International Organizations Before National Courts Part 5 docx

nature for states vis-a`-vis the organization, however, is sometimes ques- tioned. In particular, it raises the issue of whether international organizations can be viewed as parties or merely as beneficiaries of such treaties. Most of the discussion revolves around the UN and its status under the General Convention. In the Reparations case the ICJ set the boundaries for the future debate by stating that the General Convention ‘creates rights and duties between each of the signatories and the Organization’. 557 It left open, however, whether this was to be regarded as a consequence of the UN’s status as a party or as a beneficiary. The majority of authors seemed to support the view that the UN somehow gained party status to the General Convention. One piece of evidence in favour of this view results from the UN Secretariat’s treatment of the General Convention. The fact that the Secretary-General registered it ex officio might indicate that he views the UN as a party to the Convention. 558 The Convention can be regarded not only as a ‘multilateral inter-State agreement, but also a series of bilateral agreements between the UN and each State party to the Convention, defining rights and obligations for both parties’, thus considering the UN itself to be a party to the General Convention. 559 Strong support for this view also stems from the text of the General Convention: section 35 provides that the Convention ‘shall be in force as between the United Nations and every Member’. Since treaties are normally ‘in force’ between their parties, the UN’s position considering itself as a party seems to be a logical conclusion. 560 Others emphasize the peculiar rules concerning the conclusion and entry into force of the General Convention. An important characteristic of the General Convention is that Article 105(3) of the UN Charter requires approval by the UN General Assembly. One could argue that ‘the vote of approval by the General Assembly was equivalent to ratification by the UN. The Contracting Parties are, on the one hand, each Member State and, on the other, the UN as such.’ 561 The dispute settle- ment provisions of the General Convention could also give rise to such a conclusion. It provides that ‘[i]f a difference arises between the United Nations . . . and a Member . . . a request shall be made for an advisory 557 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, (1949) ICJ Reports 174 at 179. 558 Bowett, The Law of International Institutions, 344. 559 Paul C. Szasz, ‘International Organizations, Privileges and Immunities’ in Rudolf Bern- hardt (ed.), Encyclopedia of Public International Law (2nd edn, 1995), vol. II, 1325–33 at 1327. 560 Bekker, The Legal Position, 130ff, note 572. 561 Kunz, ‘Privileges and Immunities’, 848. 143avoidance techniques opinion . . . The opinion given by the Court shall be accepted as decisive by the parties’. 562 One could indeed infer from this wording that the UN may be one of the ‘parties’ as this term is used in section 30. 563 Other authors, however, maintain that international organizations are merely chief beneficiaries and guardians of multilateral immunity in- struments. 564 The ‘beneficiary’ approach – as opposed to the ‘party’ ap- proach – seems to be more compatible with principles of treaty law than the sometimes rather far-fetched interpretations given above. To regard the UN a beneficiary of the General Convention rather than a party seems to be a ‘safe track’ argument that can be easily accepted. The statement on behalf of the Secretary-General in the Mazilu case 565 before the ICJ contains this reasoning in an in eventu argument. He elaborates that, if the UN were not recognized as a party to the General Convention: it is clearly a third organization that can derive obligations and rights under that instrument pursuant to the principles codified in Articles 35 and 36 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. The acceptance or assent of the organization to such obligations and rights is evidently that given by the General Assembly in adopting the Convention and proposing it to Member States, an action taken pursuant to the explicit authorization of paragraph 3 of the Article 105 of the Charter. 566 The ICJ, in its advisory opinion, did not solve the issue, probably because it could render its affirmative opinion on the applicability of the Conven- tion on the basis of either theory. Bilateral headquarters and host agreements Apart from the multilateral treaties mentioned above, a large number of bilateral agreements regulate the issue of immunity from suit – as part of general immunities – in a rather detailed fashion. Such bilateral treaties are usually termed ‘headquarters agreements’ or ‘seat agreements’, if they are concluded between the international organization and the coun- 562 Article VII section 30 of the General Convention. 563 Statement Made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967, reprinted in (1967) United Nations Juridical Yearbook 311 at 312. 564 Ralph Zacklin, ‘Diplomatic Relations: Status, Privileges and Immunities’ in Dupuy, R J. (ed.), Manuel sur les organisations internationales, A Handbook on International Organizations (1988), 179–98 at 183. 565 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, (1989) ICJ Reports 177. 566 ‘Applicability of Article VI, Section 22, of the Convention on the Privileges and Immuni- ties of the United Nations’, Statement of the Secretary-General, (1992) ICJ Pleadings 185. 144 descriptive analysis try where it has its seat or one of its seats. If these special agreements are concluded with non-seat states, they may be called ‘host agreements’, ‘technical assistance and supply agreements’, etc. 567 Frequently, such bilateral agreements are considered merely supple- mentary to constitutive instruments or general immunities and privi- leges treaties and, thus, do not contain any express provisions on immun- ity from suit. 568 Unwritten immunity rules The jurisdictional immunity of international organizations is primarily regulated by international agreements. Because of the rather dense web of existing treaty relations concerning this subject, the importance of customary law on this matter has been characterized as and probably is ‘marginal’. 569 Still, there are a number of possible instances where gen- eral international law becomes relevant. Custom might legitimately serve as a ‘gap-filler’ 570 in situations where applicable international agreements contain no immunity provisions or where no treaty relations exist, e.g. because of the non-ratification of a specific immunity instrument by a member state of an international organization, 571 before such an instrument is negotiated or before its entry into force, or in the case of an international organization vis-a`-vis non-member states. 572 Custom as a source of immunities The existence of customary rules as a potential source of immunities, and in particular of jurisdictional immunity, is generally acknowledged in 567 Abdullah El-Erian (Special Rapporteur), ‘Preliminary Report on the Second Part of the Topic of Relations Between States and International Organizations’ (UN Doc. A/CN.4/304) Yearbook of the International Law Commission (1977), vol. II, Part One, 140–55 at 145. 568 Cf. third preambular paragraph of the Austria–UNIDO Headquarters Agreement: ‘Con- sidering that it is desirable to conclude an agreement, complementary to the Convention on the Privileges and Immunities of the United Nations, to regulate questions not envisaged in that Convention arising as a result of the establishment of the headquarters of [UNIDO] at Vienna . . .’ (emphasis added). See also section 26 of the US–UN Headquarters Agreement 1947: ‘The provisions of this agreement shall be complementary to the provisions of the General Convention.’ 569 Felice Morgenstern, Legal Problems of International Organizations (Cambridge, 1986), 5. 570 Restatement (Third), § 467, Comment f. 571 Cf. Galasso v. Istituto italo-latinoamericano, Corte di Cassazione, 3 February 1986; and Cristiani v. Istituto italo-latino-americano, Corte di Cassazione, 23 November 1985. See pp. 194ff below. 572 See pp. 152ff below. 145avoidance techniques legal writing. 573 There is, however, an almost infinite variety of opinion as far as the specific consequences are concerned. Sometimes, the methodol- ogy of inquiring into customary rules might prejudge the answers. It has been pointed out that the question of the existence of a customary law of immunity of international organizations can be asked in two very differ- ent ways. On the one hand, one could question whether there are custom- ary rules granting immunity to international organizations and, if so, what their scope is. On the other hand, one could ask whether the general customary rules concerning immunity from jurisdiction (as they are valid between states) are applicable to international organizations. 574 According to what probably remains the majority view, international organizations enjoy absolute immunity from legal proceedings even if no express treaty provision is applicable. 575 One opinion holds that a custom- ary rule mandates absolute immunity for the organization, but only in the member states. 576 Others, who would agree with the presumption of a customary law governing the immunities to be accorded to the UN, 577 are more cautious, however, concerning other international organiz- ations. 578 Yet others remain sceptical concerning the existence of non- treaty-based judicial immunity of international organizations at all. 579 573 Bettati, Le droit des organisations internationales, 106; Bekker, The Legal Position, 122 at 147; Harders, ‘Haftung und Verantwortlichkeit Internationaler Organisationen’, 249; Lalive, ‘L’immunite´ de juridiction’, 304; Morgenstern, Legal Problems, 5; Hans-Joachim Priess, Internationale Verwaltungsgerichte und Beschwerdeausschu¨sse, Eine Studie zum gerichtlichen Rechtsschutz fu¨r Beamte internationaler Organisationen (Berlin, 1989), 61; Restatement (Third), § 467(1) and Introductory Note to § 467, Reporters’ Note 1; and Schermers, International Institutional Law, 795. 574 Friedrich Schro¨er, ‘De l’application de l’immunite´ jurisdictionnelle des e´tats e´trangers aux organisations internationales’ (1971) 75 Revue ge´ne´rale de droit international public 712–41 at 713. 575 Werner Gloor, ‘Employeurs titulaires de l’immunite´ de juridiction’ in Universite´s de Berne, Fribourg, Geneva, Lausanne et Neuchatel, Ense`ignement de 3e cycle de droit 1987 (eds.), Le juriste suisse face au droit et aux jugements e´trangers, ouverture ou repli? (1988), 263–89 at 278; Harders, ‘Haftung und Verantwortlichkeit Internationaler Organisationen’, 250; and Ignaz Seidl-Hohenveldern, ‘L’immunite´ de juridiction des Communaute´s europe´ennes’ (1990) Revue du Marche´ Commun No. 338, 475–9 at 479. 576 Seidl-Hohenveldern, ‘L’immunite´’, 475; and Ignaz Seidl-Hohenveldern, ‘Dienstrechtliche Klagen gegen Internationale Organisationen’ in von Mu¨nch (ed.), Staatsrecht – Vo¨lkerrecht – Europarecht. Festschift fu¨r Hans-Ju¨rgen Schlochauer (Berlin and New York, 1981), 615–34 at 628. 577 Cf. United Nations Secretariat, ‘The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency Concerning Their Status, Privi- leges and Immunities, 1967’ in Yearbook of the International Law Commission (1967), vol. II, 222, note 49. 578 Bekker, The Legal Position, 147. 579 Beitzke, ‘Zivilrechtsfa¨higkeit’, 115; Reuter in Yearbook of the International Law Commission (1985), vol. I, 288. Similarly sceptical is Ress in ILA, Report of the 66th Conference, Buenos Aires (1994), 474. 146 descriptive analysis There are various types of evidence for the customary quality of im- munity from suit of international organizations. Most prominently, the near-uniformity of treaty provisions granting immunity appears to evi- dence a customary principle. This argument is supported by the wide- spread accession to the relevant treaties, i.e. near universal accession in the case of the UN (the General Convention) and broad adherence in the case of other UN organizations (the Special Convention). The treaty/ custom relationship might also become pertinent in so far as treaty provisions sometimes seem to affirm the existence of customary prin- ciples. 580 This discussion is part of the more general debate about treaties as evidence of custom. 581 The uniformity or near uniformity of treaty provi- sions concerning immunity from suit is the primary argument advanced by those in favour of a customary immunity rule. 582 The widespread ratification of treaty law leading to an almost universal accession to the standards contained therein might also be evidence that its provisions have gained customary status. This seems to be a rather firmly held opinion at least within the UN system. 583 However, it is well known from other areas that the same fact of a broad and uniform adherence to treaty norms may lead to an opposite conclusion, regarding the need for treaty provisions as evidence of a lack of customary rules. 584 580 See p. 148 below. 581 Richard R. Baxter, ‘Multilateral Treaties as Evidence of Customary International Law’ (1965–6) 41 British Yearbook of International Law 275–300 at 277ff; Karl Doehring, ‘Gewohn- heitsrecht aus Vertra¨gen’ (1976) 36 Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lker- recht 77–95 at 77ff; Ulrich Scheuner, ‘Internationale Vertra¨ge als Elemente der Bildung von vo¨lkerrechtlichem Gewohnheitsrecht’ in Flume, Hahn, Kegel and Simmonds (eds.), Internationales Recht und Wirtschaftsordnung. Festschrift fu¨r F. A. Mann (Munich, 1977), 410–38 at 420ff. 582 Lalive, ‘L’immunite´ de juridiction’, 305. 583 For instance, the UN Secretary-General reasoned that the ratification of the General Convention by an overwhelming majority of ninety-six states after almost twenty-two years might be interpreted in a way that ‘the standards and principles of the Conven- tion had been so widely accepted that they had now become a part of the general international law governing the relations of states and the United Nations’. Annual Report of the Secretary-General, 23 GAOR, Supp. 1 (A/7201), 209. Almost identical language can be found in the ‘Statement Made by the Legal Counsel at the 1016th meeting of the Sixth Committee of the General Assembly on 6 December 1967’, reprinted in (1967) United Nations Juridical Yearbook 311 at 314. See also UN General Assembly Resolution 2328 (XXII) of 18 December 1967, operative para. 3 ‘[u]rging member states of the United Nations, whether or not they have acceded to the Convention on the Privileges and Immunities of the United Nations, to take every measure necessary to secure the implementation of the privileges and immunities accorded under Article 105 of the Charter of the Organization . . .’. 584 Cf. Doehring, ‘Gewohnheitsrecht aus Vertra¨gen’, 81. 147avoidance techniques The content of treaty law itself could also be regarded as evidencing custom. Sometimes, it is less the uniformity of treaty provisions or the common adherence to them, but rather their wording that seems to support the existence of customary principles or at least underlines the contracting parties’ belief in their existence. A good example of this phenomenon is contained in the Agreement between Egypt and WHO which provides that ‘[t]he Organization and its principal or subsidiary organs shall have in Egypt the independence and freedom of action belonging to an international organization according to international practice’. 585 This treaty provision has been interpreted as an acknowledg- ment of the existence of customary law on the subject. 586 It seems that the Interim Arrangement on Privileges and Immunities of the United Nations concluded between the Secretary-General of the UN and the Swiss Federal Council would be open to a similar interpretation. It provides, inter alia, that ‘[t]he Swiss Federal Council recognizes the international personality and legal capacity of the United Nations. Consequently, according to the rules of international law, the organization cannot be sued before the Swiss Courts without its express consent.’ 587 Here immunity from legal process seems to flow from an unidentified source of international law (‘according to the rules of international law’) and appears as a conse- quence of the international organization’s legal personality. 588 Sometimes the applicable treaties do not contain specific rules on the question of immunity, but rather refer to customary principles. Inspired by a comparable phenomenon in private international law this kind of reference has been called renvoi. 589 These renvoi, or ‘reference’ or ‘incorpor- ation’ clauses, might directly refer to custom, like the 1965 Protocol on the Privileges and Immunities of the European Communities whichaccordsto the representatives of the Communities the ‘customary privileges, im- munities and facilities’. 590 They may also refer to state immunity or even 585 Article II(3) of the WHO–Egypt Agreement 1951. 586 Abdullah El-Erian (Special Rapporteur), ‘Preliminary Report on the Second Part of the Topic of Relations Between States and International Organizations’ (UN Doc. A/CN.4/304) Yearbook of the International Law Commission (1977), vol. II, Part One, 140–55 at 152. 587 Article I(1) of the UN–Swiss Interim Arrangement 1946. 588 The UN Secretariat interprets this immunity provision as one ‘derived from interna- tional law’ thereby suggesting that it is not a legal consequence of the treaty itself, but rather of a pre-existing general international law principle. United Nations Secretariat, ‘The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency Concerning Their Status, Privileges and Immunities’ Yearbook of the International Law Commission (1967), vol. II, 222. 589 Pierre Freymond, ‘Remarques sur l’immunite´ de juridiction des organisations interna- tionales en matie`re immobilie`re’ (1955–6) 53 Friedens-Warte 365–79 at 369. 590 Article 11 of the EC Privileges and Immunities Protocol. 148 descriptive analysis to diplomatic law, like the FAO Constitution obliging member states to ‘accord to the Organization all the immunities and facilities which it accords to diplomatic missions’. 591 Such treaties conferring ‘customary privileges and immunities’ 592 might indeed be interpreted as referring to customary law governing the subject. However, this conclusion is far from compelling. The term ‘customary’ could also be interpreted with a less technical and more literal meaning. One could regard the reference to ‘customary privileges and immunities’ to be a convenient shorthand of the drafters referring to the ‘usual’ grant of privileges and immunities. Thus, ‘customary’ would rather be synonymous to ‘traditional’ than meant to imply a customary law rule on the subject. 593 Next to treaty provisions, domestic legislation could also serve to evidence state practice of according immunity from suit to international organizations. The domestic grant of immunity might gain evidentiary value for a customary principle where it does not merely implement a treaty obligation or where it refers to immunity provided for ‘under international law’. 594 However, the grant of a broader range of immuni- ties or a wider scope of jurisdictional immunity than mandated by treaty obligations can also be a mere unilateral decision of a host state. According to many authors, national court decisions seem to favour immunities of international organizations even in the absence of treaty provisions. 595 A closer look, however, reveals that this claim cannot be regarded as universally confirmed by judicial practice. A 1961 German case involving the WEU 596 holds that a rule of custom- ary international law obliges member states to accord immunity to the international organization that they have formed. In the employment dispute of Hetzel v. Eurocontrol, 597 another German case, an administrative court of first instance seemed to have relied on similar grounds. The tribunal expressly held that, with the grant of legal personality to the organization and its capacity to regulate its internal staff affairs, Euro- 591 Article XVI(2) of the FAO Constitution. 592 Cf. the further examples given by Bekker, The Legal Position, 148. 593 Reuter, in Yearbook of the International Law Commission (1977), vol. I, 209, para. 12. 594 E.g., Article 1(2) of the Austrian 1977 Law on the Granting of Privileges and Immunities to International Organizations provides that, in addition to the privileges and immuni- ties contained in the Act, such rights might be conferred upon international organiz- ations according to treaties or ‘as provided, for the fulfilment of its functions, by the generally recognized rules of international law’. 595 Schro¨er, ‘De l’application de l’immunite´ jurisdictionnelle’, 712; and Morgenstern, Legal Problems,5. 596 Amtsgericht Bonn, 13 August 1961. For more detail, see pp. 67f and 248 below. 597 Administrative Court Karlsruhe, 5 July 1979, Appellate Administrative Court Baden- Wu¨rttemberg, 7 August 1979. 149avoidance techniques control was formed as an international organization which enjoyed immunity from the jurisdiction of the courts of the member states with regard to employment disputes even without an express grant of such immunity. 598 The appellate administrative court upheld the lack-of-Ger- man-jurisdiction decision based on the grant of exclusive competence over employment disputes to the ILO Administrative Tribunal. It doub- ted, however, the existence of a customary rule conferring immunity upon international organizations. 599 Whether international organizations enjoyed immunity from German jurisdiction as a matter of customary international law was also at issue in a lengthy and complex litigation concerning the power of the European School in Munich to determine the tuition charged to its students. Significantly, the deciding courts were split over this question and the Bavarian appellate Administrative Court even overruled its own previous decision. A group of parents complained against the raising of school fees and brought suit before German administrative courts. In Xet al.v.European School Munich I, 600 they sought a preliminary injunction against the school’s 1988/89 ‘administrative’ tuition decisions which was denied by a German administrative court. On appeal, the Bavarian Ad- ministrative Court upheld the jurisdiction of the German courts, reason- ing that the school’s personality clause conferred capacity to sue and to be sued and that no express exemption from German adjudicative juris- diction was provided for. 601 It rejected, however, the claim on the merits. In Xetal.v.European School Munich II, 602 the same plaintiffs sought the annulment of the school’s 1989/90 tuition decisions. The lower adminis- trative court in Munich rejected this application on the merits. With 598 ‘. . . ist die Antragsgegnerin als eine internationale Organisation gebildet worden, die im Streit mit ihren Bediensteten Immunita¨t vor den nationalen Gerichten der Vertrag- staaten genießt, ohne daß es hierzu einer ausdru¨cklichen Verleihung bedurft ha¨tte’. Administrative Court Karlsruhe, 5 July 1979 (VIII 61/79). 599 ‘Ob man von einem (gewohnheitsrechtlichen) Satz des allgemeinen Vo¨lkerrecht sprechen kann, demzufolge internationale Organisationen der staatlichen Gerichtsbar- keit entzogen sind, ist zweifelhaft.’ Administrative Court Baden-Wu¨rttemberg, 7 August 1979 (IV 1355/79). 600 Bavarian Administrative Court Munich, 23 August 1989. 601 ‘Gema¨ß . . . Art. 6 Satz 3 der Satzung der Europa¨ischen Schule kann die ESM vor Gericht klagen und verklagt werden. Da hierbei nicht auf eine europa¨ische Gerichtsbarkeit Bezug genommen wird, insbesondere die Europa¨ischen Schulen nicht der Zusta¨ndigkeit des Gerichtshofs der Europa¨ischen Gemeinschaften unterstellt werden, ist diese Aus- sage dahin zu verstehen, daß die Europa¨ischen Schulen sich der Gerichtsbarkeit des Landes ihres jeweiligen Sitzes unterwerfen.’ Bayerischer Verwaltungsgerichtshof Munich, 23 August 1989; (1989) 24 EuropaRecht 359 at 361. 602 Administrative Court Munich, 29 June 1992, Bavarian Administrative Court Munich, 15 March 1995, Federal Administrative Court, 9 October 1995. 150 descriptive analysis similar reasons as the appellate administrative decision in Xetal.v. European School Munich I, 603 it upheld its jurisdiction over the defendant institution. In addition, it found that no treaty provision provided for the school’s immunity from jurisdiction and expressly ruled out the possibil- ity of a customary rule of immunity for an international organization. 604 This denial of immunity was reversed by the Bavarian appellate Adminis- trative Court which held that the European School’s personality clause providing for its capacity to sue and to be sued did not imply a renunci- ation of immunity. The court extensively addressed the issue of the school’s immunity from jurisdiction in the absence of an express treaty or domestic law provision. It relied on scholarly opinion supporting a customary immunity for international organizations and reasoned that such immunity resulted, inter alia, ‘from the almost identical provisions contained in the existing agreements and from the analogous interests involved’. 605 It found, however, that such immunity was not absolute. Rather, it was considered to be functionally limited. In particular, the court established that such immunity did not cover acts ultra vires the school’s capacity to act. The court held that the European School did not have the capacity to issue administrative tuition decisions and that the German courts had jurisdiction to identify such a transgression of an international organization’s powers where its ultra vires character was manifest. 606 It thus gave judgment for the plaintiffs. 607 603 Bavarian Administrative Court Munich, 23 August 1989. 604 ‘Eine Befreiung nach den allgemein anerkannten Regeln des Vo¨lkerrechts (Art. 25 GG) scheidet aus, denn diese kommt nur in Betracht im Verha¨ltnis zu ausla¨ndischen Staaten und den fu¨r sie handelnden Organen bzw. Repra¨sentanten, nicht aber kommt sie zwischenstaatlichen Organisationen und deren Angeho¨rigen zugute.’ Xetal.v.European School Munich II, Bavarian Administrative Court Munich, 29 June 1992, (unpublished). 605 ‘[Immunita¨t kraft Gewohnheitsrecht] ergibt sich aus . . . dem nahezu identischen Regelungsgehalt der jeweils bestehenden ausdru¨cklichen Abkommen und der dazu analogen Interessenlage.’ Administrative Court, 7th Chamber, Munich, 15 March 1995, (1996) Deutsches Verwaltungsblatt 448. 606 ‘Mit dem Erlaß von als Verwaltungsakte zu verstehenden Bescheiden u¨ber die Erhebung von Schulgeld gegenu¨ber den Eltern ‘anderer Kinder‘, die nicht Angeho¨rige der Euro- pa¨ischen Patentorganisation sind, u¨berschreitet die Europa¨ische Schule Mu¨nchen offen- kundig die ihr nach den ihr zugrundeliegenden vo¨lkerrechtlichen Vertra¨gen zu- stehende Rechtsmacht (Handeln ‘ultra vires‘); sie unterliegt insoweit der deutschen Gerichtsbarkeit; die Offenkundigkeit dieser Befugnisu¨berschreitung kann jedenfalls dann von den nationalen Gerichten festgestellt werden, wenn sie sich aus dem eigenen Vortrag der internationalen Organisation ergibt.’ Bavarian Administrative Court, 7th Chamber, Munich, 15 March 1995, (1996) Deutsches Verwaltungsblatt 448. 607 The German Federal Administrative Court did not allow the school’s appeal because it did not consider that a legal issue was of basic importance merely by the fact that it involved the law of international organizations and that an international organization regarded a national court decision as wrongly decided. Federal Administrative Court, 9 October 1995. 151avoidance techniques In Mendaro v. World Bank 608 the Court of Appeals of the District of Columbia upheld the view that immunity from suit by employees of the organization was one of the most important protections granted to international organizations and that this immunity ‘is now an accepted doctrine of customary international law’. 609 One is, however, well advised to use a certain caution with US decisions affirming a particular rule as customary international law. A good example is the numerous human rights cases affirming customary international standards. Many of them show a notorious absence of state practice and opinio iuris analysis. 610 Other US cases do not discuss the existence of customary immunity at all. In Steinberg v. International Criminal Police Organization 611 a District of Col- umbia court thought that Interpol – which at that time was not desig- nated under the IOIA 612 as enjoying immunity – could be sued for libel without any restriction. In the event, customary jurisdictional immunity was not even considered. In a number of cases Italian courts have relied on a customary immun- ity standard. For instance, in ICEM v. Di Banella Schirone 613 the Italian Supreme Court, the Corte di Cassazione, considered the restrictive im- munity standard in the headquarters agreement 614 to be identical with one under customary law. In Cristiani v. Istituto italo-latino-americano 615 and Galasso v. Istituto italo-latinoamericano, 616 two employment disputes involv- ing the Italo-Latin-American Institute, the Italian Supreme Court con- firmed that international organizations enjoyed restrictive immunity as a matter of customary law. 617 Customary immunity from suit of international organizations in non-member countries The problem of customary immunities of international organizations is most important before domestic courts in non-member states where no seat or headquarters or other bilateral agreement regulates the issue. In practice, however, courts face this kind of situation relatively infrequent- ly. This may account for the few and inconsistent views on the matter. In 608 US Court of Appeals, 27 September 1983. 609 717 F. 2d 610 at 615 (DC Cir. 1983). 610 The willingness of US courts to accept a certain rule as customary – in particular in the human rights context – frequently stems from the lack of binding treaty obligations. Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1992) 12 Australian Yearbook of International Law 82–108 at 84ff. 611 US Court of Appeals DC Cir., 23 October 1981. 612 Restatement (Third), § 467, Reporters’ Note 1. 613 Corte di Cassazione, 8 April 1975. 614 See p. 190 below. 615 Tribunale Roma, 17 September 1981; Corte di Cassazione, 23 November 1985. 616 Corte di Cassazione, 3 February 1986. 617 For more detail, see pp. 194ff below. 152 descriptive analysis [...]... duties: accordingly, courts have concluded that international organizations are exempted from a duty to produce evidence that may be in their possession. 655 652 653 654 655 In a memorandum concerning UNRWA’s immunity from jurisdiction, the UN Office of Legal Affairs added ‘[a] word about the nature of international organization immunity’ and stated that ‘[t]he immunity accorded international organizations. .. non-application of international law can operate as a tool to assert jurisdiction over international organizations by denying their (internationally owed) immunity from suit.41 Denying the international applicability of immunity instruments Without (or rather before) referring to the specifics of the relationship between international law and domestic law, national courts may avoid applying a rule of international. .. 1940s at the time before the passing of the IOIA – to deny any customary international law duty to extend any privileges and immunities to international organizations Lawrence Preuss, ‘The International Organizations Immunities Act’ (1946) 40 American Journal of International Law 332– 45 at 333 a v o id a nce t echn iq ues 155 immunities in the US,632 coupled with the reluctance of the US courts to recognize... board of directors, parts of the law concerning the authority to give a power of attorney were, however, inapplicable (1 954 ) 48 American Journal of International Law 668 Cf Institut de droit international, ‘The Activities of National Judges and the International Relations of Their State’ (1993 I) 65 Annuaire de l’Institut de Droit International 327–448 at 342ff Ministry of Labour, 25 November 1979 178... qualify as international organizations under general international law will result from an explicit provision of domestic law, recognizing such entities as international organizations8 or at least granting them the same or similar privileges and immunities as enjoyed by international organizations. 9 6 7 8 9 Annual Report of the Director of UNRWA, 12 UN GAOR, Supp (No 14) 47, note 34, UN Doc A/3686 (1 957 )... 65ff above Superior Court Montreal, 2 December 1 952 s tr a t e gi e s o f jud i cial i nv ol v em en t 177 legal proceedings had been performed by the wrong organ of an international organization.40 Denying immunity In most cases involving international organizations before national courts a potential threat to their jurisdiction will stem from an organization’s enjoyment of immunity under international. .. be limited in its scope, etc Most of the cases where national courts actively seek to exercise jurisdiction over disputes involving international organizations concern organizations as defendants whose potential immunity may deprive domestic tribunals of their adjudicative competence Where international organizations appear as plaintiffs, national courts regularly have to address only the issue of whether... la nature et de ses ressources, an NGO, which the Department regarded as a ‘quasi-governmental’ international organization reprinted in (1986) 42 Annuaire suisse de droit international 72ff Two relatively recent Philippine cases also demonstrate how NGOs can be treated as international organizations by legislative fiat First, was the case of International Catholic Migration Commission v Pura Calleja,... most national courts seem to be very ready to qualify an entity as a public international organization where this characterization might be at least doubtful as a matter of international law (this tendency probably reflects an inclination of domestic courts to lay a foundation to accord immunity which enables them to subsequently avoid decision-making) In most cases the qualification as international organizations. .. a nce t echn iq ues 153 general, where national courts have to decide upon customary immunity of ‘foreign’ organizations, they seem to be rather reluctant to acknowledge a customary immunity from suit enjoyed by international organizations where the forum state does not participate This clearly contrasts with the tendency to accept the domestic legal personality of such an international organization.618 . Relations Between States and International Organizations (UN Doc. A/CN.4/304) Yearbook of the International Law Commission (1977), vol. II, Part One, 140 55 at 1 45. 56 8 Cf. third preambular paragraph. Relations Between States and International Organizations (UN Doc. A/CN.4/304) Yearbook of the International Law Commission (1977), vol. II, Part One, 140 55 at 152 . 58 7 Article I(1) of the UN–Swiss. customary rules. 58 4 58 0 See p. 148 below. 58 1 Richard R. Baxter, ‘Multilateral Treaties as Evidence of Customary International Law’ (19 65 6) 41 British Yearbook of International Law 2 75 300 at 277ff;