh, 190 1 Supp. 67 (SDNY 1960).

Conventions, Statutes and Reports

Agreement between INTERPOL and the Government of the French

Republic regarding INTERPOLs Headquarters in France, 3

November 1982 (as amended).

Agreement between the African Union and the Federal Republic

of Ethiopia on the Headquarters of the African Union in

Ethiopia, 25 April 2008.

Agreement on the Privileges and Immunities of the Organisation

of American States, 15 May 1949.

Charter of the Organisation of American States, 30 April 1948.

Charter of the United Nations, 24 October 1945.

32

Convention on the Privileges and Immunities of the United

Nations, 13 February 1946.

Council of Europe Report on the Privileges and Immunities of

International Organisations 1970).

European Council Regulation No.881/2001 of May 2002.

United States International Organizations Immunities Act, 29

December 1945.

33