International Organizations Before National Courts Part 3 pot

ticular those which appear to be neutral in the sense of not to favour

specific persons. Clearly, immunity for a certain group of persons is not

neutral, but rather unilaterally places the burden upon the party seeking

judicial redress.5

Among those other doctrines may be included ‘non-recognition’ the￾ories, relating to a concept of the legal personality of international

organizations or to the legal significance of their activities; procedural

law requirements, relating to the ripeness or justiciability of a dispute

that might disqualify certain issues from judicial scrutiny;6 and the

‘political questions’, ‘act of state’ or similar doctrines.

Compared to these broader and not necessarily international-law-re￾lated concepts, the issue of immunity is more concrete and will serve as a

method of last resort for courts to avoid adjudication of a claim against

an international organization.

Non-recognition as a legal person under domestic law

Legal personality is generally regarded as the capability to possess rights

and duties under a specific system of law.7 An international organiz￾ation’s status as a ‘legal’, ‘juridical’ or ‘juristic’ person8 under domestic

law is a prerequisite not only for entering into legal relationships,9 but

5 The subsequent analysis will try to show that the prima facie neutrality of other ‘avoidance

doctrines’ is not necessarily impartial in all cases.

6 Those requirements of domestic (procedural) law generally apply to cases with an ‘inter￾national’ aspect as well as to domestic cases. E.g., it appears well accepted in the US that

principles as to jurisdiction, standing, mootness, ripeness, etc. apply to ‘foreign relations

cases’ as to others. Restatement (Third) of the Law, The Foreign Relations Law of the United States

(ed. American Law Institute, St Paul, MN, 1987), § 1, Reporters’ Note 4. The conclusion

seems well founded, since these adjudicative principles relate to a court’s power of

decision-making in general.

7 Klaus F. Ro¨hl, Allgemeine Rechtslehre (Cologne, Berlin, Bonn and Munich, 1994), 471; see also

the ICJ’s definition of the international personality of the United Nations as an entity

‘capable of possessing international rights and duties’. Reparation for Injuries Suffered in the

Service of the United Nations, Advisory Opinion, (1949) ICJ Reports 174 at 179. 8 All these terms are used in treaties, legislation and the literature on the subject. Cf. pp. 12ff

above. It appears, however, that the expression ‘legal’ person or personality is predomi￾nant. It will thus mainly be used here.

9 Gu¨nther Beitzke, ‘Zivilrechtsfa¨higkeit von auf Staatsvertrag beruhenden internationalen

Organisationen und juristischen Personen’ (1969) 9 Berichte der Deutschen Gesellschaft fu¨r

Vo¨lkerrecht 77–119 at 84. Friedrich Schro¨er, ‘Die Anwendung von Landesrecht auf vo¨lker￾rechtliche Zweckverba¨nde’ (1965) 25 Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lker￾recht 617–56 at 620. Cf. also the case of the International Commission for the Northwest

Atlantic Fisheries recounted by J. E. Carroz and A. G. Roche, ‘The Proposed International

Commission for the Conservation of Atlantic Tunas’ (1967) 61 American Journal of Interna￾tional Law 673–702 at 697ff. Like most other intergovernmental fisheries organizations, its

avoidance techniques 37

also for being a party to legal proceedings before domestic courts. Thus,

only an international organization endowed with domestic legal person￾ality can be subjected to judicial proceedings in national courts. Only

then is a potential exemption ratione personae10 (for example, immunity)

or ratione materiae11 (for example, lack of adjudicative power) of interest.

Accordingly, the most radical method available to national courts in

order to avoid adjudication of a dispute involving an international organ￾ization is to regard international organizations as non-entities, unable to

bring suit or to be sued. Usually this kind of non-recognition or de￾recognition will be framed in the language of lack of personality. Immun￾ity might clearly become secondary, or even irrelevant, if no domestic

personality is granted to an international organization, because then

there is no possibility of suing the non-entity in domestic courts.12 Only if

an entity can be considered a legal person under the forum state’s law,

may it play a role before its courts. An entity that does not legally exist

cannot sue or be sued before domestic courts. This argument seems

universally applicable and of a compellingly simple logic. Nevertheless, it

has only rarely entered the actual case law, not at least because the

arguments, if raised at all, appear very artificial.

Thus, the issue of legal personality, both international and domestic, of

international organizations – although there are scholarly disputes over

whether this is an objective or merely a derivative personality13 – has to be

addressed in an inquiry focusing on immunity and other jurisdictional

issues. Since many authors consider that there is a direct link between

international and domestic legal personality – that is, that the first is a

precondition of the second – and since the issue of the scope or extent of the

personality of international organizations will show similarities, the issue

of international legal personality will be dealt with as well. To address the

constituent agreement was silent on the issues of (domestic) legal personality. When the

organization intended to contract for an insurance plan for its staff, it was advised by

Canada as headquarters state that it was considered not to have legal authority to enter

into a contract. Cf. also the criticism by Seidl-Hohenveldern, Corporations, 102, qualifying

this Canadian ruling as an ‘astonishing exercise of legal positivism’. 10 Cf. pp. 127ff below. 11 Cf. pp. 99ff below. 12 Christian Dominice´, ‘L’immunite´ de juridiction et d’exe´cution des organisations interna￾tionales’ (1984 IV) 187 Recueil des Cours 145–238 at 164: ‘[A]ccorder des immunitie´s a` une

organisation qui n’aurait pas, en droit interne, la personnalite´ juridique, n’aurait pas

grand sens, car ce ne serait pas l’organisation qui, par example, devrait eˆtre assigne´e en

justice.’ See also Michael Singer, ‘Jurisdictional Immunity of International Organiz￾ations: Human Rights and Functional Necessity Concerns’ (1995) 36 Virginia Journal of

International Law 53–165 at 67, arguing that the question of legal personality precedes

that of jurisdictional immunity. 13 See pp. 57ff below.

38 descriptive analysis

issue of personality is further useful in view of the intrinsic parallelism

between a functional personality and a functional immunity concept.14

The problem before the courts

A number of cases evidence that domestic legal personality is required for

an international organization to be a party to legal proceedings before a

national court. Although they usually stop short of de-recognizing or

failing to recognize the legal personality of international organizations,

their reasoning clearly demonstrates the essential importance of the

personality of an international organization in order to enable a domes￾tic court to adjudicate the underlying dispute.

The well-known case of Manderlier v. Organisation des Nations Unies and

Etat Belge (Ministre des Affaires Etrange`res)

15 illustrates this point aptly.

Although finally holding that the UN could not be sued before the Belgian

courts because of its absolute immunity in accordance with the General

Convention, the Civil Tribunal of Brussels explicitly reasoned that the UN

was competent to appear in legal proceedings in Belgium as a result of

the legal personality it enjoyed in the territory of each member state by

virtue of Article 104 of the UN Charter.

In another Belgian case, Centre pour le de´veloppement industriel (CDI) v. X,

16

the legal personality of an international organization as a prerequisite to

bring suit was also discussed. CDI, an international organization with its

seat in Brussels, was set up within the framework of the Lome´ Conven￾tions in order to facilitate the development of the industrial sector in the

African, Caribbean and Pacific states. The defendant worked as a market￾ing advisor for CDI. When his employment contract was unilaterally

terminated by his employer, he sought and obtained an arbitral award

granting him substantial damages. Thereupon CDI sued him in Belgian

courts seeking to annul the arbitral award that the employee had ob￾tained in his favour and to annul a lower Belgian court’s exequatur of the

award, permitting its enforcement in Belgium. The defendant claimed,

inter alia, that the action should be declared inadmissible because of the

14 Cf. Edwin H. Fedder, ‘The Functional Basis of International Privileges and Immunities: A

New Concept in International Law and Organization’ (1960) 9 American University Law

Review 60–9 at 63: ‘The reliance on the functional principle in determining the extent of

protection for international organizations . . . did not stop at legal status. The change

from previous practice is also evident in the privileges and immunities accorded to the

organizations.’ See also Bekker, The Legal Position of Intergovernmental Organizations: A

Functional Neccessity Analysis of Their Legal Status and Immunities (Dordrecht, Boston and

London, 1994). 15 Civil Tribunal of Brussels, 11 May 1966; Brussels Appeals Court, 15 September 1969. See

pp. 279f below for the facts of this case. 16 Tribunal Civil de Bruxelles, 13 March 1992.

avoidance techniques 39

claimant’s lack of domestic legal personality. The Belgian court rejected

this contention on the basis that CDI’s legal personality was expressly

recognized in the headquarters agreement with Belgium and probably

also implicitly recognized as an automatic result of the CDI’s interna￾tional legal personality.17 The court ironically questioned how the de￾fendant might have entered into an employment contract if CDI had

lacked legal personality.18

A similar situation arose in two legal proceedings instituted by the UN

and UNRRA against former employees in order to recover moneys paid to

them in excess of the amount due. Both in United Nations and UNRRA v. B19

and in UNRRA v. Daan,

20 the defendants contended that the plaintiff

organizations did not have the legal personality required to bring suit in

the domestic courts. Both courts rejected this argument. In the former

case, brought by the UN and UNRRA collectively in order to recover

payments erroneously made to the defendant, without specifically refer￾ring to the domestic legal personality clauses contained in the treaty

establishing UNRRA21 or to the UN Charter, a Belgian court simply stated

that Belgium had ratified both instruments and that such ‘public interna￾tional establishments, recognized by Belgian law, had thus juridical

personality in Belgium’.22 In UNRRA v. Daan, a Dutch court found that, as a

result of a treaty provision according to which UNRRA had the power to

acquire and transfer property, to conclude contracts and to perform all

legal acts appropriate to the fulfilment of its tasks, ‘it must also be

considered a legal person under Dutch law, and as such competent to act

as a party to legal proceedings’.23

In Arab Monetary Fund v. Hashim (No. 3)

24 the plaintiff organization

almost failed in the English courts because of the uncertainty involving

its legal status under English law. In the course of this litigation, which

went all the way to the House of Lords, the Court of Appeal actually

denied its adjudicative power over the dispute as a result of what it

perceived as the Fund’s lack of legal personality under domestic law.25

17 See pp. 59ff below. 18 (1992) Actualite´s du droit 1377 at 1381. 19 Tribunal Civil of Brussels, 27 March 1952. 20 Cantonal Court Amersfoort, 16 June 1948, District Court Utrecht, 23 February 1949,

Supreme Court, Decision of 19 May 1950. 21 Agreement for United Nations Relief and Rehabilitation Administration, Washington, 9

November 1943. 22 (1953) Pasicrisie Belge III, 66: ‘que ces e´tablissements publics internationaux, e´tant recon￾nus par la loi Belge, ont donc la personnalite´ juridique en Belgique.’ 23 (1949) 16 ILR 337. 24 Chancery Division, 9–12 October, 14 November 1989; Court of Appeal, 26–27 March, 9

April 1990; House of Lords, 26–28 November 1990, 21 February 1991. 25 See pp. 64ff below for a detailed discussion.

40 descriptive analysis

In practice, courts may employ a number of different methods to

de-recognize an international organization’s domestic legal personality

and its capacity to claim or defend its rights and obligations in a domestic

forum: courts might feel empowered to regard the legal personality of an

international organization as non-existent if there is no explicit or impli￾cit international rule bestowing such personality or if any such rule is not

directly applicable under domestic law. They may also do so if there is no

corresponding domestic rule implementing it or if there are no conflict of

laws rules allowing a domestic forum to recognize the ‘foreign’ personal￾ity of an international organization, etc.

Before discussing these specific avoidance techniques, the normal case

where personality clearly exists should be analyzed. Since this issue

usually depends upon the existence of a domestically applicable rule

attributing personality to international organizations, it largely becomes

a question of the sources of personality of international organizations.

The normal approach to domestic legal personality

The following will provide an overview of how domestic legal personality,

as a prerequisite to appearing in national courts, may become relevant in

various national legal orders. Since it is frequently asserted that there is

an intrinsic relationship between such domestic legal personality and

international legal personality the latter will also be addressed.

Different approaches between member and non-member states

There seems to be a fundamental difference between where the issue of

the domestic legal personality of an international organization is raised

before a court of a member state of that organization or before a court in

a third country. In general, member states are under an international

obligation to accord such personality to an organization – pursuant to its

constituent treaty or possibly under customary international law26 –

while non-member states – in the absence of specific treaty obligations27 –

remain free to recognize an organization as a legal person under their

domestic law. Member states may fulfil their international law obliga￾tions by regarding the treaty or customary requirements to confer per￾sonality as directly applicable in the sphere of domestic law; non-member

states are likely to rely on their domestic legislation or on other rules of

domestic law to allow them to recognize the legal personality of an

international organization.

The cases analyzed will show, however, that it is rarely a problem of

26 See pp. 45f below. 27 See pp. 43f below.

avoidance techniques 41