Immunity of International Organisations

Introduction

International organisations have been continually involved in domestic lawsuits where domestic justice systems do not have the necessary legal frameworks to hear such cases[1]. This results in domestic courts using different ways to hear these cases. Also, it resulted in the institution of immunities and privileges extended to international organisations to protect their independence by safeguarding these organisations from litigation before domestic courts especially in regards to its host nation[2]. It is also worth noting that a similar provision is extended to persons who work in these organisations in any official capacity where they are extended a special international status. For instance, instead of being tried before national courts, complaints against members of staff should be addressed to an internal grievance mechanism and then before a tribunal set apart by the organisation they are part of[3].

However, the immunity and privileges of international organisations are questioned on whether immunity should be done away with to avoid the denial of justice. The main concern is the conflict between jurisdictional immunity extended to international organisations and the rights of claimants to have access to courts[4]. This is conferred under Article 6 of the European Convention on Human Rights[5]. Also, it is worth noting that, in relation to the host nation, the immunities accorded to an organisation and the members of staff are informed by an accord struck between the organisation and the host nation[6]. In this regard, it is vital to determine the guideline host nations will rely on to come up with these agreements. This is because immunity from legal processes can negatively impact the national justice system where international organisations and their members of staff can abuse this provision[7].

The paper aims to answer a question whether there is a need to limit the immunity extended to international organisations and their members of staff to guarantee accountability where host countries and individuals can seek legal redress for cases where the functionality of the organisation is not a variable that warrants consideration. The discussion will first employ a method of conceptual analysis of the existing legal framework and then proceed with evaluative research testing the applicability of rules in practice. The method of case studies will examine the plausibility of concerned legal concepts.

The background will detail how immunities and privileges came to be in regards to national and international law. Understanding immunity will focus on outlining the different types of immunities extended to international organisations and their members of staff based on the status of the organisation and the extent of the accorded immunity. The functional concept of immunity will then cover how an organisation’s functionality has developed over the years to come up with a way to limit the immunity of IOs. The case law section will then outline legal cases where organisations and their members of staff have misused and/or abused their immunity. From this, the arguments against immunity section will draw from the case law section to point out the violations against international humanitarian law orchestrated by organisations and their members of staff where immunity has been presented as a defence from legal redress to outline the extent to which the holders of immunity have misused it. Finally, the recommendations and conclusion section will outline how functional immunity can be implemented as a way to limit immunity.

Background

International organisations are established by the collective will of the nations which outline provisions for immunity that these organisations should be accorded[8]. However, immunity is conferred by getting into an agreement with the host state where host nations will usually have an act that sets out the provisions for immunity. As such, through these agreements, the status of an organisation is established and the extent of the immunity extended to it[9]. Notably, the United States has the International Organisations Immunities Act of 1945 which is likened to the Foreign Sovereign Immunities Act of 1976[10]. Under the act, international organisations are treated as foreign sovereign and as such, they are accorded the same immunity that foreign governments have in the United States.

Immunity is a product of international law since international organisations are granted a legal personality that is different from their resident state which makes it possible for it to carry out its practical needs these include, having property, employees and funds[11]. Granted that they are conferred this status by international law, they are subject to international law whereby, while international law provides them with immunity from litigation before domestic courts, it also provides limits to this immunity to ensure there is no impunity for violations of international law[12]. This makes immunity a vital issue in public international law.

 

Understanding Immunity

Immunity is needed to uphold the autonomy of international organisations and safeguard them from bothersome litigations[13]. The special attention is attributed to their relations with their host nation[14]. However, immunity from the legal process is perceived as being objectionable over concerns tied to international law, whereby; on several occasions, it has left private disputes unresolved[15]. This has resulted in the perception of a lack of accountability aimed at criticising the conferment of intrusive powers to international organisations.

There is a need to focus on the points of overlap between immunity as a means to preserve the independent functioning of IOs to it being a source of organisational impunity for violations of human rights. This can be achieved by striving to understand immunity under customary international law to identify how these two perspectives can be mediated[16]. That is, how immunity can be extended to ensure the independent working of these organisations without extending gross violations of human rights on the grounds of immunity.

This is because there has been key abuse of international organisations’ immunities at the margins which has given rise to complex tort cases that have been difficult to resolve partly because of the misunderstanding relating to the areas that the immunities should be applied to. On the other hand, the legal frameworks seem split on the issue of immunity whereby, local courts are willing to limit the immunities whereas higher courts after appeal will usually uphold the immunity of these organisations[17]. Therefore, determining how these organisations and their immunity relate to international law will provide a clear confine where both the organisations, the international public, and judicial systems can balance between operating within the conferred immunity and addressing the violations that determine the right of access to courts[18].

While organisations are granted immunity, their members of staff are granted a special status. There are two forms of immunity extended to members of staff-personnel and occupational[19]. Occupational immunity encompasses the activities executed by a public official when carrying out their functions and the state sovereignty ensures it. Personal immunity is conferred by customary international law which typically starts when an individual assumes their office, and it is taken away when terminated from their official capacity[20]. Therefore, international law is aimed at ensuring the proper implementation of political and consular duties.

In regard to international organisations, international law extends to them immunity from prosecution and occupational safety. This is provided under judicial immunity whereby international organisations and their members of staff should not be punished when working in an official capacity[21]. This is aimed at helping them carry out their duties whereby, some because of the nature of their job may be predisposed to legal litigation, which may negatively affect their capacity to carry out their duties[22]. In terms of both the organisations and its members of staff, it is evident that immunity has to be upheld as long they are operating within the mandate of the duties they are expected to perform. Therefore, immunity is only extended to international organisations and their personnel to ensure they can perform their tasks confidently[23]. However, immunity holders are obliged to respect the laws and rules of the host country, and they should not meddle in the nation’s internal affairs. If an organisation and its members of staff engage in activities that are contrary to their duties or interfere with the affairs of their host country, this amounts to misuse on conferred immunity[24]. While it is relatively easy to deal with individuals who have misused their immunity where a state can deport such an individual, dealing with international organisations is challenging.

Functional Concept of Immunity

Immunity is mostly restricted to the performance of official duties whereby, any action contrary to this is a breach of the affordances of immunity. At this point, it is worth noting that the United Nations is the most renown international organisation should be an embodiment of this principle. As such, article 104 in the Charter of the United Nations which outlines that, “the Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes,” which grants it its legal person status[25]. From this article, it is evident that it is granted a legal personality to make sure it can carry out its practical needs such as owning property and having employees whereby, without this status, it would be impossible to carry out its mandate.

Its functional capacity is impacted by immunity as discussed above. The Charter in Article 105 paragraph restricts immunity to its functions which states that “the organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes”[26]. This article binds together the concept of functional personality with functional immunity. In the second paragraph in the same article, immunity is extended to the members of staff where it states that “representatives of the Members of the United Nations and officials of the Organisation shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organisation”[27].

By using the United Nations, we can get to delve deeper into the conception of functional immunity. It is worth noting that this concept is not only captured in the Charter of the United Nations, but the Charter largely borrows from the convention that led to its establishment that is, the Convention on the Privileges and Immunities of the United Nations which is mainly known as the General Convention[28]. Specifically, this convention clearly outlines the precepts of functional personality by clearly outlining the immunities and privileges that international organisations’ officials and envoys enjoy. Convention’s articles are precise in regards to the privileges and immunity, which are usually considered to be directly applicable and self-executing for the legal systems. As such, domestic courts can rely on these provisions without needed new legislation.

Article 1 in the first section defines jurisdictional personality which is an equivalent to functional personality as the capability to contract, acquire and do away with immovable and movable property and to institute legal proceedings. Article 2 in Section 2 accords the United Nations absolute immunity unless the United Nations explicitly waives its immunity[29]. However, functional immunity has emerged as a way for states to restrict international organisations by denying them immunity for commercial activities. However, while the Convention accords the United Nations absolute immunity, it requires it to make provisions that outline how the settlement of disputes will be carried out if they were to arise out of its dealings or in relation to private law such as the internal tribunal outlined above.

Even in the case where an international organisation has absolute immunity, it has to provide for an internal dispute resolution mechanism because of the conferred immunity from the legal process which is termed as a right of access to a court[30]. Given that most organisations have an international agenda they oversee, functional immunity is a concept that is used to ensure that these organisations do not misuse their immunity to carry out commercial activities.

In this regard, it is important to note that claims against international organisations by private organisations and stakeholders have always existed[31]. Especially for organisations focused on peacekeeping initiatives in foreign states where the amount of involvement of international organisations has increased which has increased the impact of international organisations on individuals[32]. This results in an increased risk for conflicts when carrying their mandate and in an increased concern for the immunity extended to international organisations. While there is a need to preserve institutional autonomy, there is a concern on whether immunities are still appropriate, given these developments[33]. However, the importance of immunities cannot be understated in that activities of international organisations inevitably result in dispute scenarios that cannot be tried before a national court. As such, the focus should be on how to assess the alleged violations of immunity carried out by these organisations[34].

However, before this can be attained it is important to note that systematising law and practice focused on limiting the immunity of IOs is problematic in that, there is a limited and divergent case law relating the tribunals as well as domestic and international courts[35]. As such, establishing a criterion for functional immunity can serve to establish an approach to mitigate against the violations of immunities and resolving the resultant tort cases, which can serve to constraint these international organisations hence outlining common principles and practices that establish the immunities.

Case Law

The Supremacy of International Organisations Immunity: Mothers of Srebrenica v The Netherlands and the UN

In July 1995, Bosnian Serb forces attacked a safe haven of Srebrenica in Bosnia and Herzegovina which resulted in the deaths of approximately 8000 and 10000 individuals. General Mladic’s forces overran the members of the Dutch Battalion[36]. In 2007, ten women whose family members were casualties in the genocide joined forces with the Mothers of Srebrenica to demand recompense from the UN and the Kingdom of Netherland outlining that both were culpable for the failure to avert the genocide.

Upon hearing the case, the District Court of The Hague on 10th July 2008 outlined that the UN enjoyed absolute immunity and as a result, the court lacked jurisdiction to try the case. Later on, the court of appeal upheld the decision on 30th March 2010[37]. Upon appeal to the Supreme Court, it evaluated if the immunity of the UN should prevail considering the gravity of the alleged charges by considering it against state immunity. The court found that the UN was entitled to immunity irrespective of the gravity of the allegations.

By expounding on the “reasonable alternative means” requirement set out in Waite and Kennedy case[38], the court outlined that this argument could not prevail in the case where it rejected the reliance on Art. 6 of the EHCR. This because it had not been ascertained that the claimants did not have access to a court of law in regards to the situation that took place in Srebrenica[39]. The court held that they ought to have sued the specific perpetrators of the genocide or the Dutch state.

The UN Absolute Immunity: Georges v United Nations

This case was a punitive class action focused on holding UN officials responsible for the injuries arising from the cholera epidemic in Haiti. Scientific studies showed that Nepalese soldiers introduced cholera in Haiti[40]. The soldiers had come from Nepal which was characterised by a cholera outbreak at the time and was stationed in a remote rural based which was found to have been leaking human waste into the neighbouring Meille River which flowed to Haiti’s main waterway.

The UN did not screen the soldiers for cholera, while it also took years to enhance its sanitisation practices significantly. Also, the organisation declined to carefully examine whether the base was the source of the outbreak[41]. However, the case was ruled in favour of the UN, whereby, although it failed to provide the plaintiffs with an alternative means to seek legal redress as obligated by international convention, the UN was not stripped off its legal immunity[42]. This is because, under the Convention on Privileges and Immunities of the United Nations, the United Nations cannot be sued in American courts, which confers the UN absolute immunity.

 

 

 

 

Reasonable Alternative Means: Waite and Kennedy v Germany

This case was established under the previous article 19 of the Convention outlined by the ECHR. It was filed against the Federal Republic of Germany by Richard Waite and Terry Kennedy, both British nations[43]. The two were systems programmers in a British company, SPM, and they had been assigned to the European Space Agency (ESA) to offer services at its Darmstadt European Space Operations Centre. Upon the expiration of their contract, their engagement with ESA was terminated. However, the two instituted legal proceedings against ESA where they argued that they had acquired the status of employees as enshrined in the Germany Provision of Labour Act[44]. In the proceeding, ESA invoked its immunity from jurisdiction under Article XV of the ESA convention as well as its Annex I. In line with this; the Darmstadt Labour Court outlined that the applicant’s actions were unacceptable since ESA had genuinely invoked its immunity from jurisdiction. This decision was upheld upon appeal to other domestic courts.

The European Court of Human Rights (ECHR) posited that a key aspect on whether to grant immunity is grounded upon an international organisation having reasonable alternative means that effectively safeguarded their rights[45]. In this regard, the applicants should have brought their case first before ESA’s internal appeals board which is granted authority to address staff disputes. Also, whether they qualify or not as staff members to ESA was contingent on the ruling made by the tribunal[46]. The court also provided that individuals can only seek legal recompense in a national court only after genuinely exhausting the remedies set out by the organisation in question.

The ESA Convention

The article mentioned above XV under the conventions paragraph 1 outlines that the agency is conferred a legal personality and in paragraph 2 it outlines that the staff members and experts and its national representatives shall be extended to the legal capacity, privileges, and immunities set out in Annex I[47]. Under Annex I, the agency is conferred a legal personality, as well as making it party to a legal proceeding. Also, Annex I under art. IV § 1 (a) holds that the agency will be extended to immunity from jurisdiction and execution except for a situation where the Council explicitly waives immunity[48].

Art. XXVII of Annex I goes on to outline that the agency is obliged to institute an alternative for a reasonable settlement of disputes that may emerge between itself and the Director General, staff members or experts based on the conditions of their service. The agency also has staff regulations that establish an independent appeal board whose mandate is to hear cases associated with the overt or implied decisions made by the agency that arise from it and staff member or former personnel[49]. In this regard, the board has the power to overturn a decision that has been appealed if it was against the staff regulations, rules, instructions or the appellant’s contract of appointment or bestowed right.

As outlined by the court, it is evident that the case by the claimants was against the immunity provisions set out in ESA’s convention as they had not exhausted the internal provisions provided by the organisation to hear such disputes. This case was particularly important in the evaluation of immunity of international organisations because it addressed the immunity of international organisations. It determines if the immunity of international organisations violated an applicant’s right of access to court as outlined in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Also determines whether there were reasonable alternative means for the safeguarding of individual as provided by the ECHR and finally, the purpose of the existence of such an alternative in underscoring the immunity of an organisation under the ECHR[50].

The Exception of Commercial Activities: Jam v International Finance Corporation

The International Finance Corporation (IFC) is a branch of the World Bank Group whose mandate is to finance private-sector developments in third world countries. One such project was the Tata Mundra power plant in Gujarat, India. In a conditionality of the $450 million loans extended, the IFC obliged the overseeing company to abide by the environmental action plan to safeguard the surrounding areas, and it sustained the ability to rescind its financial backing if the company did not respect the directive[51]. However, in 2015, the IFC was sued by farmers and fishers living near the power plant for damages and injunctive relief. They alleged that the IFC did not abide by its internal policies and did not implement the environmental action plan which led to the contamination of drinkable water, displacement of local farmers and fishers and the degradation of air quality[52]. In response, the IFC outlined that the IOIA conferred its absolute immunity. Therefore, the district court had to navigate the issue through statutory interpretations as the IOIA outlines that international organisations enjoy similar immunity with foreign governments[53]. However, this provision does not encompass whether it was when the IOIA was first ratified or after the introduction of the FSIA.

 

The court outlined that the expression “immunity enjoyed by foreign governments” did not have a substantive meaning and as such, it is an instruction to evaluate the applicable rules from common law, a statute, or law of nations. Given that immunity is set out in an agreement with the host nation, it was outlined that while international organisations used to enjoy absolute immunity, they now have limited immunity in the United States as that is the immunity that is accorded to foreign governments. This was a development after the ratification of the FSIA which imposes a commercial activity exception[54]. Therefore, given that the IFC was a party to commercial activity by lending loans to finance private projects, its immunity did not encompass litigation arising from such practices. From this ruling, it was evidenced that international organisations can be held accountable for their commercial activities as the limited liability provision provided that they can be sued in US courts.

The Exception of Gross Violations of Human Rights: Prosecutor v Stanislav Galic

This case was heard by the International Criminal Tribunal to try General Stanislav Galic. The general was alleged of having run sniping and shelling attacks with the intension of spreading terror among the civilian population of Sarajevo[55]. According to the prosecutor, Galic’s actions were contrary to international humanitarian law. In this regard, the principle of distinction under the law obliges military commander to differentiate between military objectives and not to attack civilians under any circumstance[56]. In line with this, the general was accused of ordering a series of attacks on civilians or failing to stop or penalise the actions of his subordinates. As a result, the general was charged with war crimes, crimes against humanity and the crime of terror. The trial chamber based the case on a large amount of evidence, testimonials, and documentaries presented to it which demonstrated beyond any reasonable doubt that SRK forces deliberately attacked Sarajevo civilians[57]. Mostly, the attacks were orchestrated during the day, and they were not a response to any military threat which challenged the defence that the deaths and injuries were collateral to legitimate military activity. Incidentally, General Galic was found to incur individual criminal responsibility under the Statute’s Articles 7(1) and 7(3) for his actions and omissions, which led to gross abuse of human rights and was sentenced to a single 20 years imprisonment sentence[58].

Arguments against Immunity

From the cases above, it is evident that immunity is a key aspect of ensuring that the organisations and their personnel can conduct their activities without having to worry about vexatious litigations being presented against them. However, immunity brings about a lack of accountability where international organisations cannot be questioned for some gross violations of human rights. A key example is the outbreak of Cholera in Haiti and the 1995 genocide in the safe haven of Srebrenica in Bosnia and Herzegovina. This results in impunity on the part of the international organisations and misuse of this immunity on the part of members of staff as evidenced by the case of General Stanislav Galic who orchestrated target attacks on civilians under the pretext of the injuries and deaths being collateral for legitimate military activity.

Over the years, legislation has been enhanced to deal with these concerns mainly due to the increased interaction of international organisations and the public. First, the convention outlines that international organisations should provide alternative means that the public can use to seek redress as evidenced in Waite and Kennedy v Germany case[59]. Also, the activities of the members of staff are subject to review under international humanitarian and the most recent is the aspect of limited immunity where exceptions are outlined under the FSIA for commercial activities which have a higher probability of resulting in legal concerns[60]. Since most of the violations are committed under the watch of the UN, there is a need for the organisation’s absolute immunity to be capped to enhance accountability for such cases where there is evidence to gross misconduct and negligence.

Conclusion

From the above discussion, it is evident that there is a need to limit the immunity of international organisations and their personnel. For instance, Mothers of Srebrenica V. The Netherlands and the UN, the UN is culpable to some degree for the genocide that occurred in a safe haven of Srebrenica in Bosnia and Herzegovina. This is because the UN was there on a peacekeeping initiative, which they failed to do. Hence, there is a need to demand accountability to ascertain what went wrong, but this was not possible because the UN is accorded absolute immunity. Also, in the Georges v. United Nations case, there is evidence showing that the UN was responsible for the outbreak of cholera because they introduced it to Haiti and also, the organization did not take the necessary steps to prevent or control it. However, despite this evidence, the UN was pardoned on account of its absolute immunity. In regards to the members of staff in the case Prosecutor v. Stanislav Galic, General Stanislav Galic had been charged with running sniping and shelling attacks on the civilians of Sarajevo. Had there not been exceptions to the immunity of staff members and international humanitarian law, the General may have been pardoned. The same is evidence under the case Jam v. International Finance Corporation where commercial activities are excluded from the immunity pardon. This exception is what made it possible for the IFC to be held accountable.

 

Recommendations

  1. The reasonable alternative means requirement should be enhanced with limited immunity to not only guide the activities of these organizations but to also ensure they are accountable.
  2. Since immunity is enhanced to enhance the normal working of an organization and its members of staff, it should be limited to its functional personality.
  3. Claimants should be granted their right of access to domestic courts to seek legal redress for violations of human rights.
  4. Limiting immunity is a preferred approach how immunity can ensure the independent working of these organisations without creating a grey area that can allow for a gross violation of human rights.

 

Bibliography

Cases

Georges and ors v United Nations and ors and United States (2015) ILDC 2336

Jam v International Finance Corp (2019) 860 F. 3d 703

Mothers of Srebrenica v the State of the Netherlands and the UN [2012] 1760

Prosecutor v Galić (2006) ICL 510

Waite and Kennedy v Germany (2000) 30 EHRR 261

Statutory Instruments

UN General Assembly, Convention on the Privileges and Immunities of the United Nations (UNGA 1946)

Books

Blokker N (ed), Legal Aspects of International Organizations (Brill Nijhoff 2015)

Okeke E, Jurisdictional Immunities of States and International Organizations (OUP 2018)

Reinisch A, The Privileges and Immunities of International Organisations in Domestic Courts (Oxford Scholarship Online 2013)

White ND, The Law of International Organisations (Manchester University Press 2017)

Journal Articles

Brabandere E, ‘Immunity of International Organizations in Post-Conflict International Administrations’ (2010) 7 International Organizations Law Review

¾ ¾ ‘Measures of Constraint and The Immunity of International Organisations’ [2018] Cambridge Handbook on Immunities and International Law

Henquet T, ‘International Organisations in the Netherlands: Immunity from the Jurisdiction of the Dutch Courts’ (2010) 57 Netherland International Law Revie

Mihandoost F, ‘Immunity of International Organizations from The Perspective of International Law’ (2016) 9 Journal of Politics and Law

Reinisch A, ‘The Immunity of International Organizations and The Jurisdiction of Their Administrative Tribunals’ (2008) 7 Chinese Journal of International Law

Websites

Behles C, ‘U.S. Supreme Court Rules International Organizations Do Not Have Broader Immunity Than Foreign Governments’ (Asil.org, 2019)

Boon K, ‘Privileges and Immunities of International Organizations’ (Opinio Juris 2013)

‘Immunity of International Organisations’ (Federal Department of Foreign Affairs 2017)

Möldner M, ‘International Organisations or Institutions, Privileges, and Immunities’ (Oxford Public International Law 2011)

‘Supreme Court Rules That World Bank Group Can Be Sued In US Courts In Historic Decision | Center For International Environmental Law’ (Center for International Environmental Law 2019)

Working Papers

Alebeek R and A Nollkaemper, ‘Privileges and Immunities of International Organizations in the Case Law of Dutch Courts’ (2012) ACIL Research Paper No 2012-11,

Reinisch A, ‘Conventions on The Privileges and Immunities of the United Nations’ [2009] United Nations Audiovisual Library of International Law

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