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 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U586463 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 I HESS'S . F 35iF Library British How/ of Political and Economic Science 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 2