the jurisdictional immunities of international organisations and their officials

336 Pages·2014·10.66 MB·English

THE JURISDICTIONAL IMMUNITIES OF
INTERNATIONAL ORGANISATIONS AND THEIR
OFFICIALS
CHANAKA WICKREMASINGHE
LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE
THESIS SUBMITTED FOR PhD EXAMINATION
MARCH 2003
UMI Number: U586463
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ABSTRACT
This thesis approaches the questions of the jurisdictional immunities of international
organisations and their officials as the means whereby international organisations can
be accommodated within the system of international law which allocates
jurisdictional competence to States.
The range of doctrinal approaches to these questions in the secondary literature is
considered. However, general rules on such immunities are only of limited value in
that each organisation must viewed on its own merits, and in the light of its own
particular functional requirements.
The thesis therefore seeks to demonstrate this individuated approach empirically by
mapping the extensive range of international practice, i.e. treaty provisions, official
decisions and views of international organisations and decisions of international
courts and tribunals. At the level of national law, a comparative survey is made of
legislative practice of various States and the decisions of their courts.
The immunities of international officials are an extension of the immunities of their
employer organisations, and also a means of ensuring institutional coherence and
integrity.
This thesis concludes that there are primarily two aspects to this process of
accommodation of international organisations in the system of allocation of national
jurisdiction:
Firstly there is a functional aspect, which concerns the degree to which national
authorities may exercise jurisdiction over the relations of international organisations
with third parties. This is derived from treaty law and is specifically granted to meet
functional requirements of each organisation.
Secondly there is an institutional aspect, which concerns the internal relations of an
organisation, including the relations between its organs, its relations with its member
States and its employment relations. The abstention of national courts on these issues
might best be considered as a requirement deriving from the international status of
organisations, and, therefore, of more general application as a requirement of
customary international law.
CONTENTS
Page
INTRODUCTION 1
Chapter 1. THE LEGAL STATUS OF INTERNATIONAL ORGANISATIONS
Introduction 7
A The Status of International Organisations in International Law 8
1. Historical perspective 8
2. The United Nations 18
3. International Personality in practice 23
(a)Treaty-making powers 24
(b) Powers of legation 25
(c) Powers to make ands receive international claims 27
4. Doctrinal Writings on International Personality 29
(a) The “delegated powers” approach 29
(b) The “implied powers” approach 31
(c) The “inherent powers” powers approach 33
B. The Status of International Organisations in Municipal Law 38
1. The Relationship of International Personality and Legal
Personality in Municipal Law 38
2. Legal Personality in Municipal Law 39
(a) Where the forum State is a member of the organisation 39
(b) Legal personality of international organisations in the
courts of third States 46
3. Capacities Attendant on Legal Personality 53
(a) The capacity to contract 54
(b) The capacity to own property 56
(c) The capacity to participate in legal proceedings 58
Conclusions 60
Chapter 2. TOWARDS A GENERAL APPROACH TO THE
JURISDICTIONAL IMMUNITIES OF INTERNATIONAL ORGANISATIONS
Introduction 62
A. The Nature of Jurisdictional Immunities 63
B. Rationalising the Immunities of International Organisations 66
1. The Functional Basis of the Immunities of International
Organisations
(a) International status and functional necessity 67
(b) Ensuring institutional efficiency 70
(c) Equity and Equality within the organisation 71
2. Countervailing pressures favouring the assertion of local
jurisdiction 72
(a) Maintenance of the rule of law 72
(b) Human rights - access to justice 73
(c) Security of transactions 75
(d) National security 75
C. Doctrinal Approaches to the Proper Extent of Immunity 77
1. Absolute immunity 79
2. Restrictive immunity 82
3. Functional criteria for restricting immunity 84
D. An Individuated Response - ratione materiae ? 87
1. Substantive exemption from national jurisdiction - the internal
governance of international organisations 89
2. Employment 92
(a) The international civil service 94
(b) Short term or temporary staff 98
(c) Local staff 99
3. Contracts for Goods and Services 101
4. Torts 112
5. Immovable property 115
E. An Individuated Response - Conventional Immunities ratione personae 118
Conclusions 122
Chapter 3. IMMUNITIES OF INTERNATIONAL ORGANISATIONS IN
INTERNATIONAL LAW
Introduction 124
A. Treaty Provisions 125
1. Immunity from “every form of legal process” 125
(a) The United Nations 125
(b) The Specialised Agencies 133
(c) Other “political” and “military” organisations 136
(d) International judicial bodies 138
2. Treaty provisions containing express limitations on immunity 139
(a) Organisations with economic and commercial functions 139
(b) Specialised organisations of limited or regional
composition 145
3. The European Communities 148
4. Public international corporations 149
B. The Practice of International Organisations 150
1. General 150
2. Waiver 154
3. Immunity from measures of execution 156
C. Decisions of International Courts and Tribunals 157
1. The relationship between international organisations and the
forum State 158
(a) Decisions of the International Court of Justice 159
(i) State jurisdiction 159
(ii) Development of international institutional law 161
(iii) The relationship of international organisations with
State j urisdiction 161
(b) International arbitral decisions 168
2. International judicial decisions on the relationship of international
organisations and private parties 172
3. International judicial decisions on the relationship of the private party
and forum state in relation to immunity 179
Conclusions 184
Chapter 4. IMPLEMENTATION AND APPLICATIONOF IMMUNITIES IN
NATIONAL LAW
Introduction 186
A. Implementation of International Immunities in National Law 187
B. Application of Immunities by National Courts 194
1. Application and interpretation of treaty provisions on immunity,
and limitations thereon 199
(a) Immunity 199
(b) Waiver 202
(i) Contractual waiver 203
(aa) Choice of jurisdiction clauses 203
(bb) Choice of law clauses 206
(ii) Submission to arbitration 208
(aa) Arbitration and immunity from
jurisdiction 211
(bb)Arbitration and immunity from execution 220
(c) The position of organisations enjoying a limited immunity 223
(d) The effect of the restrictive doctrine of State immunity 233
(e) Do national courts consider there to be a broad limitation to
immunity based upon “functional necessity”? 240
2. Immunity in the absence of a treaty provision 243
(a) Where the forum State is a member of the organisation in
question 245
(b) Where the forum State is not a member of the
organisation 249
Conclusions 256
Chapter 5. THE INDEPENDENCE AND JURISDICTIONAL IMMUNITY OF
INTERNATIONAL OFFICIALS
Introduction 259
A. Historical Development 260
B. Officials of the United Nations 265
1. Jurisdictional immunities 265
2. Holders of immunity 267
(a) High officials (officials of the first category) 267
(b) Other officials (officials of the second category) 268
(c) Experts on mission 269
3. Nature of immunities 271
C. Jurisdictional Immunities of Officials of other International
Organisations 275
D. Immunities of officials in practice 279
1. Officials of the first category 279
2. Officials of the second category 282
(a) Scope of immunity 282
(b) Characterisation of “official acts” 288
(c) Scope of immunity ratione temporis 297
3. Waiver 298
Conclusions 302
CONCLUSIONS 305
BIBLIOGRAPHY 312
INTRODUCTION
The subject of this study is the jurisdictional immunities of international
organisations and their officials. These immunities arise at the point at which
international organisations or their officials come into contact with a municipal legal
system. This maybe as a result of their relations with States in which they operate, or
with private persons whose activities are subject to the jurisdiction of such States.
Immunities are required by international law (though in practice their
implementation will be achieved through the action of national authorities) and seek
to ensure an appropriate response from that municipal local system to the entry of an
international organisation into its purview.
In seeking to understand and explain international immunities, they might be seen as
measures which seek to protect an organisation from unwarranted interference, or
control, by any individual State, in the achievement of the functions collectively
entrusted to it by its member States. This will usually require a recognition that in
achieving those purposes the collectivity is a distinct actor from its member States
(i.e. many of its acts will be attributable to the organisation itself, rather than
constituting an aggregation of a series of similar acts by each member State).
As a common endeavour, no single State should seek to wield undue influence over
an organisation or seek to derive undue benefit for itself. Thus an organisation is
subject to the collective control of its member Sates, but independent of the control
of any single State - it is created by and governed by international law.
1
However since international organisations are established under international law,
law serves two important purposes in relation to international organisations. On the
one hand international organisations rely upon law and legal technique as the
primary means of their protection. On the other hand one of the major claims to
legitimacy of international organisations is their rational-legal foundation. It is
therefore important to provide a legally coherent account of the relations between
international organisations and national legal systems, particularly where the rights
of individuals are concerned.
This thesis will seek to examine the techniques by which these relations are
managed, on a comparative basis between different organisations and in different
legal systems. The approach will be empirical examining how in practice solutions
have been sought at the international and national levels.
The distinctive personality of international organisations is of quite a different nature
than that of States. A State represents a political community, the effective
government of a population in a fixed area territory, enjoying sovereignty and
equality with other States. International organisations by contrast are essentially legal
constructions. In legal analysis they do not have the material attributes of States, their
actions always take place on the territory of a State, and their officials are nationals
of States. Under international law each State enjoys plenary jurisdiction over its
territory enabling each to develop a complete legal system of its own, including both
public law and private law. International organisations on the other hand tend only to
have a limited system of internal law fashioned to meet their institutional needs, and
must rely on the legal systems of particular States in respect of other matters. Finally
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