Abstract: The aim of the article is to take a closer look at controversial area of international law that is not expected to be clarified and determined in the near future. The privileges and immunities of international organizations have been and are the subject of much debate in both science and judicial practice. As in other areas of "life" of international organizations, there are significantly different views of authors and national and international courts on privileges and immunities of international organizations due to the fact that the law of international organizations is still imperfect and lacks certainty as well as complex international codification of privileges and immunities of international organizations and their functionaries.
Key words: functional necessity, international privileges and immunities, right of access to court
Introduction
International organizations perhaps belong to the most significant social innovations of the 20th century. Over the last 70 years, they have managed to become global conglomerates by creating their share in every aspect of human life. In pursuing their objectives, from maintaining international peace and security, developing economic, trade, cultural and humanitarian cooperation to promoting human rights, they appropriately complement and coordinate the action of States in these areas and facilitate their cooperation. For international organizations to be able to carry out their functions smoothly and effectively and to achieve the objectives set, it is essential that they enjoy certain privileges and immunities, which provide them with autonomy, independence, and protection against interference or control of any kind by their Member States. After all, it is the Member States which, because of unilateral and irresponsible intervention, could disrupt the proper functioning of international organizations, thus calling into question the very nature of their establishment. At least, that is what was initially presumed after the Second World War.
Historical development of privileges and immunities of international organizations
The privileges and immunities accorded to international organizations and their officials, in principle under treaty law, are a relatively recent and evolving phenomenon which has developed with establishment of international organizations. First, it should be noted that the conventions and treaties establishing various international public associations and international commissions did not lay down detailed provisions on privileges and immunities during the 19th century. On the contrary, those were derived from the existing practice in the international community. Therefore, the following examples are exceptions granted by specific treaties or conventions rather than a rule (Michaels, 1971, p. 249). The privileges of "independence and neutrality" were granted for the first time to the Central Commission for Navigation on the Rhine, which was established in 1815 by the Final Act of the Congress of Vienna as the first international organization in the world. Another equally important example is the granting of diplomatic immunities to non-diplomatic international officials of a special body for the Atlantic Federal Navy, the Comisión Directiva, which was created in 1826 by the Convention of the Continents of the Congress of Panama. Article 15 of the Convention conferred on each member of the Commission the privileges and immunities of a diplomatic agent, wherever he or she may be. The privileges of "neutrality," later enshrined as the privileges of "complete independence from territorial authorities," were also permanently established for the European Danube Commission established under the Berlin Treaty in 18781, and finally the "inviolability" privilege was granted to members of the Congo International Commission in 1885, while the International Commission itself enjoyed independence from territorial authorities in the performance of its functions.2
The important milestone in the development of the concept of privileges and immunities of international organizations and their officials was the establishment of the Hague Institutions, namely the Permanent Court of Arbitration in 1899 and the Court of Arbitral Justice in 1907, whose members enjoyed diplomatic privileges and immunities in the performance of their duties and out of their own country. According to Evans (2014, p. 404), unlike the privileges and immunities accorded to individual commissions, members of the Hague institutions were accorded privileges and immunities for their own benefit, not exclusively in favour of the institution they served, and were not designed to "exempt" them from territorial jurisdiction or make them inviolable for their official activities. On the contrary, their purpose was to increase the prestige of the court and judges and not to "remove" them from the control of a particular national interest.
At the end, diplomatic privileges and immunities were granted to the representatives of the Members and to the officials of the League of Nations in the exercise of their functions on the grounds of prestige and independence from the jurisdiction of national courts. As Michaels (1971, p. 43) states the League of Nations was to play a central and dominant role in international relations, the officials needed a position in the international community that would place them at least on the same footing as the national officials they encountered in the performance of their duties. A growing reason for granting diplomatic privileges and immunities was to allow officials to independently carry out their activities without the intervention of territorial jurisdiction. As regards the judges of the Permanent Court of International Justice, the proposed statute demonstrated the continuation of the practice of the Hague institutions, where its members, if out of their own country, were to be granted the privileges and immunities of diplomatic agents.3 However, the British delegation called for the elimination of part of the "out of their own country" provision, and its position prevailed and formulated a new concept of diplomatic status designed in the interest of an international official and different from that enjoyed by an ordinary diplomatic agent. Recast provision of Article 19 of the Statute granted diplomatic privileges and immunities to members of the court in carrying out the activities of the court, which was the case even if the members had the nationality of the State of the court´s seat and thus exercised their functions in the state of their nationality and jurisdiction.4 The experience of the League of Nations and the Permanent Court of International Justice in granting diplomatic privileges and immunities has laid the foundations for the establishment and development of the privileges and immunities of the United Nations, the United Nations specialized agencies and the International Court of Justice. While not providing much insight into new concepts regarding the status of international officials, it has set a valuable precedent - the theory of international privileges and immunities for officials who do not represent their states (Muller, 1995, p. 28).
Justification of international privileges and immunities
The granting of privileges and immunities to international organizations has always had and continues to have essentially the same rationale, and that is to ensure their legal and practical independence and autonomy from Member States to enable them to exercise their functions and fulfil fundamental purposes in their constitutive documents. And although the standard and concept of privileges and immunities has gradually changed, the immanent principle persisted. States establish international organizations primarily for a single purpose - international organizations can perform tasks more efficiently and effectively than individual States. For this intention to be fulfilled and maintained, international organizations cannot be subject to political and financial control by any Member State, or group of Member States that could hinder their functioning. They shall thus have the privileges and immunities in all Member States, which are necessary to attain the purposes for which they were established. In addition to political independence, international organizations also require financial independence. Furthermore, Singer (1995, p. 54) underlines that Member States should not be able to exercise power through their national courts over the exercise of the organization’s functions or the maintenance of its funds, which have been primarily determined and contributed collectively.
Independence is also the embodiment of equality between Member States. Gaillard and Pingel-Lenuzza (2002, p. 3) indicate that Member States may de facto be considered as shareholders who have separate identities from the identity of the organization, while holding equal shares with an equal distribution of power in both management and decision-making. The exercise of judicial power may therefore be contrary to respecting the principle of equality. Privileges and immunities serve as a stabilization mechanism allowing Member States to exercise sovereign authority at the same level. Also, a lack of necessary privileges and immunities could cause an "influx" of many unfounded and frivolous lawsuits that would jeopardize the "pride" of international organizations. In addition, it is considered that national courts do not have to be very neutral in deciding cases involving international organizations, which they consider to be a foreign element whose interests should be secondary to national or local interests. Another reason for granting privileges and immunities is impartiality. According to Singer (1995, p. 132), it is more of a psychological factor that an international organization "feels" more independent if it is not subject to legal proceedings in any Member State and does not have to submit itself to the decisions of national courts. According to Bekker (1994, p. 122), international organizations need special protection, because they lack sovereignty and their own territory and thus do not have the same rights as sovereign states.
Scope of international privileges and immunities
One of the most discussed and controversial issues, which causes many issues in practice is the scope of the privileges and immunities granted to international organizations. The generally accepted theory, as well as the theoretical basis for most international privileges and immunities, is the theory of functional necessity, according to which international organizations enjoy such privileges and immunities as are necessary for the fulfilment of their purposes. This theoretical basis is primarily stipulated in the constitutive statutes of international organizations and was briefly stated in the remarks by the Institute of American Law, which stated that "under international law, an international organization generally enjoys such privileges and immunities from the jurisdiction of a member state as are necessary for the fulfilment of the purposes of the organization, including immunity from legal process, and from financial controls, taxes and duties.“ (Klabbers, 2009, p. 136). The functional necessity standard is based on the idea that international law does not automatically confer any substantive rights or obligations on international organizations. As far as States are concerned, the very fact of their statehood brings with it certain rights and benefits, such as immunity from suit for their sovereign activities or the right to accede to many international treaties. Similar considerations do not necessarily apply to international organizations. If some rights and obligations flow automatically from the so-called "organizationhood," those are limited to more or less procedural nature. International organizations have the right to bring a claim or enter into a contractual relationship, but they do not automatically have immunity from legal proceedings before national courts. Klabbers (2009, p. 32) further claims that since "organizationhood" does not provide sufficient answers, there is nothing left but to turn to functional necessity. In addition, this concept has considerable explanatory power in the sense that it helps to explain why States set up international organizations in the first place.
On the other hand, the theory of functional necessity suffers from serious shortcomings. First, the granting of privileges and immunities is usually the result of negotiations between the international organization and its host state, and negotiators may have very different views on the functional needs of the international organization (Reinisch, 2013, p. 206). This is also related to the open wording, where functional necessity can mean different, even contradictory, things for different judges, or for different states. The illustrative case is Re International Bank for Reconstruction and Development and International Monetary Fund vs. America Cables and Radio Inc. and Other Cable Companies from 1953, in which the World Bank and the International Monetary Fund filed a lawsuit against cable operators to reduce the fees they had to pay for official telecommunications reports. Both international organizations argued that the purpose of granting privileges and immunities is to protect the functioning of the international organization from unjustified interference, including protection against unreasonably high fees. However, the defendant cable operators argued that neither the World Bank nor the International Monetary Fund had demonstrated the need to pay lower than standard fees to perform their functions, thus basing their argument on a radically different understanding of the needs of organizations (Klabbers, 2009, p. 143).
A second serious problem has recently been observed in the ability of an international organization to commit a breach of public order or even human rights under the auspices of functional necessity. Functional necessity may require that the employment policy of an international organization not be subject to the local jurisdiction of the host state. If this policy overlooks discrimination or sexual harassment, the balance between the organization and the individual may be too much in favour of the international organization. Consequently, the host state may be faced with conflicting obligations, an obligation to grant immunity to an international organization or an obligation to grant access to court as one of the fundamental human rights (Reinisch, 2013, p. 96).
The biggest and most problematic contradiction concerns the scope of jurisdictional immunities that protect international organizations, especially from the jurisdiction of the courts of their host States, and whose logical rationale is to ensure an independent and peaceful working environment for the international organization. According to the decisions of most national courts, international organizations enjoy absolute jurisdictional immunity under the applicable provisions, which are laid down in multilateral conventions or agreements on privileges and immunities, or so-called headquarters agreements. Article 2 Section 2 of the Convention on the privileges and immunities of the United Nations provides: "The United Nations, 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." The wording “immunity from every form of legal process” is considered as a standard of absolute immunity and is generally interpreted broadly in the sense that legal process involves all types of legal proceedings before national authorities, whether qualified as judicial, administrative, or executive. International organizations themselves have repeatedly argued that less than absolute immunity is not enough (Collins, White, 2011, p. 211).
In the case of Boimah vs. General Assembly of the United Nations from 1987 the United States District Court for the Eastern District of New York ruled that, under the UN Convention, UN immunity is absolute, subject only to its express waiver by the organization in specific cases. Moreover, in the case of Manderleir vs. UN from 1966, the Belgian Civil Tribunal ruled that Article 2 of the UN Convention grants general immunity from jurisdiction and does not limit it to what the necessity strictly requires to fulfil the purposes of the defendant.5 Absolute immunity of the International Monetary Fund was implicitly recognized in the case of Loughran et al. vs. United States from 1963 based on its constitutive statute providing for immunity from every form of legal process. The Swiss Federal Supreme Court also insists on granting absolute jurisdictional immunity to international organizations. In the case of Groupement d´entreprises Fougerolle and consorts vs. The European Organization for Nuclear Research from 1992 the court unequivocally ruled that international organizations have absolute and complete immunity without any restrictions (Reinisch, 2013, p. 242).
Limitation of the right of access to court as a result of jurisdictional immunity or vice versa?
Another important issue requiring detailed research is whether the jurisdictional immunity of international organizations may limit the right of access to court or, conversely, whether the scope of jurisdictional immunity is limited because of the right of access to court. The provisions of the relevant human rights conventions enshrining the right of access to court do not contain any restrictive wording implying limitations applicable to a certain category of persons. Such a broad and unqualified wording of the provision does not suggest any exceptions necessary for reasons of jurisdictional immunity (Ryngaert, 2009, p. 1). However, the jurisdictional immunities of international organizations as well as of states are taken for granted and are considered unaffected by the adoption of Article 6 of the European Convention on Human Rights. The rules on immunity could be understood as pre-existing rules of international law, which constitute an implicit exception to Article 6 of the European Convention.
Moreover, in a few judgments, the European Court of Human Rights explicitly stated that the right of access to court guaranteed by Article 6 of the European Convention is not absolute and recognized the implicit limitations of this right. The jurisdictional immunity of international organizations as well as states could thus be one of these included limitations. Since the judgment in Ashingdane vs. the United Kingdom from 1985 the European Court of Human Rights has applied the so-called the "Ashingdane test," according to which the right of access to court may be restricted if three conditions are met.6 First, immunity must serve a legitimate purpose, second, the means used must be proportionate to that purpose and, third, the very essence of the law must not be weakened. However, as regards the third criterion, jurisdictional immunity de facto eliminates the right of access to court, so it is not appropriate to apply this criterion, as immunities concern the very essence of the right of access to court. Thus, in fact, the European Court of Human Rights applies only the first two criteria in assessing an alleged violation of the right of access to court due to the jurisdictional immunity of international organizations.
Furthermore, Kloth (2010, p. 7) highlights that the traditional practice of granting immunity to international organizations may have been a decisive factor for the European Commission of Human Rights, which has not seen any human rights problems, including Article 6 of the European Convention. In the case of Ary Spaans vs. the Iran-United States Claims Tribunal it noted that it was in line with international law for States to grant privileges and immunities to international bodies situated in their territory and did not consider that such a restriction of national sovereignty to allow an international body to function would raise a disputed issue under the European Convention. On the other hand, although the historical acceptance of the immunity of sovereign state and international organizations as a limitation of Article 6 of the European Convention can be credible and currently prevalent, dynamic interpretation of human rights texts requiring a constant revision of hitherto recognized standards could invalidate this traditional approach.
The “European consensus” on the substantive content of the rights contained in the European Convention is not immutable. While the exclusion of international organizations and sovereign states on the basis of the standard of absolute immunity was acceptable in the 1950s, this concept may have changed, as evidenced by the extensive interpretation of the rights protected by the European Convention (Klabbers, Wallendahl, 2011, p. 142). In addition, important considerations were made in connection with the adoption of the European Convention on State Immunity in 1972, which codified the European trend of restrictive sovereign immunity. By enabling claims against states generally relating to their acta iure gestionis, it seems that a wide range of actions concerning at least the core of civil rights and obligations is possible. Where states deny the jurisdiction of their courts for legal process against foreign states only because of acta iure imperii of those foreign states, their obligation to provide access to court can be largely fulfilled. Although this area of law has not yet achieved a higher level of protection for individuals seeking damages against sovereign states or international organizations in matters concerning their civil rights and obligations, there is a political argument that the collective exclusion of a group of potential defendants from national jurisdiction severely restricts the fundamental right of individuals to their access to justice.
Concluding remarks
International organizations, unlike states, do not control territory or a population of their own and thus always operate within the jurisdiction of one of their Member States. This makes them vulnerable to interference by the host states. In order to mitigate this risk, international organizations have been granted in the territory of all Member States privileges and immunities as may be necessary for the fulfilment of their purposes in their constitutive statutes and founding treaties. This has been accepted as a standard or doctrine of functional necessity, on the basis of which international organizations and their functionaries shall possess only necessary, i. e. functional immunities and privileges. However, what may prima facie appear as restricted functional immunity is in fact absolute immunity of international organizations from the jurisdiction of domestic courts which has been codified in multilateral conventions or agreements, detailing the scope of granted functional privileges and immunities of organizations and their functionaries.
Conventions or agreements on the privileges and immunities of international organizations therefore establish immunity from every form of legal process, which not only directly contradicts the functional principle stipulated in the constitutive documents of organizations, but has equally led to extensive interpretation of the jurisdictional immunity of international organizations and created a class of “exempted persons“ that, simply said, cannot be brought before domestic courts of any country for anything they do (or fail to do). Absolute immunity of international organizations has been accepted in practice as well as in decisions of national courts which have been consistently denying claims and lawsuits against international organizations without even considering the merits of the case. National courts of Member States refuse to judge international organizations by simply referring to their absolute immunity from every form of legal process, embodied in multilateral conventions and agreements on privileges and immunities, and absence of voluntary waiver of immunity by the organizations themselves.
Despite many adopted human rights conventions, calls for respect of basic human rights and fundamental freedoms by all, increased commitment to democracy and the rule of law international organizations have effectively managed to escape any responsibilities or obligations in international law, resulting in violating basic human right of access to court and impossibility to achieve justice for those negatively affected by the activities of international organizations. After all, international organizations cannot „waste“ their time and resources by legal process even for their illegal and unlawful practices as they need to function and fulfil their purposes at all cost. As a result of established practice, case law of national courts and previous experience by international organizations domestic courts almost always dismiss cases brought against organizations on jurisdictional grounds. According to my view, although the European Court of Human Rights recognized possible limitations of the fundamental right of access to court as a result of immunity of international organizations in several judgments, at the end it also concluded that the very right is not absolute in its terms.
In conclusion, in the 21st century there has been prevalence of Member States and their courts upholding privileges and immunities of international organizations, which are de facto an „outgrowth“ of the Westphalian interstate system, and which are confronted with a quest for human rights protection functioning as the Letztbegründung of the international order.
Mgr. Veronika Kubalová, LL.M. et LL.M.
Masarykova univerzita Právnická fakulta, Česká republika
REFERENCES
Publications
[1] BEKKER, Pieter H. F. (1994). The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (Legal Aspects of International Organization). The Hague: Martinus Nijhoff, 1994, 265 pp. ISBN 978-0-7923-2904-6.
[2] COLLINS, Richard; WHITE, Nigel D. (2011). International Organizations and the Idea of Autonomy. Institutional Independence in the International Legal Order. London: Routledge, 2011, 446 pp. ISBN: 978-0-415-55088-8.
[3] EVANS, Malcolm. (2014). International Law. 4th ed. New York: Oxford University Press, 2014, 944 pp. ISBN 978-0-19-965467-3.
[4] KLABBERS, Jan. (2009). An Introduction to International Institutional Law. 2nd ed. New York: Cambridge University Press, 2009, 360 pp. ISBN 978-0-521-73616-9.
[5] KLOTH, Matthias. (2010). Immunities and the Right of Access to Court under Article 6 of the European Convention on Human Rights. Leiden: Martinus Nijhoff, 2010, 224 pp. ISBN 978-90-04-18184-7.
[6] MICHAELS, David B. (1971). International Privileges and Immunities: A Case for a Universal Statute. The Hague: Martinus Nijhoff, 1971, 249 pp. ISBN 90-247-5126-8.
[7] MULLER, A. S. (1995). International Organizations and Their Host States: Aspects of Their Legal Relationship. The Hague: Kluwer Law International, 1995, 348 pp. ISBN 90-411-0080-6.
[8] REINISCH, August. (2013). The Privileges and Immunities of International Organizations in Domestic Courts. Oxford: Oxford University Press, 2013, 400 pp. ISBN 978-0-19-967940-9.
Articles in journals
[9] GAILLARD, Emmanuel; PINGEL-LENUZZA, Isabelle. (2002). International Organisations and Immunity from Jurisdiction: To Restrict or to Bypass. International and Comparative Law Quaterly [online]. 2002, vol., 51, pp. 1-15 [13. 3. 2015]. Accessed from: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid....
[10] NEUMANN, Peter. (2006). Immunity of International Organisations and Alternative Remedies against the United Nations. Universität Wien: Rechtswissenschaftlichen Fakultät [online]. Rechtswissenschaftliche Fakultät der Universität Wien, © 2006 [15. 3. 2015]. Accessed from: http://ilmc.univie.ac.at/uploads/media/Neumann_-_Immunity_of_IOs_and_alt....
[11] RYNGAERT, Cedric. (2009). The Immunity of International Organizations before Domestic Courts: Recent Trends. Institute for International Law [online]. 2009, no. 143, pp. 1-23 [13. 3. 2015]. Accessed from: https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP143e.pdf, 143(2), 1-23.
[12] SINGER, Michael. (1995). Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns. Virginia Journal of International Law [online]. 1995, vol. 36, no. 53, pp. 53-165 [13. 3. 2015]. Accessed from: http://heinonline.org/HOL/LandingPage?handle=hein.journals/vajint36&div=..., 36(53), 53-165.
1 Article 53 The Treaty of Berlin: „The European Commission of the Danube, at the table of which Roumania shall be represented, is maintained in its functions, and will exercise them henceforth as far as Galatz in complete independence of territorial authority. All treaties, agreements, deeds, and decisions relative to its rights, privileges, prerogatives, and obligations are confirmed.“ Accessed from: http://archive.thetablet.co.uk/article/20th-july-1878/11/the-treaty-of-b....
2 Article 18 General Act of the Conference of Berlin Concerning Congo: „The members of the International Commission as well as the agents named by it, are invested with the privilege of inviolability in the exercise of their functions. The same guarantee shall extend to the offices, bureaus and archives of the Commission. “ Accessed from: http://www.jstor.org/stable/2212022?seq=1#page_scan_tab_contents.
3 Article 24 Convention for the Pacific Settlement of International Disputes: „The members of the Court, in the discharge of their duties and out of their own country, enjoy diplomatic privileges and immunities.“ Accessed from: http://avalon.law.yale.edu/19th_century/hague01.asp.
4 The adopted provision of Article 19 statute of the court: „The members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities. “
5 Manderleir v. United Nations and Belgian State, Brussels Appeals Court, Decision of 15 September 1969, United Nations Juridical Yearbook 1969.
6 Paragraph 57 Judgment of the European Court of Human Rights, 28 May 1985, Application no. 8225/78 (Ashingdane v. the United Kingdom). Accessed from: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57425#{"itemid":["001-57425"]}.
