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International Organisations and Immunity from Jurisdiction: to Restrict or to Bypass

Published online by Cambridge University Press:  17 January 2008

Emmanuel Gaillard
Affiliation:
Professor of Law, University of Paris XII, Head of the International Arbitration practice group, Shearman & Sterling.
Isabelle Pingel-Lenuzza
Affiliation:
Professor of Law, University of Paris XII.

Extract

The development of international organisations and the increasing significance of their role in a wide range of fields, has put at issue the adequacy of the rules governing their operation, with regard to the needs of modern justice. In particular, the question of the scope of the immunity from jurisdiction of international organisations is the subject of some debate, as the multiplication of disputes involving international organisations has led courts to address this topic with increasing frequency.1

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 This situation was discussed, as early as in 1965, in a Memorandum of the Government of the United Kingdom on the privileges and immunities of international organisations and persons connected with them, which led to a report on the same subject by the Council of Europe (for the text of the Memorandum of the Government of the United Kingdom and the Council of Europe's explanatory report, see Council of Europe, Privileges and Immunities of International Organisations (1970), hereinafter ‘Council of Europe Report’). As noted in the report of the various privileges and immunities granted to organisations, ‘those which are most open to criticism are immunities from jurisdiction’ (Council of Europe Report, at 71).

2 For a clear statement of this principle, see, eg, the decision by the US Supreme Court in The Schooner Exchange v McFaddon, 7 US 116, 137 (1 Cranch).

3 On this issue, see generally, Isabelle Pingel-Lenuzza, Les immunités des états en droit international 17 et seq (1998).

4 See, eg, 22 June 1995, Swiss Fed Trib, evue suisse de droit international et de drolt européen [Rev Suisse dr int et dr eur] 657; see also the 21 Nov 1990 decision of the Supreme Court of Austria, summarised in 120 Journal du Droit International [JDI] 388 (1993).

5 See, eg, the decision by the Supreme Court of The Netherlands, 20 Dec 1985, AS v Iran-United States Claims Tribunal, 94 ILR 321.

6 On this point, see Jean Duffar, Contribution à L'étude des privilè ges et immunités des organisations internationales 68 et seq (1982).

7 See CA Paris, 13 Jan 1993, CEDAO v. BCCI, 120 JDI 353 (1993), and note by Ahmed Mahiou.

8 Christian Dominicé, tudes de droit international en l'honneur de Pierre Lalive 483, 487 (Christian Dominicé et al eds, 1993) (our translation). By the same author, see L'immunite de juridiction et d'exécution des organisations internationales, Collected Courses of The Hague Academy of International Law, vol 187, Year 1984, Part IV, at 145. For a similar approach, see Ignaz Seidl-Hohenveldern, L'immunité de juridiction et d'exécution des Etats et des organisations internationales, 1 Droit International 109, 161–2 (1981); Panayotis Glavinis, Les litiges relatifs aux contrats passés entre organisations internationales et personnes privées 122 (1990).

9 See, eg, IBRD Charter Art. VII, para 3, the European Investment Bank Charter, Art 29, or Art 4(1) of the Protocol on the privileges and immunities of the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) of 1 Dec 1986, United Nations, Treaty Series, vol 1522, at 161. For an overview of exceptions to immunity, see Duffar, above n 6, at 63 et seq; see also the International Law Commission's Fourth Report on relations between States and international organisations, UN Doc A/CN.4/424 (24 Apr 1989), Yearbook of the International Law Commission, 1989, Vol II (Part One), 153, at 160 et seq.

10 On this issue, see Philippe Kahn's commentary following CA Paris, 18 June 1968, Dame Klarsfeld v Office franco-allemand pour lajeunesse, 96 JDI 671, 673 (1969).

11 For further detail, see below Part II (B).

12 Following this approach, see Swiss Fed Trib, 30 Oct 1996, partially reproduced in 1997 Rev suisse dr int et dr eur 668. See also Jean-Flavien Lalive, ollected Courses of The Hague Academy of International Law, vol 84, Year 1953, Part III, at 303; Glavinis, above n 8, at 125.

13 See, eg, in France, Cass le civ, 6 July 1954, evue Critique de Droit International Privé [RCDIP] 337 (1996), and note by Horatia Muir-Watt. In the second case, the Cour de Cassation granted immunity to the Western European Union, refusing to hear the claim for payment of indemnities brought by its former Secretary-General. It justified this position by referring to the need to refrain from ‘gravely perturbing the law of international relations by reducing to nearly nothing the jurisdictional privileges and immunities of the international organisations of which France is a member’ (Rapport de la Cour de cassation 418–19 (1995) (our translation)). In the United States, see Mendaro v World Bank, 717 F.2d 610 (DC Cir 1983).

14 For this type of presentation, see, eg, Glavinis, above n 8, at 120 et seq. See also Philippe Cahier, a charte des Nations Unies—Commentaire article par article 1397, 1401–2 (Jean-Pierre Cot, Alain Pellet (eds), 1991).

15 Dominicé, above n 8, at 487 (our translation). Similarly, see Richard J. Oparil, and J Transnat'l L 689, 710 (1991).

16 See Swiss Fed Trib, 21 Dec 1992, Groupement Fougerolle & Consorts v CERN, 2 Bulletin de l'Association Suisse d'Arbitrage [Bull ASA] 259 (1993); 1994 Revue de l'arbitrage [Rev arb] 175, and note by Panayotis Glavinis. See also Geneva Surveillance Authority for Debt Recovery and Bankruptcy Matters, 9 Apr 1997, 1999 Rev Suisse dr int et dr eur 656.

17 European Court of Human Rights, e Droit Des organisations Internationales—Recueil d'études à la mémoire de Jacques Schwob 157, 162 et seq (1997).

18 On the basis of the case law of the Federal Labour Court, holding that the immunity granted to the ESA was not contrary to the fundamental principles of German constitutional law, see the roit international et europeen des droits de l'homme 381, 385–6 (1999).

19 The case was brought before the Commission after an amicable settlement had been reached between the employees and the companies that had hired them. The question was raised by commentators, but not examined by the Court, whether the settlement had put an end to their status as victims (see the commentary by Paul Tavernier, 127 JDI 102, 103 (2000)).

20 Unpublished, but accessible on the Council of Europe's Website, <http://www.echr. coe.int>.

21 On the grounds that its task was not to substitute itself for the domestic jurisdictions (Decision, above n 18, at para 44), the Court did not examine in this case the claimants' argument that the German courts should have applied Art 6 s 2 of the ESOC Agreement, providing for the lifting of its immunity for certain disputes concerning the staff of the Organization. Had the Court done so, it would have had to decide on issues concerning the succession of organisations, as the ESOC Agreement was concluded with the European Space Research Organisation (CERC), which preceded the ESA. The prudence of the Court on this point is regretable, as it ‘creates flaws in the analysis, neglects an essential factor of the case, and runs the risk of resulting in a denial of justice’ (see commentary by Tavernier, above n 20, at 103 (our translation)).

22 Decision, above n 18, para 48 and European Court of Human Rights, Golder v United Kingdom, Judgment of 21 Feb 1975, Series A No 18, paras 34–5 (1975).

23 Decision, above n 18, at para 49.

24 Decision, above n 18, at para 53. For a commentary on the Court's grounds for taking this position, see Isabelle Pingel-Lenuzza, evue Générale de Droit International Public [RGDIP] 446, 457–8.

25 Decision, above n 18, at para 59.

26 On the condition of independence of the court before which the case is brought under Art 6, para 1 of the Convention, see for example Sudre, above n 19, at 234 et seq.

27 The reservation, stated in the Decision, pursuant to which ‘[i]t would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution’ (Decision, above n 18, at para 57), does not affect this analysis, although it could in certain cases allow the private party's interests to prevail over those of the organisation.

28 In other words, ‘it should be borne in mind that … [privileges and immunities constitute a right not a courtesy’ (Fourth Report on relations between States and international organisations, above n 9, at 161). It is also accepted, as the General Assembly of the United Nations has stated, that ‘no privileges and immunities which are not really necessary should be asked for’, GA Resolution of 13 Feb 1946, A/Res/22A (I), s D.

29 See UN Charter Art 105; see also General Convention on the Privileges and Immunities of the United Nations, 13 Feb 1946, United Nations, nnuaire Françs de Droit International [AFDI] 262 (1957).

30 On the ‘tendency to standardize’ the regime of immunity of organisations since the Second World War, see André Lewin, uris-Classeur Droit international, Fasc 112–13, para 31 (1989).

31 Council of Europe Report, above n 1, at 15. As a result, for example, the United Nations, which has political functions and liable to come under pressure, would have extended immunity, whereas ‘in the case of a small organisation with purely administrative functions … there might be no good reason for excluding the jurisdiction of the local courts’ (Council of Europe Report, above n 1, at 27). The Fourth Report on relations between States and international organisations also takes this view (above n 9, at 160 et seq).

32 Eight reports were submitted between 1977 and 1991 on the Relations between States and international organisations, before the International Law Commission concluded that it would be ‘wise to put aside for the moment the consideration of a topic which does not seem to respond to a pressing need of States or of international organisations’ (Yearbook of the International Law Commission, 1992, Vol II (Part One), at 53).

33 Cf, on this point, the position of Horatia Muir-Watt, note following the French Cour de Cassation's, Decision of 14 Nov 1995, above n 13, at 340.

34 Mendaro, above n 13, in which the Court of Appeals for the District of Columbia Circuit emphasized that ‘one of the most important protections granted to international organisations is immunity from suits by employees of the organisation in actions arising out of the employment relationship’, Mendaro, 717 F.2d at 615.

35 See, eg, Corte di Cassazione, 8 Apr 1975, Di Banella Schirone, 77ILR 572. For an overview of the position of the Italian Courts, see Antonio Cassese, L'immunité de juridiction civile des organisations Internationales dans la jurisprudence italienne, 30 AFDI 556 (1984).

36 See AS v Iran-United States Claims Tribunal, above n 5, at 321.

37 See CA Paris, 27 Jan 1999, Béatrice Refievna v Union Latine, unpublished. According to this decision, ‘given the nature of her functions as a publications assistant, Béatrice Refievna only gathered, sorted, formatted and set up information and databases concerning the Union Latine, involving no particular responsibility in the exercise of a public service, such that the acts of the latter, in particular her dismissal, were of a managerial nature not covered by immunity from jurisdiction’ (our translation). Compare the earlier, but more classic position of the French Cour de Cassation in Hintermann, above n 13.

38 According to the applicable texts, the Court of Justice of the European Communities has jurisdiction over disputes concerning officials and other servants (temporary staff, auxiliary staff, and special advisers). The courts of the member States have jurisdiction over disputes concerning local staff (under contract for specific tasks or services). On this question generally, see, eg, Guy Isaac, Droit communautaire général 91–2 (1998).

39 For the application of this distinction in disputes between staff members and international organisations, see for example Italian ev suisse dr int et dr eur 596.

40 See, eg, Cahier, above n 14, at 1041–2, criticising an Italian decision for refusing to grant immunity to the FAO on the basis that an international organisation should not have immunity superior to that of States.

41 See Fourth Report on relations between States and international organisations, above n 9, at 157–8.

42 See Ahmed Mahiou, note following TGI Paris, 4 Dec 1991, CEDAO v BCCI, 119 JDI 693, 704 (1992).

43 Cited in Fourth Report on relations between States and international organisations, above n 9, at 161. The Report of the Council of Europe suggests the same conclusion, defining a series of possible exceptions to the regime of immunity from jurisdiction of international organisations that is similar to that applicable to States (Council of Europe Report, above n 1, at 24).

44 See, eg, David Ruzié, note following evue Française de Droit Administrate 956, 960. See also Blaise Knapp, Les privilèges et immunités des organisations intemationales et de leurs agents devant les tribunaux international, 1965 RGDIP 615, 622.

45 In France, see, eg, Cass Soc, 24 May 1978, ull Civ V, No 392.

46 Not all organisations have established these. This is why, in its resolution on contracts concluded between international organisations and private persons adopted in Oslo in 1977, the International Law Institute stated that such contracts should provide for the resolution of any resulting disputes by an independent entity. Three means are suggested: institutional or ad hoc arbitration; recourse to a tribunal established by an international organisation; or recourse to a national court (Arts 7 and 8).

47 On this question generally, see Alain Pellet, Les voies de recours ouvertes aux fonctionnaires internationaux (1982); Société Française pour le Droit International, Le contentieux de la fonction publique internationale (1996).

48 For a rare example of recourse to arbitration for the resolution of disputes concerning the staff of an organisation, see David Ruzié, Le recours à l'arbitrage dans le contentieux de la fonctionpublique Internationale: L'exemple dupersonnel local de l'U.N.R.W.A., 113 JDI109 (1986).

49 For a detailed analysis of the functioning of these tribunals, see, eg, Nassib Ziadé, he World Bank Administrative Tribunal 1980–2000 (20th Anniversary Conference, 16 May 2000), to be published in the Proceedings of the 20th Anniversary of the Administrative Tribunal 1980–2000; Chittharanjan Felix Amerasinghe, International Administrative Tribunals in the United Nations System, in Manuel sur les organisations Internationales 206 et seq (R-J Dupuy (ed), 1998).

50 See above, Part I (A).

51 Commentators have sometimes criticized this method of appointment, which is the prerogative of intergovernmental organs and often leads to the appointment of senior civil servants. ‘Without casting doubt on their independence with regard to the organisations …, it is questionable whether these senior civil servants are not liable to be more preoccupied by the desire to protect the funds of the organisations than to impose severe financial sanctions for manifest irregularities. The intervention, for the selection of judges, of an independent external authority (such as the International Court of Justice or the European Court of Human Rights) … would doubtless offer better guarantees of independence’ (David Ruzié, e contentieux de la fonction publique internationale, above n 48, at 18–19 (our translation)).

52 On this question, see, in particular, Hubert Thierry, e contentieux de la fonction publique internationale, above n 48, at 121 et seq; Ruzié, above n 52, at 46 et seq.

53 TGI Paris, 20 Oct 1997, Boulois v UNESCO, 1997 Rev arb 575, and note by Charles Jarrosson.

54 CA Paris, 19 June 1998, UNESCO v Boulois, 1999 Rev arb 343 (our translation), and note by Charles Jarrosson.

55 It should also be noted that, regretably, the case law of the European Court of Human Rights is far more conservative than this holding of the Paris Court of Appeals. On this case law, see above, Part I (A). See also Fouchard Gaillard Goldman On International Commercial Arbitration 645 (E Gaillard and J Savage (eds), 1999).

56 Swiss Fed Trib, 21 Dec 1992, Groupement Fougerolle & Consorts v CERN, above n 16 (our translation).

57 See, eg, Cass le civ, 18 Nov 1986, Yougoslavie v SEEE, 114 JDI 120 (1987), and note by Bruno Oppetit; 76 RCDIP 786 (1987), and note by Pierre Mayer. On this question, see also the commentary by Berthold Goldman following CA Paris, 12 July 1984, République Arabe d'Egypte v SPP, 112 JDI 129, 145 (1985), noting that by accepting to submit to arbitration, the State must have accepted in good faith to submit to all ancillary national procedures. Compare the commentary by Philippe Kahn following TGI Paris, 8 July 1970, SEEE v Yougoslavie, 98 JDI 131, 136 (1971).

58 In favour of this approach, see Wilfred Jenks, International Immunities 40–1 (1961)

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