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.

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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 case565 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.

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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.

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